More than thirty years after it was first privately published in 1928, Lady Chatterley’s Lover became the subject of the most famous obscenity trial in English history. Though the ultimate decision of R v Penguin Books Ltd in favor of the publisher opened a cultural floodgate in that country, the novel was also subject to bans elsewhere, including the United States and Japan. Nearly a century after D. H. Lawrence wrote Lady Chatterley’s Lover — and a world apart as regards attitudes about public morality — it can be somewhat difficult to understand what all the fuss was about. But now that the book has entered the public domain in the United States, it could potentially be made artistically and socially dangerous again.
The same could be said of a number of other notable works of literature, from Virginia Woolf’s sex-switching satire Orlando to Bertolt Brecht’s piece of revolutionary theater Die Dreigroschenoper (known in translation as The Threepenny Opera) to a cultural phenomenon-spawning story like J. M. Barrie’s Peter Pan; or the Boy Who Wouldn’t Grow Up.
These and others are named on this year’s Public Domain Day post by Jennifer Jenkins, director of the Duke Center for the Study of the Public Domain. If not for multiple extensions of copyright law, she notes, all of them would have originally gone public domain in 1984, and we would now have almost four decades’ worth of additional creations reinterpreting, re-imagining, and re-using them. Still, “better late than never!”
At this point in history, the artifacts freed for anyone’s use aren’t just written works, but also films, musical compositions, and even actual sound recordings. These include classic Disney cartoons Steamboat Willie and Plane Crazy, which introduced the world to a certain Mickey Mouse; live-action movies from major filmmakers, like Charlie Chaplin’s TheCircus and Carl Theodor Dreyer’s The Passion of Joan of Arc; and such songs with broad cultural footprints as “Yes! We Have No Bananas,” “When You’re Smiling,” and “Mack the Knife” — or rather “Die Moritat von Mackie Messer,” in the original German from Die Dreigroschenoper. Alas, those of us who want to do our own thing with Bobby Darin’s version will have to wait until February of 2067.
Based in Seoul, Colin Marshall writes and broadcasts on cities, language, and culture. His projects include the Substack newsletterBooks on Cities, the book The Stateless City: a Walk through 21st-Century Los Angeles and the video series The City in Cinema. Follow him on Twitter at @colinmarshall or on Facebook.
We can now “do to Disney what Disney did to the great works of the public domain before him,” according to Harvard law professor and public domain expert, Lawrence Lessig, hailed by The New Yorker as “the most important thinker on intellectual property in the Internet era.”
Disney has been notoriously protective of its control over its spokesmouse, successfully pushing Congress to adopt the Sonny Bono Copyright Extension Act of 1998, which kept the public’s mitts off of Steamboat Willie, and, more to the point, Mickey Mouse, for 25 years beyond the terms of the Copyright Act of 1976.
Walt Disney embraced the freedom to take, change and return ideas from our popular culture. The rip, mix and burn culture of the Internet is Disney-familiar.
Steamboat Willie wasn’t conjured from thin air either. Its plot and title character were inspired by Buster Keaton’s Steamboat Bill, released two months before Disney’s animated short went into production.
A few caveats for those eager to take a crack at the Mouse…
Steamboat Willie’s newfound public domain status doesn’t give you carte blanche to mess around with Mickey and Minnie in all their many forms.
Stick to the music-loving black-and-white trickster with rubberhose arms, button-trimmed short-shorts, and the distinctly rodent-like tail that went by the wayside for Mickey’s appearance in 1941’s The Little Whirlwind.
Nor can Steamboat Willie-era Mickey become your new logo. Plop the character down in new narratives, yes. Use him in a recognizable way for purposes of advertising unrelated products, no.
Mislead viewers into thinking your mash up is Disney-approved at your own risk. A Disney spokesperson told CNN:
We will, of course, continue to protect our rights in the more modern versions of Mickey Mouse and other works that remain subject to copyright, and we will work to safeguard against consumer confusion caused by unauthorized uses of Mickey and our other iconic characters.
