January 1st of each year is what is colloquially referred to as Public Domain Day. It is the day that works enter the public domain after their copyright terms have expired. At least in most countries outside the US. The US has gone decades without anything entering the public domain, but thankfully, 2018 will be the last year this is so. Unless Congress succumbs to the whims of the Motion Picture Industry and extends copyright again.
Every year, the Duke Law School publishes a report about the state of the public domain on January 1st and this year is no exception. This is what Duke had to say about the US.
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.2 (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. But what about works published after that date? Does that mean that they’re still under copyright? Well, maybe. Citizens of the United States have to live with a frustrating lack of clarity about what older works they can use. Did the author comply with registration or renewal requirements when those were mandatory?3 The records are fragmentary and confused, the copyright holders hard to find. Perhaps some post-1923 works by the authors above are in the public domain. Perhaps they are still copyrighted. We have to live in a fog of uncertainty, uncertainty that benefits no one. By contrast, in Canada and the EU, the public will know on January 1 that all works by these authors are in the public domain.
Not only does the US have a lack of public domain works this year, our copyright laws make it confusing to find out if anything does enter the public domain.
For video games, things are even worse. There has never been a time in the US or anywhere in the world where video games have even been under threat of entering the public domain. The introduction and rise of gaming has all taken place under these extended copyright terms. So any exploration of games that would enter the public domain is purely speculative. There are two eras that I like to explore each year, those games that would have had a 28 year copyright term had the 1978 law not been passed, and those works that would have had a 14 year term had the first US Copyright Law remained in effect. Each term limit would have had the possibility of an extension, but research shows that more than 80% of copyrights outside movies were never extended.
So what would have entered the public domain in 2018 had 28 year terms been in effect? Lots of great games from 1989. Here are a dozen of the most interesting titles.
- Batman: The Video Game
- Castlevania 3: Dracula’s Curse
- DuckTales: The Video Game
- Golden Axe
- Leisure Suit Larry III: Passionate Patti in Pursuit of the Pulsating Pectorals
- Michael Jackson’s Moonwalker
- Prince of Persia
- River City Ransom
- Super Mario Land
- Teenage Mutant Ninja Turtles
- Over 450 more games just from this list
What about 14 years ago? There are well over 700 game released in 2003.
- Arc the Lad: Twilight of the Spirits
- Banjo-Kazooie: Grunty’s Revenge
- Call of Duty
- Devil May Cry 2
- Final Fantasy Crystal Chronicles
- Harvest Moon: A Wonderful Life
- Jak 2
- Legend of Zelda: Wind Waker
- Megaman X7
- Onimusha Tactics
- Postal 2
- Ratchet and Clank: Going Commando
- Warcraft 3: The Frozen Throne
- Over 700 more games just from this list
Of course many of these games would have had their copyright terms extended as the franchises were and still are highly valuable to the copyright holders, but many would have been left to go into the public domain. Yet we are left in a world where none of these video games will enter the public domain until well after 2080s, after many of the people who grew up with those games are long dead. That would seem to defeat the purpose of copyright and the public domain.