Blame Sonny Bono. The former congressman from California's 44th district (and one-half of the singing duo Sonny & Cher) sponsored successful legislation in 1998 that extended the copyrights on books, plays, music, motion pictures and other artistic works for a period of 20 years. On January 1, this extension drew to a close, opening the floodgates to thousands of major works, which are now steadily pouring into the public domain.

For publishers and literary estates that previously owned the copyrighted movies, songs, poems and books of such luminaries as Charles Chaplin, F. Scott Fitzgerald, Noel Coward, Robert Frost and D.H. Lawrence, to name a few, the expiration of these works' protected status has profound financial consequences, resulting in the loss of millions of dollars in royalty payments.

Conversely, having these artistic works in the public domain is a boon for consumers and artists. The former benefit from more widely available and less expensive books, plays and music, and the latter now have the freedom to create new works adapted from many cinematic, musical and literary classics without having to secure related rights and pay a royalty.

The sudden availability of so many formerly-protected works presents different consequences for media companies who are engaged in publishing, radio, television, film and the Internet. While it may appear to a layperson that companies' liability for violating copyrights would be eliminated, the truth is more nuanced. Just because a particular work is now in the public domain does not always mean that it is available for free use by the public.

Lingering Media Liability

For instance, students might think that everything they see, read or listen to on the Internet is in the public domain, and consequently many of these protected works are heedlessly incorporated into reports, presentations and theses without attribution, much less permission, from the copyright holder. The bigger problem is when professional artists, musicians and writers do the same.

A decade ago, it was difficult to detect these infringements. A photograph republished from The New York Times without permission by a tiny newspaper in rural Alabama, for example, was typically undetected, given the paper's meager circulation. No longer is that the case. Technology tools using machine learning are able to rapidly mine vast quantities of photographs and other published data on the Web to unearth potential evidence of copyright infringement. This enhanced capability expands the liability risk for all media enterprises.

Complicating the picture is the thousands of works that are now entering the public domain. The Sonny Bono Copyright Term Extension Act lengthened the protected status of works published from 1923 to 1977 to 95 years after original publication from the prior limit of 75 years.

The year 1923 is important, as it marks the release of some of the earliest movies produced by The Walt Disney Company, which lobbied strongly for this extension in the mid-1990s. The first talking movie in which Mickey Mouse appeared, “Steamboat Willie,” was released in 1928. In 2023, the film will enter the public domain, at which point the images, voices and scripted dialogue of Mickey Mouse and Minnie Mouse can potentially appear in a book, TV show, song or movie, without having to secure rights from The Walt Disney Company or pay it a dime.

At least that is the expectation. Where this premise falters is the unlicensed use of Mickey Mouse from subsequent Disney films. For instance, an image of Mickey copied from the 1999 film, “Mickey's Once Upon a Christmas”—a motion picture that is not in the public domain, and with an updated drawing of Mickey—would still be protected.

Going Bananas 

To deconstruct this liability exposure further, let's look at the example of the evergreen novelty song, “Yes! We Have No Bananas,” a song which entered the public domain on January 1 of this year. The music and lyrics by Frank Silver and Irving Cohn struck a chord with the public and was a major hit for singer Billy Jones. Theoretically, any musical artist can now record the song or sample parts of it in a new composition, without the need to secure rights for it.

However, many other performers subsequently covered “Yes! We Have No Bananas,” further clouding the copyright issue. For instance, Al Jolson recorded an operatic version of the song in 1930 on film. In 1948, The Pied Pipers performed the song in the motion picture, “Luxury Liner.” A few verses of the song are sung in the 1996 film, “The English Patient.” Multiple other uses and versions can be found in “The Muppet Show,” “The Brady Bunch,” and “The Simpsons.” In all cases, rights were secured from the publisher and a royalty was paid.

Were a performer today to record “Yes! We Have No Bananas” in the way that Al Jolson sang it, the song may possibly still be protected, although it is not clear cut. Given this potential liability, media enterprises must exercise caution to ensure they do not infringe upon the copyrights of artists who later adapt an underlying work that is now in the public domain.

This is not an isolated challenge. The book, “The Wonderful Wizard of Oz,” written by L. Frank Baum in 1900, has long been in the public domain, but film studio MGM's 1939 movie version, “The Wizard of Oz” (now owned by Warner Brothers) is not. Elements of the movie that are not in the original book—such as the iconic ruby slippers that Judy Garland wore—remain protected.

If a character in a new film is based on Dorothy from the original book, the movie's producer would not have to secure rights to use the character in the film, since the book is in the public domain. However, if Dorothy is wearing ruby red sequined slippers in the movie, such adaptation could infringe upon Warner Brothers' copyright. If the producer fails to secure these rights from Warner Brothers and a clip with Dorothy in her red shoes is streamed on Netflix or YouTube, Warner Brothers could file a copyright infringement lawsuit against the producer and the distributors of the content.

How can media enterprises ensure they don't slip up? For one thing, they need to accept that just because a work suddenly enters the public domain does not mean that it is entirely free and clear of liability. Writers and film producers love sequels, but they still need to do their homework before potentially misappropriating properties that belong to other entities.

Second, they need to avoid the trap of cultural tropes. Dorothy's ruby slippers and songs like “Yes! We Have No Bananas” are stuck in the collective subconscious; therefore, it is easy to believe that they belong to the public to use however one wants. Regrettably, this is not the case.

Last, they should work carefully with legal counsel to research copyright records. Technology is a tool, but it does not replace the expertise of people doggedly going through all records to button up any loopholes. And since machine learning technology and even the best lawyers can make mistakes, they should purchase a media liability insurance policy to further protect themselves just in case.

Christopher Cooper is the vice president of media liability for QBE North America.