Don’t think they don’t mean it.
Author Robert Thompson, the founding director of Syracuse University’s Bleier Center for Television and Popular Culturetold The Guardian that even though “the original Mickey isn’t the one we all think of and have on our T‑shirts or pillowcases up in the attic someplace,” the company is hypervigilant about protecting its assets:
Symbolically of course, copyright is important to Disney and it has been very careful about their copyrights to the extent that laws have changed to protect them. This is the only place I know that some obscure high school in the middle of nowhere can put on The Lion King and the Disney copyright people show up.
Fumi Games is already poised to take a similar gamble with MOUSE, a blood-soaked, “gritty, jazz-fueled shooter” set to drop in 2025:
If you’re not yet ready to take the plunge, Mickey’s pals Pluto and Donald Duck will join him in the public domain later this decade, so don your thinking caps and mark your calendars.
For a more in-depth look at the ways you can — and cannot — use Steamboat Willie-era Mickey Mouse in your own work, Duke University’s Center for the Study of the Public Domain supplies a very thorough guide here.
“In the criminal justice system,” the evergreen Law & Order’s opening credits remind us, “the people are represented by two separate, yet equally important, groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders.”
They fail to mention the life-sized skeleton with ghastly glowing eyes and a camera tucked away inside its skull.
Ms. Shelby’s vision sought to transform the police interrogation room into a haunted house where the sudden appearance of the aforementioned skeleton would shock a guilty suspect into confession.
(Presumably an innocent person would have nothing to fear, other than sitting in a pitch black chamber where a truth-seeking skeleton was soon to manifest before their very eyes.)
The idea may have seemed slightly less far-fetched immediately following a decade when belief in Spiritualism flourished.
False mediums used sophisticated stagecraft to convince members of a gullible public that they were in the presence of the supernatural.
Ms. Shelby’s proposed apparatus consisted of a “structure divided into two chambers:”
…one chamber of which is darkened to provide quarters in which the suspect is confined while being subjected to examination, the other chamber being provided for the examiner, the two chambers being separated from each other by a partition which is provided with a panel upon one side of which is mounted a figure in the form of a skeleton, the said skeleton having the rear J portion of the skull removed and the recording apparatus inserted therein.
The examiner was also tasked with voicing the skeleton, using appropriately spooky tones and a well-positioned megaphone.
As silly as Ms. Shelby’s invention seems nearly a hundred years after the patent was filed, it’s impressive for its robust embrace of technology, particularly as it pertains to capturing the presumably spooked suspect’s reaction:
The rear portion of the skull of the skeleton is removed and a camera casing is mounted in the panel extending into the skull, said camera being preferable of the continuously-moving film-type an having provisions for simultaneously recording pictures and sound waves, or reproducing these, as may be desired or required, the said camera impression upon the having an objective adapted to register with the nose, or other opening, in the skull. The eye-sockets are provided with bulbs adapted to impress different light intensities on the marginsof the film, the central section of the film being arranged to receive the pictures, the variations in the light intensities of the bulbs being governed by means of the microphones, and selenium cells (not shown), which are included in the light circuit and tend to cause the fluctuations of the current to vary the intensity of the light for sound recording purposes, the density of the light film varying with the intensity of the light thus transmitted.
Ms. Shelby believed that a suspect whose confession had been recorded by the skeleton would have difficulty making a retraction stick, especially if photographs taken during the big reveal caught them with a guilty-looking countenance.
Writing on officer.com, Jonathan Kozlowski applauds Ms. Shelby’s impulse to innovate, even as he questions if “scaring a confession out of a guy by being really really creepy (should) be considered coercion:”
Shelby doesn’t seem to have gotten any credit for it and nor am I sure that Shelby was even the first to think of the idea, BUT if you remove the skeleton figure and the red lightbulbs staring into the criminal’s soul was this the inspiration of a mounted surveillance camera?
