Wishing you a belated Happy New Year or, as any particularly passionate intellectual property lovers may say: Happy Public Domain Day! As readers of this blog will know, the 1 January each year marks the day on which copyright protection, in various categories of work and in certain jurisdictions (including the UK), expires and as such enters the public domain (see here for our 2023 blog post about some of our favourite works whose status changed on Public Domain Day last year). But what happens when rights holders are still using their heritage copyright works (and associated brands) when their copyright works expire?
In the UK, copyright lasts until the end of the calendar year in which certain events happen and we’ve set these out in the table below. As such, each January a range of works enter the public domain and can be used freely by the public... or can they? Are we about to see a famous mouse in horror-movie spin offs and a honey-loving bear in NFT collections? Well, it’s not really all that simple and rights-holders may well be able to continue protecting their valuable assets even after the period of copyright protection has expired.
Copyright varies in each territory and the duration of copyright protection for a work depends, amongst other things, on the country you're in (the contents of this article relates to UK copyright protection under CDPA, whereas US works have a different system as do works in other jurisdictions) and there will be quirks for older UK works under older UK copyright legislation as well as other general legislative quirks (such as exceptions for Peter Pan in the UK and work from the Uffizi in Italy). In the US, for example, as a general rule the US Copyright Office explains that for works created after 1 January 1978, copyright protection lasts for the life of the author plus 70 years. While for an anonymous work, a pseudonymous work, or a work made for hire, the copyright lasts for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. Consequently, it is often difficult to determine the cut-off date for the protection of a copyright work…
Back to the UK….
In the UK, films released in 1958 may still be protected by copyright. UK copyright law states that for films, copyright lasts for 70 years from the death of the last to die out of the principal director, the author of the screen play, the author of the dialogue and, where the music was commissioned for the film, the composer of music.
However, there are still some hoops to jump through. Copyright subsists in various forms, and so while the recording of broadcast of a TV show may enter the public domain, people can’t just copy the episode without first clearing usage of the copyright in the underlying scripts and theme music etc, which have a different copyright duration.
UK CDPA Copyright Duration Table
But don’t brands have other rights too?
Back to the famous mouse, bear, or any other famous fictional characters which have entered the public domain in recent years. There are good reasons why we are only seeing a few odd copycats (such as horror movies) and not mainstream proliferation of t-shirts or prequels to original films.
As touched on earlier, the rules on what is or is not still in copyright vary by territory, and it is often hard to determine clear cut-off dates. In addition, for heritage characters and films the matter is complicated by the fictional character forming part of a series of copyright works which have evolved over a long period of time meaning that different iterations of the character will have their own copyright protection starting at a later date. There are also often co-authors or co-contributors to which different rules apply as explored in our table above.
It should also be noted that defining the scope of a character and which elements are protected - and to what degree - is also notoriously difficult even following Shazam Productions Ltd v Only Fools The Dining Experience Ltd & Ors  EWHC 1379 (IPEC) which identified clear elements of the character of ‘Del Boy’ which as present in the scripts were enough to constitute the character as a literary work. Finally, other rights such as registered and unregistered trade marks and even moral rights can also be relevant. For more on the thorny topic of character rights see Duncan Calow’s previous article here, in relation to reports in 2020 of the Conan Doyle rights owners taking infringement action against an adaption of the Enola Holmes book series.
See you next year
So, as the copyright in characters, films, books and more from the 1950s and beyond continue to expire and enter the public domain this conversation will continue to grace our newsfeeds every January – but it is important to remember that that the expiry of certain UK copyright works in a film or character does not signal the end of all IP protection for rights holders.