Copyright and the Promise and Perils of the Public Domain: A Case Study of The Great Gatsby’s Recent Entry into the Public Domain, and its Implications for the Future of Promoting and Protecting Creative Expression
Friday 9:00-11:00 am
Jeffrey J. Miles, Esq.
Four keywords: Copyright Law, Public Domain, The Great Gatsby, F. Scott Fitzgerald
Brief Synopsis: A primer on copyright law and the public domain; discussions of public domain versions of The Great Gatsby as illustrative case study; modes of Engagement with, and normative solutions to, copyright and public domain challenges. Requires submission of either: a 750 word discussion paper (suggested topics below); or a remixed 600 word portion of The Great Gatsby of the participant’s choosing.
What exactly does it mean when a work of literature (or any copyrighted work) enters the public domain? Copyright protects the original elements of a work of authorship. Beyond that, the boundaries are rather generous. Despite these expansive protections, copyrighted work enters the public domain at the end of the copyright term which is the life of the longest lived author of the work, plus an additional 70 years. Once a work enters the public domain, anyone can use the work in any manner they see fit without asking permission.
At this point, we will deepen this discussion by looking at a case study of one of the most esteemed and heavily protected works of literature, one year after its entry into the public domain. The Great Gatsby entered the public domain on January 1, 2021. Endless remixes have already proliferated from this wellspring. Many argue that The Great Gatsby (a carefully protected work of authorship for over 70 years) should never have entered such an uncontested liminal space. Is it culturally significant or normatively correct for one of the most reified of our nation’s cultural objects to suddenly lose the vast protections of copyright and swan dive into the seemingly endless pools of the public domain?
Pursuant to the Gatsby lense, we will discuss the rewards and perils for authorship under this regime, and discuss solutions for how the regime should look in the future. Gatsby sold less than 25,000 copies in the decades before Fitzgerald’s death. Yet, since the author’s death it has sold over 30 million copies. And now, the public domain Gatsby phase.
Beyond these discussions, at the core, this seminar offers a brief primer on copyright law and the public domain for authors, academics, students, and anyone interested in protection and promotion of authorship, through the lense of The Great Gatsby’s entry into the public domain. During the seminar, we will sample and engage with some illustrative examples and samplings from new works of authorship engaging with Gatsby in the public domain, present and engage with your own Gatsby public domain remixes, and analyze and discuss your position papers in group discussions.
Seminar participants are required to submit either: a 750 word essay exploring any of the following topics or your own related topic; or, participants may submit and present a 600 word remixed portion of The Great Gatsby of your own.
Create, share, and present your own remixed portion of The Great Gatsby. 600 words. Feel free to remix any 600 word sample from the work however you see fit. Be prepared to present the work and discuss it during the seminar.
Seminar members are encouraged to seek out and compare the original text to one of the various public domain versions of The Greaty Gatsby, such as Michael Farris Smith’s Nick, The Great Gatsby Undead, The Great Bansky, or any of the other remixed work of Gatsby in circulation now. Discuss how these works have changed or engaged with the original, for better or worse. (You don’t have to read all of Gatsby or whichever remix to discuss and explain some changes in the remix, and whether this new work improved in some way, or offered a meaningful or meaningless engagement, etc.). Do you think such new works violate the original work of authorship in some way?
Is there a place in the literature curriculum to teach and engage with “fan fiction” and/or remixed classics from the public domain? Or should literature pedagogy remain wed to presenting and analyzing classic works as they were intended by the author?
People disagree about the purpose of copyright. In the United States, most people think the purpose of copyright is to encourage authors to create new works. If copyright didn’t exist, people wouldn’t have to pay for works of authorship, and it would be hard for authors to make a profit. Copyright means authors can force people to pay, which encourages them to create more works. This is an economic theory of copyright, because it says that the purpose of copyright is to benefit the public, by encouraging authors to produce works the public wants. Do you agree with this model? Why or why not? Propose an alternative model for copyright protection, or discuss other reasons why you think copyright is an effective or ineffective tool from this economic theory perspective.
One promising theory to mitigate risk to masterpieces of literature comes from progressive ideas around new ideas of authorship protections. Blockchain, NFTs, and other modern modalities of creativity protection might be more effective than the old copyright regime in tracking and rewarding authors. How could preventative digital protections have impacted the Gatsby legacy, and/or other future works of authorship?
Should the term of copyright end at 70 years after the author’s life, extend indefinitely, or run for some other duration? Why or why not?
Discuss whether you believe Fitzgerald himself would have encouraged or welcomed remixed works of The Great Gatsby after its entry into the public domain? Are there examples of Fitzgerald’s text itself borrowing from other sources? Research or take an educated guess as to whether Fitzgerald’s original borrowings would have violated copyright or other intellectual property rules and discuss. Does that suggest there is an intrinsically postmodern sensibility intended in, or discovered by, the novel?
Please submit your registration for the seminar by email to Mr. Miles at email@example.com. Participation is on a first-come, first-serve basis and is capped at 12. Please email Mr. Miles with any questions. Discussion papers or Gatsby remixes will be due on February 1, 2022 and must be submitted by email to Mr. Miles at firstname.lastname@example.org. Please be prepared to read any original Gatsby remix submission aloud in the seminar and for the new work to be shared with, and discussed amongst, the seminar group. Position papers will also be shared among the seminar participants via email prior to the seminar, and discussed during the seminar.
Jeffrey J. Miles, Esquire, practices as a litigation associate at a San Francisco litigation boutique. Jeffrey is an expert in intellectual property as relates to the legal commodification of creative practice and intellectual property litigation. Jeffrey’s experiences as an attorney include such honors as serving as counsel for such clients as the Academy of Motion Picture Arts and Sciences and one of the world’s foremost private art foundations in the litigation over artist Robert Indiana’s estate. After law school, Jeffrey clerked for the Honorable Judge Vanessa D. Gilmore in the Southern District of Texas and served in the U.S. Department of Justice’s Honors Program. Northern California Super Lawyers Magazine named Jeffrey a Rising Star in 2021. Mr. Miles is a published art critic and recently published two works of fiction: Montague’s Coterie and Tennis with Phantoms. Mr. Miles actively engages in the visual arts as a painter and conceptual artist. He is the founder and chief curator for the liminal art project, The Second Bedroom Gallery.