Allow me to push it even further … imagine your department’s interview room. If you’ve got the camera in the corner (or multiple) let that be. Instead of the skeleton figure just put an officer standing in the corner with a recording body camera. The officer is just standing there. Staring. Sure that’s a MASSIVE waste of time and money — of course. I may be wrong, but if I’m being honest this seems like intimidation.
It also strikes us that the element of surprise would be a challenge to keep under wraps. All it would take is one freaked-out crook (innocent or guilty) blabbing to an underworld connection, “You wouldn’t believe the crazy thing that happened when they hauled me down to the station the other night…”
What sort of horrific special effect could force a guilty party to confess in the 21st century? Something way more dreadful than a skeleton with glowing red eyes, comedian Tom Scott’s experiment below suggests.
Having enlisted creative technologist Charles Yarnold to build Ms. Shelby’s apparatus, he invited fellow YouTubers Chloe Dungate, Tom Ridgewell, and Daniel J Layton to step inside one at a time, hoping to identify which of them had nicked the cookie with which he had baited his crime-catching hook.
The participants’ reactions at the critical moment ranged from delighted giggles to a satisfying yelp, but the results were utterly inconclusive. Nobody ‘fessed up to stealing the cookies.
It doesn’t take children long to suspect that Santa Claus is actually their parents. But if Mom and Dad demonstrate sufficient commitment to the fantasy, so will the kids. This must have held even truer for the family of the 20th century’s most celebrated creator of fantasies, J. R. R. Tolkien. Before Tolkien had begun writing The Hobbit, let alone the Lord of the Rings trilogy, he was honing his signature storytelling and world-building skills by writing letters from Father Christmas. The toddler John Tolkien and his infant brother Michael received the first in 1920, just after their Great War veteran father was demobilized from the army and made the youngest professor at the University of Leeds. Another would come each and every Christmas until 1943, two more children and much of a life’s work later.
Every year, Tolkien’s Father Christmas had a great deal to report to John, Michael, and later Christopher and Priscilla. Apart from the usual hassle of assembling and delivering gifts, he had to contend with a host of other challenges including but not limited to attacks by marauding goblins and the accidental destruction of the moon.
The cast of characters also includes an unreliable polar-bear assistant and his cubs Paksu and Valkotukka, the sound of whose names hints at Tolkien’s interest in language and myth. Since the publication of the collected Letters From Father Christmas a few years after Tolkien’s death, enthusiasts have identified many traces of the qualities that would later emerge, fully developed, in his novels. The spirit of adventure is there, of course, but so is the humor.
Understanding seemingly from the first how to fire up a young reader’s imagination, the multitalented Tolkien accompanied each letter from Father Christmas with an illustration. Colorful and evocative, these works of art depict the scenes of both mishap and revelry described in the correspondence (itself stamped with a Tolkien-designed seal from the North Pole). How intensely must young John, Michael, Christopher, and Priscilla have anticipated these missives in the weeks — even months — leading up to Christmas. And how astonishing it must have been, upon much later reflection, to realize what attention their father had devoted to this family project. Growing up Tolkien no doubt had its downsides, as relation to any famous writer does, but unmemorable holidays can’t have been one of them.
Based in Seoul, Colin Marshall writes and broadcasts on cities and culture. His projects include the book The Stateless City: a Walk through 21st-Century Los Angeles and the video series The City in Cinema. Follow him on Twitter at @colinmarshall or on Facebook.
Do you like being right? Of course, everyone does. Are you successful at convincing others? That’s a tougher one. We may politely disagree, avoid, or scream bloody murder at each other, but whatever our conflict style, no one is born, and few are raised, knowing how to persuade.
Persuasion does not mean coercion, deceit, or manipulation, the tactics of con artists, underhanded salespersons, or stereotypically untrustworthy lawyers….
