The film at Number 11 on the Internet Archive Top 100 that I finished a few months ago was My Darling Clementine (see trailer above). When it came time to embed the movie in this post, I discovered that it has been removed from the Archive, probably because it isn’t in the public domain. I can’t find a good substitute for so lofty a spot, so let me tell you a story.

When I first began compiling this list from the Archive’s Feature Films collection, I saw that the set included a treasure trove of great English-language movies with Portuguese subtitles. The trouble was that many of them, though hidden by their translated Portuguese titles, were clearly not in the public domain; any spotlight on them would probably get them noticed and removed. I disqualified them from consideration.

Movies can leave the public domain. I’ve still got a copy of And Then There Were None (1945) that was PD when I downloaded it from the Archive but was later withdrawn from the PD. I’m using this spot in the list to commemorate and suggest the many feature films that come and go. So you can still watch a full movie, I’ve embedded one of those Portuguese specials. Please excuse me if I don’t mention its title. Enjoy it, if that’s legal, while you can.

 Touch of Evil (1958) on IMDb

 The Private Life of Henry VIII (1933) on IMDb

Charles Laughton won an Oscar for his work in this sweeping historical drama of the infamous English monarch and his many queens. Elsa Lanchester, Laughton’s real-life wife, was especially strong as Anne of Cleves. The Private Life of Henry VIII was also nominated for best picture (they called it Outstanding Production back then) but lost to Cavalcade.

This was the first non-American film to win an Academy Award in any category, and the first to be nominated for best picture. Leonard Maltin gave this movie a perfect 4 stars, That plus strong support from IMDb users pushed it near the top of the Internet Archive Top 100.

 The Kennel Murder Case (1933) on IMDb

A year before beginning his most famous role as Nick Charles in The Thin Man movies, William Powell finished another film series in which he starred another sophisticated detective, Philo Vance. The Kennel Murder Case, the series’ fifth entry, also starred Mary Astor, who would later turn in a memorable performance opposite Humphrey Bogart in The Maltese Falcon.

This Internet Archive Top 100 movie was directed by Michael Curtiz, who won an Oscar in 1942 for Casablanca. The Kennel Murder Case is a prime example of a well-done 1930s murder mystery. Enjoy!

 Cyrano de Bergerac (1950) on IMDb

José Ferrer won a Tony Award in 1947 for his Broadway performance of Cyrano de Bergerac. Three years later, he won the Academy Award for Best Actor in Cyrano de Bergerac, a fairly faithful adaptation of that play. Ferrer was the first Hispanic actor to win an Oscar, and I wonder how many more Tony-Oscar winners there are of the same role.

The supporting players are nothing special, and the film was made in a hurry with limited sets, reflecting the accurate notion that a 1950 American audience would not be drawn to a title it couldn’t pronounce. Ferrer’s amazing work lifts this movie above all that to its high position in the Internet Archive Top 100.

Woody Guthrie photo with word balloons

Is “This Land Is Your Land” in the public domain? It’s complicated, and there’s a pending lawsuit on the subject—you can read more about it here.

Public Domain Day is January 1st of every year. If you live in Canada or New Zealand, January 1st 2018 would be the day when the works of René MagritteLangston HughesDorothy ParkerJean ToomerEdward Hopper, and Alice B. Toklas enter the public domain. So would the musical compositions of John ColtraneBilly StrayhornPaul WhitemanOtis Redding, and Woody Guthrie. Canadians can now add a wealth of books, poems, paintings, and musical works by these authors to online archives, without asking permission or violating the law. And in Europe, the works of Hugh Lofting (the Doctor DoLittle books), William Moulton Marston (creator of Wonder Woman!), and Emma Orczy (the Scarlet Pimpernel series) will emerge into the public domain, where anyone can use them in their own books or movies.

What is entering the public domain in the United States? Not a single published work. Once again, no published works are entering our public domain this year. (Happily, works published in 1923 will finally begin to enter our public domain next year.) The only works that are clearly in the US public domain now are those published before 1923.

It didn’t have to be this way. If we had the laws that were in effect until 1978, thousands of works from 1961 would be entering the public domain. They range from the books Catch-22Stranger in a Strange Land, and The Phantom Tollbooth to the films Breakfast at Tiffany’s and West Side Story, and much more. Have a look at some of the others. In fact, since copyright used to come in renewable terms of 28 years, and 85% of authors did not renew, 85% of the works from 1989 might be entering the public domain! Imagine what the great libraries of the world – or just internet hobbyists – could do: digitizing those holdings, making them available for education and research, for pleasure and for creative reuse.

For the works that are still commercially available, the shrinking public domain increases costs to citizens and limits creative reuse. But at least those works are available. Unfortunately, much of our cultural heritage, perhaps the majority of the culture of the last 80 years, consists of orphan works. These are works that have no identifiable or locatable copyright holder. Though no one is benefiting from the copyright, they are unavailable: it is presumptively illegal to copy, redistribute, or publicly perform them.

What can be done about all this? One obvious first step is legal reform that would give greater access to orphan worksThe US Copyright Office has continued its efforts to find solutions to the orphan works problem. Fundamentally, though, the key is public education about the delicate balance between intellectual property and the public domain.

You can learn more about the public domain by reading David Lange’s seminal 1981 article “Recognizing the Public Domain” and James Boyle’s book The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2008). Naturally, you can read the full text of The Public Domain online at no cost and you are free to copy and redistribute it for non-commercial purposes. You can also read In Ambiguous Battle: The Promise (and Pathos) of Public Domain Day, an article by Center Director Jennifer Jenkins revealing the promise and the limits of various attempts to reverse the erosion of the public domain.

The preceding post was condensed and adapted from articles by Duke Law School’s Center for the Study of the Public Domain, and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. You really should go read the full original!