Public Domain Day 2023: How rights holders keep control of notable characters after they enter the public domain

This January 1, another selection of books, movies, and songs will come into the public domain. A curated list of these works that will fall out of copyright at the start of 2023 can be found on The Public Domain Review’s website.

Last year, the star of the show was Winne-the-Pooh. In our 2022 Public Domain Day post, we discussed how creators could now use this character without paying a fee to a rights holder because those rights had now expired. However, the story is a bit more complicated. Because only the first Winnie-the-Pooh book has come into the public domain, there are some limitations on what creators can do with this character. The world of Winnie-the-Pooh evolved after the first book was published. New characters, like Tigger, were introduced in subsequent books, and some significant changes were made in their design over time, including the addition of Pooh’s signature red shirt. These substantial changes to the characters are still considered under copyright, and creators who come too close to the Disney version may violate copyright law. Just because a character enters the public domain does not mean that everything about that character is fair game for creators to use.

“Sherlock Holmes” by is licensed under CC BY-NC 2.0.

For Public Domain Day 2023, this principle is perhaps best illustrated by the character of Sherlock Holmes. While most stories about this character are in the public domain and have been for many years, several of the last stories written by Arthur Conan Doyle about his famous detective are under copyright in the United States until January 1, 2023. This has led many creators to continue paying fees to the Doyle estate to avoid potential litigation. The estate has also sued creators for infringing on their rights, most recently Netflix over its Enola Holmes series. The estate claimed that elements of the new series, such as the warmer and more compassionate depiction of Sherlock Holmes, were only present in the later short stories that were still under copyright. While this lawsuit was ultimately settled out of court, it provides a great example of how nuanced copyright law can be.

However, it is also important to remember that the rules regarding public domain works are relatively straightforward compared to the concept of fair use that creators must be familiar with when they seek to use aspects of a work that is still under copyright. Students and faculty who create scholarship meant to be shared with the public, such as blog posts, infographics, and educational handouts, would benefit from an overview of copyright. Visit the Thomas Jefferson University Libraries Copyright Guide to ensure you have the analytical skills needed to know if an academic and/or popular work is consistent according to the law (Gaede & Thornhill, 2022, p. 187).

Email if you have questions or would like to discuss integrating these topics into your course.

Sources and further reading:

Jenkins, J. (2022). This Bear’s For You! (Or, Is It?). Center for the Study of Public Domain.

Perrotti, N. (2020, December 3). Sherlock Holmes and the Case of the Copyrightable Character. NYU Journal of Intellectual Property and Entertainment Law.

Xiao, C. (2022, February 22). How ‘Public’ is the Public Domain? Winnie-the-Pooh Illustrates Copyrights Limitations of Public Domain Works. IPWatchdog.

Gaede, F. & Thornhill. K. (2022). Teaching copyright through pop culture for public scholarship-based instruction. In. Johnson, M. E., Weeks, T.C., & Davis, J.P. Integrating popular culture into the academic library (pp. 181-280).  Roman & Littlefield. Via Thomas Jefferson University Libraries