Persuasion is about shifting others’ point of view, respectfully and charitably, through the use of evidence and argument, ethical appeals, moving stories, and “faith in the power of your ideas,” as Neal Katyal explains in his TED presentation above, “How to Win an Argument (at the U.S. Supreme Court, or anywhere).”
Katyal’s job as a Supreme Court litigator makes him an authority on this subject. It may also distract you with thoughts about the current Court power struggle. Try to put those thoughts aside. In places where reason, evidence, and ethics have purchase, Katyal’s advice can pay dividends in your quest to win others over.
In his first case before the Court a “handful of years” after the 9/11 attacks, he represented Osama bin Laden’s driver in a suit pressing to recognize Geneva Convention rules in the war on terror and to rule Guantanamo unconstitutional. His opponent, the Solicitor General of the U.S., had argued 35 cases before the court; “I wasn’t even 35 years old,” Katyal says. He won the case, and he’ll tell you how.
His most important lesson? Winning arguments isn’t about being right. It isn’t about believing really, really hard that you’re right. Persuasion is not about confidence, Katyal insists. It’s about empathy. Oral arguments in the courtroom (which judges could just as well read in transcript form) show us as much, he says.
When his legal expertise was not helping in preparation for the big trial, Katyal felt desperate and hired an acting coach, who trained him in such techniques as holding hands while making his arguments. What? Yes, that’s exactly what Katyal said. But he did it, and it worked.
Holding hands with the Justices isn’t an option in court, but Katyal found other ways to remind himself to stay close to what mattered, wearing accessories his parents had given him, for example, and writing his children’s names on a legal pad: “That’s why I’m doing this, for them. To leave the country better than I found it.”
Once he had established his private reasons for caring, he was ready to present his public reasons. As the old saying goes, “people don’t care how much you know, until they know how much you care.” The facts absolutely matter, yet the burden of showing how and why facts matter falls to the persuader, whose own passion, integrity, commitment, etc. will go a long way toward making an audience receptive.
This advice applies in any situation, but if you’re wondering how to move Katyal’s advice online.… well, maybe the ultimate lesson here is that we’re at our most persuasive when we’re close enough—physically or virtually—to take somebody’s hand.…
When Helen Keller was only twelve years old, she stood accused of plagiarizing a short story. A tribunal acquitted her of the charges, but when her dear friend Mark Twain read about the incident years later, he strenuously protested, exclaiming in a 1903 letter, “the kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterance—is plagiarism.”
Given the finite number of possible narratives, and combinations of phrases, words, and syllables, he’s got a point, though it wouldn’t hold up in court where the question of intent comes into play.
Litigious artists and their estates frequently sue other artists whose work is too close to what they claim as their own invention. Twain might say (his own copyrights aside) that the idea of inventing art from scratch is an “owlishly idiotic and grotesque” fantasy. He might say so, for example, of the recent legal decision that keeps Woody Guthrie’s “This Land is Your Land” a form of private property, despite its author’s desire for anyone and everyone to sing and record the song. (Guthrie’s daughter Nora claims she is protecting it from “evil forces” who would misuse it.)
If literature is mostly plagiarism, what about music? How is it possible to copyright melodies when they float through the cultural ether, appearing in similar forms in song after song around the world? What would have become of the blues, bluegrass, and nearly every form of traditional folk music from time immemorial had copyright law prevented unauthorized borrowings? These are questions judges and juries often ponder when faced with two similar sounding pieces of music.
In one recent case, for example, a jury found that pop star Katy Perry had “infringed upon the copyright of Flame, a Christian rapper who’d posted a song” with the same melody as her song “Dark Horse,” even though Perry “insisted that she’d never heard of the song or the rapper” as Alexis Madrigal writes at The Atlantic. “For some musicians, musicologists, and lawyers, the verdict felt scary; after all, large numbers of songs now live on SoundCloud and YouTube. It became thinkable to ask: Could the world run out of original melodies?”
