New year new content out of copyright

Who: Various

Where: UK

When: 1 January 2015

Law stated as at: 1 January 2015

What happened:

Copyright in most creative works will last for the duration of the author’s life, plus 70 years from the end of the year of their death. This means that, at the beginning of every calendar year, a new assortment of works enters the public domain thanks to the expiry of the latest batch of copyright. 1 January 2015 brought a plethora of material into the public domain that advertisers can now employ including, for example, the works of Edvard Munch and Wassily Kandinsky:

This year has also seen what is, reportedly, one of the best-selling works ever published enter the public domain, namely Antoine de Saint-Exupéry’s The Little Prince as well as the works of Ian Flemming which not only include his novels about the world’s most famous spy; James Bond, but also the equally well loved Chitty Chitty Bang Bang.

Why this matters:

A glut of creative works have just entered the public domain and, provided the correct checks have taken place (see below), this opens up a new realm of advertising source material for advertisers to utilise without any hefty royalty fees to be negotiated. Hopefully these works can offer inspiration to advertisers for upcoming marketing campaigns. It is important, however, for advertisers considering international campaigns, to fully explore the different copyright laws and exceptions across multiple territories. Most territories apply the ’70 years from the end of the year of the author’s death’ rule, but caution should always be adopted, as discussed in more detail below.

Caution needed before copying!

A degree of caution must be exercised before rushing off and seeking to exploit works which have apparently fallen out of copyright. The intellectual property rights (and the duration of those rights) which attach to works will vary from jurisdiction to jurisdiction and, before seeking to exploit a previously copyrighted work in any particular jurisdiction, it is necessary first to determine: (i) whether copyright could apply to the work in question in that jurisdiction; (ii) if so, whether the work in question is still within the term of copyright in the particular jurisdiction; and (iii) whether any other legal protection (under other intellectual property laws or otherwise) exists in the particular jurisdiction for the work in question. Failure to carry out these basic checks could result in the incautious marketer receiving an invoice for significant unpaid royalties.

Also, other relevant intellectual property rights may not have expired. For instance if a particular and identifiable photograph of a work of sculpture is used, then the photograph may still be in copyright, so that using this as source for reproduction will potentially give rise to infringement.

Also a separate copyright can subsist in a particular typographical arrangement of a literary work. This is why it has historically been common for publishing houses to come out with their own edition of an author’s works soon after they come into the public domain. The reproduction of any significant part of this particular edition may involve an infringement of the typographical arrangement copyright.

Next year:

As 2 September 2015 will be the 70 year anniversary of the end of World War II, many of the works that will enter the public domain on 1 January 2016 are (as they were this year) the works of those killed during the tragic war. We will provide you all with a reminder nearer the time, but keep an eye out as 1 January 2016 will see works from authors, artists and even an infamous dictator enter the public domain.

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