Could 'Lord of the Rings' have been public domain today?
It's one of those accidents of timing that I would decide to finally watch the documentary "These Amazing Shadows" on January 1, the same day that I read an article about what works would have been entering the public domain on January 1, 2012, if not for a new law that revised copyright in the United States in the late '70s.
Even so, those two different bits of information at the same time caused me to really consider the idea of the public domain and what that even means. Look at this year's Oscar poster, look at something like "The Artist" or "Hugo," or look at that documentary, and it's apparent that the main message Hollywood wants to sell you is that the memories Hollywood creates are the things that we all share, that unite us.
Isn't that the big idea behind public domain in the first place?
If you create something that everyone eventually internalizes, something like… let's pick a random example that has nothing to do with anything I happened to publish in the last week on this blog like, say, "Lord Of The Rings"… something that is hugely influential and widely commercialized and heavily exploited… then after a certain amount of time, you're going to have to expect things like fan fiction and different interpretations and parody and homage and plain old fashioned borrowing, and there comes a point where law was designed to finally say, "Okay, everyone, have at it. The creator has had enough time with it. Everyone knows it at this point. It's all yours. Do with it what you will." That's what the law originally had in mind, with a set time period that could be renewed if the author still had an active interest in the thing. If not, if no one stepped forward to claim something, then it would become public domain.
In 1978, the law was revised, and the result is a maddening mess, encouraged by giant corporate copyright mills like Disney, and I get it. I fully understand why they want to continue to push and twist and fight for control of certain things. I think the period in which the "creator," which has become a corporate behemoth instead of a person, can exploit a piece of successful material has become a much more refined and long-lived process that originally anyone understood or could imagine.
It is genuinely shocking to realize that under one interpretation of the law, all three parts of Tolkien's "Lord Of The Rings" would be public domain as of today. I'm sure after the tens of millions of dollars in legal fees spent by MGM, New Line, and Warner Bros over the last five years, all involved are very, very happy that isn't the case. They have a strong financial stake in making sure that those copyrights and the copyrights to everything else that Tolkien ever wrote stay locked up tight for as long as possible. That's what they were fighting for. Songs like "Blue Suede Shoes" and "Tutti Fruitti" and "Unchained Melody" and "Ain't That A Shame" have long since become part of our cultural wallpaper, shared memory that you can call up at an instant. A big part of film in the '70s and '80s was capturing an agreed-upon record of what the '50s and '60s were like, and now that we're in 2011, we're seeing people do the same for the '80s and '90s. We want to make movies about the way we remember the eras we lived through. God, I feel like I lived through the '60s myself after living through every hour of film about it that was released during the Boomer post-"Big Chill" nostalgia explosion. And I liked a lot of it. But it's about a time I have no real memory of. My memory is shaped by every use of that music, every use of certain TV clips or real footage or news faces. I'd argue that at this point, the '60s in general should be public domain. You should be able to do something and say whatever you want about the '60s and use whatever archived whatever you want because it's history at this point. It's something we've boxed up and processed and digested and that, to me, is what the public domain is.
That article is, of course, the tip of the iceberg in the larger conversation about copyright law and the ever-changing legislative approach to the subject. That site, in general, is a good place to poke around if the subject interests you.
I think it's real hard to claim any position in the conversation is particularly moral. The law exists to deal with financial realities and potentials, and the broader conversation is more about the idea of how we digest media from decade to decade and as it recedes into memory.