9th February 2021

Copyright and the public domain in the UK: A guide

Among the daily barrage of COVID-19 stories, you might be forgiven for missing one significant headline: on 1st January 2021, F Scott Fitzgerald’s 1925 novel The Great Gatsby entered the US public domain.

In other words, the copyright in the novel - which protects original artistic works from being copied or used in an unauthorised manner - has expired. This means that the novel is now free to be used, adapted or expanded on by the general public in the US without having to pay a license fee.

Perhaps inevitably, the last few weeks have seen a slew of Gatsby-related projects gradually picking up steam. Alongside a plea amongst fans for a Muppets adaptation of the seminal novel (who wouldn’t want to see Kermit as the enigmatic socialite?), A+E Studios and ITV Studios America have teamed up to develop a single-season “event” series, described as a re-imagining which explores the “New York’s Black community in the 1920s as well as the musical subculture” at that time.

Before you pick up the pen on The Muppets Presents: The Great Gatsby, however, it might be worth familiarising yourself with the rules on copyright and when copyright protection expires in the UK.

What is copyright?

Simply put, copyright is a type of intellectual property law that protects the expression of original ideas.

It gives authors and creators the right to decide how their works are used or exploited, including the exclusive right to copy, issue copies, rent, perform or otherwise communicate the work to the public, and the corresponding right to prevent others from doing any of those acts without authorisation.

In the UK, the rules on copyright protection are set out in the Copyright, Designs and Patents Act 1988 (the “1988 Act”).

How does copyright arise?

There is no formal register of copyright protected works in the UK, and in that respect copyright is quite different from other intellectual property rights such as trade marks.

What kind of works are protected by copyright?

Under the 1988 Act, copyright protection extends to a variety of works including:

Original literary, dramatic, musical or artistic works;
Computer programs and software code;
Databases (in addition to the separate Database Right)
Sound recordings, films or broadcasts; and
Typographical arrangements of published editions.

To benefit from protection under the 1988 Act, the works must be “original” i.e. reflecting the author’s own personality through the making of free and creative choices.

How long does copyright last?

This will depend on a number of factors, such as the type of work at issue and when the work was created.

Literary, dramatic, musical or artistic works. Generally speaking, copyright in these works will expire at the end of the period 70 years from the end of the year in which the author dies. If the work is of unknown authorship, copyright will expire at the end of the period of 70 years from the end of the year in which the work was created. However, if the work was made available to the public during that period, copyright will instead expire at the end of the period of 70 years from the end of the year in which it was first made available.

One notable exception to this is J M Barrie’s Peter Pan. Although the novel’s UK copyright technically expired in 1987, 50 years after Barrie’s death (as was the law at the time), Prime Minister Lord Callaghan successfully drove through an amendment to copyright legislation giving Great Ormond Street Hospital a right to royalties in perpetuity for any performance, publication or broadcast of the play or any adaptation of the play performed in the UK.

Films. Copyright will expire 70 years from the end of the year in which the last principal director, author or composer dies. If the work is of unknown authorship, copyright will last until 70 years from the end of the year of creation or, if made available to the public during that time, 70 years from the end of the year the film was first made available to the public.

Quirks surrounding films and the public domain have frequently arisen in the US. George A Romero’s Night of the Living Dead – one of the most famous horror movies of all time – prematurely entered the US public domain because the film’s distributor failed to put the required copyright notice on theatrical prints of the film. The mistake occurred as a result of a change in the name of the film from Night of the Flesh Eaters to Night of the Living Dead. A copyright notice was included on prints with the former title, but the notice was not carried over to new prints bearing the latter. A grave error…

Sound recordings. Copyright protection lasts for 50 years from the end of the year in which the work was created or, if the work was released during that period, 70 years from the end of the year in which the work was first released.

Typographical arrangements of published editions. The shortest period of the lot, copyright protection for typographical arrangements lasts for only 25 years from the end of the year in which the work was first published. This covers magazines and other such periodicals. It means that if a publisher re-issues The Great Gatsby with its own typographical arrangement, then new copyright would exist in that arrangement of the work.

Broadcasts and cable programmes. Copyright protection lasts for 50 years from the end of the year in which the broadcast was made. That a broadcast is capable of being repeated does not impact on the duration of copyright– it is only the date of the original broadcast that is relevant when determining the period of protection.

Why is copyright duration limited?

It is perhaps reasonable to assume that once a work has been created, copyright protection will apply indefinitely. After all, you created the work - why should anyone else benefit from it?

However, the rights of artists, authors and other creators must be carefully balanced with the ultimate benefit to the public in being able to freely exchange ideas. This is why copyright is limited in duration, and why - in a few years time - we might be seeing Kermit the Frog as Jay Gatsby and Miss Piggy as Daisy Buchanan.

We regularly advise clients on the steps which can be taken to protect and enforce their intellectual property rights, including copyright in creative works. If this is something which you think your business could benefit from, please do not hesitate to get in touch.