This seems unlikely given the “functionally infinite possibilities” for melodies resulting from “all the notes and all the traditions of music around the world.” However, when it comes to Western pop music and the more limited parameters that govern its composition, the number reaches a more “comprehensible part of finitude.” Programmer, lawyer, and musician Damien Riehl and his fellow programmer and musician Noah Rubin decided to “brute force” their way out of the problem entirely, as Riehl tells Adam Neely above, using an algorithm that generated all of the melodies in the range they’d seen in copyright lawsuits.
By generating all possible melodies above the middle‑C octave as MIDI files, the two artists hope to head off costly infringement litigation that can hobble creative freedom. Riehl explains the ingenious concept in the TEDx Minneapolis talk at the top of the post, beginning with the issue of “subconscious” copyright infringement that sometimes forces artists to pay out millions in damages, as happened to George Harrison when he was sued for plagiarizing “My Sweet Lord” from the Chiffons’ “He’s So Fine.”
Maybe what the law has not considered, says Riehl, is that “since the beginning of time, the number of melodies is remarkably finite.” Rather than inventing out of whole cloth, artists choose melodies from an already extant “melodic dataset” to which everyone potentially has mental access. Now, everyone could potentially have legal access. By committing melodic data to a “tangible format,” Samantha Cole reports at Vice, “it’s considered copyrighted.” Or as Riehl explains:
Under copyright law, numbers are facts, and under copyright law, facts either have thin copyright, almost no copyright, or no copyright at all. So maybe if these numbers have existed since the beginning of time and we’re just plucking them out, maybe melodies are just math, which is just facts, which is not copyrightable.
Riehl and Rubin have released their billions of melodies under a Creative Commons Zero license, meaning they have “no rights reserved” and are similar to public domain. Available as open-source downloads on Github and the Internet Archive, along with the code for the algorithm the artists used to make them, the dataset might actually have sidestepped the problem of musical copyright infringement with technology, though whether the law, writes Cole, with its “complicated and often nonsensical” application, will agree is another issue entirely.
As we barrel toward the centennial celebration of women’s suffrage in the United States, it’s not enough to bone up on the platforms of female primary candidates (though that’s an excellent start).
A Twitter user and self-described Old Crone named Robyn recently urged her fellow Americans to take a good long gander at a list of nine freedoms women in the United States were not universally granted in 1971, the year Helen Reddy released the soon-to-be anthem, “I Am Woman,” above.
Even those of us who remember singing along as children may experience some shock that these facts check out on Snopes.
CREDIT CARDS: Prior to the Equal Credit Opportunity Act of 1974, married women couldn’t get credit cards without their husbands’ signatures. Single women, divorcees, and widows were often required to have a man cosign. The double standard also meant female applicants were frequently issued card limits up to 50% lower than that of males who earned identical wages.
PREGNANT WORKERS: The Pregnancy Discrimination Act of 1978 protected pregnant women from being fired because of their impending maternity. But it came with a major loophole that’s still in need of closing. The language of the 41-year-old law stipulates that the employers must accommodate pregnant workers only if concessions are being made for other employees who are “similar in their ability or inability to work.”
MILITARY COMBAT: In 2013, former Secretary of Defense Leon Panetta and former Chairman of the Joint Chiefs of Staff, General Martin Dempsey announced that the Pentagon was rescinding the direct combat exclusion rule that barred women from serving in artillery, armor, infantry and other such battle roles. At the time of the announcement, the military had already seen more than 130 female soldiers killed, and 800 wounded on the frontlines in Iraq and Afghanistan.
HEALTH INSURANCE: In 2010, the Patient Protection and Affordable Care Act decreed that any health insurance plan established after March of that year could not charge women higher premiums than men for identical benefits. This was bad news for women who got their health insurance through their jobs, and whose employers were grandfathered into discriminatory plans established prior to 2010. Of course, that’s all ancient history now.
