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OPINION

After 95 years, writers finally get the green light to lift from ‘The Great Gatsby’

Laws that prevent artists from borrowing from classic works, even decades after the original author’s death, chill the broader culture.

At the stroke of midnight on Jan. 1, artists got the green light to use the characters created by F. Scott Fitzgerald in his 1925 novel “The Great Gatsby.”
At the stroke of midnight on Jan. 1, artists got the green light to use the characters created by F. Scott Fitzgerald in his 1925 novel “The Great Gatsby.”Heather Hopp-Bruce/alaver/Adobe/Globe staff

Did Daisy ever leave Tom? What happened to Nick after he retreated from New York? How did Jay Gatsby muscle into the Roaring Twenties underworld to make his illicit fortune? Was he — just maybe — a vampire?

At the stroke of midnight on Jan. 1, writers and other artists got the green light to imagine their own answers to those questions, and to use the characters created by F. Scott Fitzgerald in his 1925 novel “The Great Gatsby” without asking for anyone’s permission. On cue, an avalanche of Gatsby knockoffs, prequels, and yes, retellings with vampires hit the market, along with new editions of the original Jazz Age novel itself.

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But as welcome as the outpouring of pent-up creativity is, it’s also a reminder that the 95-year waiting period exacted a cost on American culture. Restrictive US copyright laws locked “The Great Gatsby” out of the public domain for so long that the best moment for reworkings of the iconic novel may have already come and gone. Fitzgerald’s story is still a beloved classic, of course, and some of its themes — social and class divisions, lost love — are timeless. But nearly a century after its publication, it’s also an artifact of a fading time that’s increasingly remote to the experiences of many readers, who may read it now as mostly a historical costume drama of cloche hats and dapper tuxedos.

Of course, we’ll never know what 20th century writers — or graphic novelists, or Broadway producers, or painters, or poets — might have done if they’d had the freedom to riff on Fitzgerald’s characters when the book seemed more resonant. (The Pulitzer Prize-winning composer and MIT professor John Harbison did write an authorized opera treatment of the work, commissioned by the Metropolitan Opera, which premiered in 1999.) But long copyrights stifle what had, in the past, been important parts of literary culture: retelling, reimagining, and satirizing other works.

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“There is a cost. A lot of work probably never quite made it to the market because of this antsiness around copyright,” said Meredith Rose, the senior policy counsel at Public Knowledge, a Washington nonprofit that works on Internet freedom issues. The chilling effect spans genres, Harbison notwithstanding. Eric Whitacre, a composer, set Robert Frost’s “Stopping By Woods on a Snowy Evening” to music only to be shut down by the poet’s estate.

Copyright, of course, exists for a good reason: to ensure that authors can profit from their works, thus giving them an incentive to create them in the first place. Copyrights are enshrined in the US Constitution itself, which guarantees “to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” But the Founders also specified those protections must last only a “limited” time, leaving it to Congress to define what that means.

What should be a public-policy balancing act between the rights of individual authors and that of the wider public has become badly tilted against the public. The earliest US copyright protections lasted 14 years; it can now take up to 120 years for copyright to lapse for some types of work. Copyrights that last 70 years after the death of the author (the current US standard) are unnecessary to provide authors the incentive to write books like “The Great Gatsby” — evidenced by the fact that Fitzgerald managed to write the book even though the law at the time gave him only 56 years of protection at most.

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Artists might be tempted to cheer ever-lengthening copyrights as a way to provide for their heirs. But that’s shortsighted, because the overwhelming majority of books, songs, and other works created today will have no commercial value decades from now. Very few creators realize any benefit from such long copyrights — but they’re all chilled by the limitations that copyright imposes on their creative options.

What exceptions exist are not practical. Although there is a narrow fair-use copyright exception for parodies — which is how Alice Randall, in 2001, was able to publish “The Wind Done Gone,” a retelling of Margaret Mitchell’s “Gone with the Wind” from the perspective of an enslaved character — it’s unpredictably applied and often requires finding a publisher willing to spend money on lawyers.

“Fair use is extremely valuable, but it’s not going to cover a lot of creative reuses,” said Jennifer Jenkins, a law professor at Duke who helped successfully defend “The Wind Done Gone” publisher when it was sued by Mitchell’s estate.

Once granted, there’s not much prospect for rolling back protections — especially not when deep-pocketed companies own some of the most valuable copyrights (ahem, Disney). But surges of creative output like the one just unleashed by the expiration of “The Great Gatsby” copyright are at least a reminder of the downside to such onerous restrictions. To borrow a phrase, great artists steal — and they shouldn’t have to wait 95 years to do it.

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Alan Wirzbicki is Globe deputy editor for editorials. He can be reached at alan.wirzbicki@globe.com.