The Long Copyright Freeze

On Sept 19, 1962, Congress passed a two-sentence resolution that kept old copyrights from expiring "until December 31, 1965." It then renewed that stopgap eight more times, once on New Year's Eve 1974. In 1998 it added 20 years on top. The upshot: Jan 1, 2027 is only the ninth US Public Domain Day with a new crop of published works since 1998.

The story as it is told

Every January 1 brings Public Domain Day, and every year the same one-line explanation is given for why so little arrives: Mickey Mouse. Congress froze the public domain in 1998, the story goes, adding twenty years to every copyright so that the mouse would not go free.

That is the version in one line: Mickey Mouse, 1998.

What we can confirm

The 1998 Act is real and the 20-year pause it caused is real. The longer story starts 36 years earlier, with a string of short-term patches that ran until the 1976 Copyright Act took over. The Mickey angle has a real basis: the Walt Disney Company lobbied for the extension, the law is nicknamed the "Mickey Mouse Protection Act" by its critics, and it delayed the earliest Mickey cartoons from entering the public domain until 2024. Whether Mickey was the reason Congress acted is a separate claim, and the sources here do not test it.

Under the 1909 Copyright Act, a US work got 28 years, plus a second 28-year renewal term if someone filed. In 1962 Congress stopped the clock. Public Law 87-668, a joint resolution approved Sept 19, 1962, said that any renewal copyright "subsisting in any work on the date of approval of this resolution" that "would expire prior to December 31, 1965" was "hereby continued until December 31, 1965." It is printed in the Statutes at Large on the same page as a law against using slugs in vending machines and parking meters (76 Stat. 555).

The stopgap was then renewed again and again: Pub. L. 89-142 (Aug 28, 1965), 90-141 (Nov 16, 1967), 90-416 (July 23, 1968), 91-147 (Dec 16, 1969), 91-555 (Dec 17, 1970), 92-170 (Nov 24, 1971) and 92-566 (Oct 25, 1972), each per the Cornell LII notes to 17 U.S.C. §304. The ninth, Pub. L. 93-573, was approved Dec 31, 1974. Section 104 lists all eight earlier laws by number and continues every such term "until December 31, 1976." That law also made the 1971 sound-recording copyright permanent, raised piracy penalties and created the National Commission on New Technological Uses of Copyrighted Works (CONTU).

The 1976 Copyright Act took over. Its original §304(b) said any renewal copyright subsisting between Dec 31, 1976 and Dec 31, 1977 "is extended to endure for a term of seventy-five years from the date copyright was originally secured." For older works, the 56-year maximum became 75.

The Sonny Bono Copyright Term Extension Act (Pub. L. 105-298, S. 505) was signed Oct 27, 1998. It changed "seventy-five" to "95" and "fifty" to "70." Duke Law's Center for the Study of the Public Domain explains the effect: "Works from 1923 were set to go into the public domain in 1999, after a 75-year copyright term. But in 1998 Congress hit a two-decade pause button."

Eric Eldred and other plaintiffs, "whose products or services build on copyrighted works that have gone into the public domain," challenged the extension for existing works. The case was argued Oct 9, 2002, and decided Jan 15, 2003. Justice Ginsburg wrote for seven justices, holding that the CTEA's terms are "still limited, not perpetual." Justices Stevens and Breyer dissented. Breyer argued the "economic effect" made the term "virtually perpetual" and asked, "What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum?"

Duke's 2010 Public Domain Day page shows the years in between: "Sadly, we will have nothing to celebrate this January 1st. Not a single published work is entering the public domain this year... no publication will enter the public domain until 2019." Its 2019 page opened: "For the first time in over 20 years, on January 1, 2019, published works will enter the US public domain." Duke's archive menu lists a page for every year from 2010 to 2026.

The facts

• Pub. L. 87-668, H.J. Res. 627, approved Sept 19, 1962: renewal terms that "would expire prior to December 31, 1965" are "continued until December 31, 1965." (76 Stat. 555, govinfo scan opened)
• The same page, 76 Stat. 555, carries Pub. L. 87-667 (H.R. 8038), on "tokens, slugs, disks, devices" used in vending machines, turnstiles and parking meters. (scan opened)
• Pub. L. 93-573 (S. 3976) was approved Dec 31, 1974. §104 continues terms "until December 31, 1976." The law also created CONTU. (88 Stat. 1873, scan opened)
• Original 1976 Act §304(b): "seventy-five years from the date copyright was originally secured." (Cornell LII amendment notes)
• Pub. L. 105-298, Oct 27, 1998, 112 Stat. 2827, S. 505, short title "Sonny Bono Copyright Term Extension Act." It struck "seventy-five" and inserted "95," and struck "fifty" and inserted "70." (govinfo PDF opened)
• Eldred v. Ashcroft, No. 01-618: argued Oct 9, 2002, decided Jan 15, 2003. Ginsburg wrote for herself, Rehnquist, O'Connor, Scalia, Kennedy, Souter and Thomas; Stevens and Breyer dissented. (Cornell LII text)
• The majority's description of Breyer's dissent: the CTEA term is "worth 99.8% of the value of a perpetual copyright," and the 1976 Act's term is worth 99.4%, citing the Akerlof et al. amicus brief.
• Duke 2010: "no publication will enter the public domain until 2019." Duke 2019: "No published works have entered our public domain since 1998."

Related: What enters the public domain in 2027

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