CONTRACEPTIVES: In 1972, the Supreme Court made it legal for all citizens to possess birth control, irrespective of marital status, stating “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (It’s worth noting, however, that in 1972, states could still constitutionally prohibit and punish sex outside of marriage.)
There was a time—a strange time in pop culture history, I’ll grant—when legal dramas were everywhere in television, popular fiction, and film. Next to the barn-burning courtroom set pieces in A Few Good Men and A Time to Kill, for example, scenes of lawyers poring over case law with loosened ties, high heels kicked off, and martinis and scotches in hand were rendered with maximum dramatic tension, despite the fact that case law is a nigh unreadable jumble of jargon, citations, archaic diction and syntax, etc… anything but brimming with cinematic potential.
Do law students and legal scholars disagree with this assessment? It’s beside the point, many might say. The centuries-old web of case law—reinforcing, contradicting, overturning, creating patterns and structures—is the very stuff the law is made of.
It’s a referential tradition, and when most of the documents are in the hands of only a few people, only those people understand why the law works the way it does. The rest of us are left to wonder why the legal system is so Byzantine and incomprehensible. Real life rarely has the clarity of a satisfying courtroom drama.
Last year, The Harvard Crimson reported a seemingly revolutionary shift in that dynamic, when Harvard Law’s Caselaw Access Project “digitized more than 40 million pages of U.S. state, federal, and territorial case law documents from the Law School library,” dating back to 1658. The Crimson issued one caveat: the full database is accessible to the public, but “users are limited to five hundred full case texts per day.” Plan your intense, scotch-soaked all-nighters accordingly.
Is this altruism, civic duty, a move in the right direction of freeing publicly funded research for public use? Several Harvard Law faculty have said as much. “Case law is the product of public resources poured into our court system,” writes Professor I. Glenn Cohen. “It’s great that the public will now have better access to it.” It is indeed, Professor Christopher T. Bavitz says: “If we want to ensure that people have access to justice, that means that we have to ensure that they have access to cases. The text of cases is the law.”
The law is not a set of abstract principles, theories, or rules, in other words, but a series of historical examples, woven together into a social narrative. Machines can analyze data from The Caselaw Access Project far faster and more efficiently than any human, giving us broader views of legal history and precedent, and greatly expanding public understanding of the system. Harvard’s Library Innovation Lab has itself already created several apps for just this purpose.
There’s California Wordclouds, which shows the most-used words in California caselaw between 1852 and 2015, and Witchcraft in Caselaw, which does what it says, with an interactive map of all appearances of witchcraft in cases across the country. There’s “Fun Stuff” too, like a Caselaw Limerick Generator, a visual database that analyzes colors in case law, and “Gavelfury,” which analyzes “all instances of ‘!,’” giving us gems like “Do you remember if it was murder!” from Bowling v. State, 229 Ark. 876 (Dec. 22, 1958).
One new graphing tool, Historical Trends, announced in June, makes it easy for users to “visualize word usage in court opinions over time,” writes the Library Innovation Lab. (Examples include comparing the “frequency of ‘compensatory damages’ and ‘punitive damages’ in New York and California” and comparing “privacy” with “publicity.”) Anyone can build their own data visualization using their own search terms. (Learn how and get started here.) Case law may never be glamorous, exactly, or fun to read, but it may be far more interesting, and empowering, than we imagine.
Be aware that the Caselaw Access Project could still find ways to restrict or monetize access, for a short time, at least. “The project was funded partly through a partnership with Ravel, a legal analytics startup founded by two Stanford Law School students,” reports the Crimson. The company “earned ‘some commercial rights’ through March 2024 to charge for greater access to files.” The startup has issued no word on whether this will happen. In the meantime, public interest legal scholars may wish to do their own digging through this trove of caselaw to better understand the public’s right to information of all kinds.
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