Hiltzik: The downside of copyrights

In recent years, each New Year’s Day has brought a bumper crop of literary and artistic works into the public domain, that is, out of copyright after decades of protection.

This year, the harvest is particularly rich.

Among the written works first published in 1926 and featured in what copyright experts at Duke Law School called Public Domain Day 2022, is “Winnie-the-Pooh,” AA’s first exploration Milne of the Hundred Acre Wood.

Only a small percentage of the structures have an economically viable lifespan, even close to 75 years.

Congressional Research Service, 1998

Others include Ernest Hemingway’s novel “The Sun Also Rises”; books of poetry by Langston Hughes and Dorothy Parker; “Bambi” by Felix Salten and early novels by William Faulkner and Agatha Christie (“Soldier’s Pay” and “The Murder of Roger Ackroyd”).

There are films such as “Battling Butler” by Buster Keaton and “For the Love of Heaven” by Harold Lloyd and musical compositions like “Bye Bye Black Bird”, “Someone to Watch Over Me” by Gershwins and the Puccini’s opera “Turandot”, featuring the ever popular aria “Nessun Dorma”.

“There are a lot of ‘premieres’ this year,” says Jennifer Jenkins, director of Duke’s Center for the Study of the Public Domain, “including the first time that sound recordings have entered the public domain, with some 400,000 recordings. pre-1923 became free to sample, remix, or use in a soundtrack.

Among these pre-1923 sound recordings entering the Royalty Free Zone are “Swanee” sung by Al Jolson, recordings of Italian arias by Enrico Caruso and “Down Home Blues” sung by Ethel Waters.

In this case, however, this massive release isn’t really worth celebrating. Instead, it is an indicator of the sheer absurdity of US copyright law, which has long fallen under the thumb of the entertainment industry and the distant heirs of artists determined to preserve it. which is essentially a godsend.

Copyright terms have been systematically extended not for the benefit of the creators of the works, but for the benefit of giants such as Walt Disney Co. and the families of George Gershwin and Oscar Hammerstein II, the copyright expert Dennis Karjala in 2015. Indeed, the most recent revisions of the Copyright Act were retroactive, covering works whose creators had already died.

It should be borne in mind that copyright law was not originally designed to maintain the cash flow of future generations of a creator’s family. The idea has always been to preserve a creative incentive for creators, guaranteeing them that they can enjoy the fruits of their own labor for a fixed period.

As Duke’s Center observes, the first US copyright law in 1790 established a term of 14 years, with copyright owners still living at the end of that period being allowed to renew for an additional 14 years. .

Eventually, the term was extended to 28 years, plus a single renewal option for 28 more. (The vast majority of copyrights have never been renewed.) The Copyright Act of 1976 extended the term to 50 years from the date of the author’s death, and the 1998 Sonny Bono Act raised it to 70 years after the author’s death, and 95 years after publication for corporate works for hire.

The 1998 law applied not only to new works created after its effective date, but to existing works on the verge of losing their copyright protection. As a result, the 1998 law effectively froze the circulation of works in the public domain for 20 years. Under the old law, works created in 1926 would have lost their protection in 2002. Instead, they are simply entering the public domain now.

Expansions that lasted long after the death of the original creators obviously brought them no gain. But even those whose lives stretched far beyond the original publication have generally earned little in recent years.

“Only a small percentage of works have an economically viable lifespan, even approaching 75 years,” observed the Congressional Research Service in 1998, when the Sonny Bono law was under debate. “Even with the optimism and self-confidence required in these creative and risky fields… it’s hard to imagine anyone stepping up their efforts hoping their work will be commercially viable beyond 75 years. “

However, this does not apply to entertainment franchises owned by large corporations, as well as particularly enduring works such as Gershwin’s “Rhapsody in Blue” and lyrics from Hammerstein’s Broadway show. The Walt Disney Co. has been steadfastly pushing for ever longer copyright extensions to maintain control over properties like Mickey Mouse.

(While Milne’s first book Winnie-the-Pooh is now in the public domain, by the way, later works or derivative works such as cartoons are not: Disney owns these later rights to ‘author, thanks to a long legal battle he won in 2009, as well as to Winnie the Pooh as a trademark. But that did not give him the rights to the original book.)

“There is no way that a 95-year copyright term would be an incentive for anyone to create anything,” said Karjala, who as an Arizona State law professor , led opposition to the Copyright Term Extension Act, the 1998 federal law known as the Sonny Bono. Act after its main promoter in Congress.

The act was not intended to encourage artistic expression, Karjala said. He was urged by companies such as Disney, which would soon lose the rights to the first films starring Mickey Mouse: “They were all concerned about the royalty tap shutdown.”

When the character first appeared in the Disney cartoon “Steamboat Willie” in 1928, he was entitled to 56 years of protection, meaning that Mickey would have entered the public domain in 1984. Prior to that, Congress had promulgated the 1976 Copyright Act, with a retroactive revision of the term applicable to the “Steamboat Willie” (corporate work) fixed at 75 years from its creation, ie until 2003.

As that date loomed on the horizon, Congress granted business creators the most recent extension, pushing Mickey Mouse’s copyright expiration back to January 1, 2024.

Excessive copyright protection, however, imposes costs on other creators who may wish to exploit earlier works for new ones. “New fiction tells old stories, new documentaries reuse historical footage, and new music remixes and transforms old songs,” as 17 eminent economists wrote in a 2002 court friend brief supporting a challenge to the Bono Law before the Supreme Court. (The court upheld the law.)

A notable feature of all of this copyright term maneuver is that it has done little to straighten out the maze of copyright claims plaguing some of the most important and popular creative legacies. of our culture.

Emily Dickinson, for example: La Belle d’Amherst died in 1886 with the vast majority of her poems unpublished (in fact, unknown). That was 136 years ago, but most of her work is still subject to copyright claimed by Harvard University, which maintains that “all requests for quotation or reprint of material from Emily Dickinson must go through the Harvard University Press Clearance Department. “

Harvard acquired the rights through a rather convoluted sequence of events, but it jealously protects them; on at least one occasion, the university blocked publication of an anthology that would have rivaled a planned new edition of its own.

Whether Harvard’s claim is legally sound has long been the subject of scholarly debate, but no one has issued a formal challenge, perhaps out of fear of winning Harvard’s enmity if the university takes it away. Even the discussion of the copyright claim has been stifled by fear of Harvard, as Georgetown University researcher Seth Perlow wrote not too long ago: Discuss the matter publicly.

Claims established by Otto Frank, Anne Frank’s father, will retain copyright in his daughter’s diary until the 2040s in the United States, according to the Anne Frank Fund (founded by Otto Frank), although Anne Frank died in 1945, aged 15, in the Nazi concentration camp in Bergen-Belsen.

Family claims also govern the use of Martin Luther King’s speeches. As I reported in 2015, the King family strictly controlled the broadcast of King’s flagship speech “I Have a Dream” without royalty payment, even as the 50th anniversary of its August 28, 1963 delivery to the National Mall approached. in 2013.

The film “Selma,” which chronicled King’s role in the 1965 Voting Rights Act protests, was limited to showing King giving paraphrased versions of his speeches, according to its director, Ava DuVernay, in part because the rights of the film had been sold to Steven Spielberg and in part because acquiring the rights to the King family would have required giving them a voice in how King was portrayed onscreen.

Rights seekers have spent years trying to craft elaborate new exemptions from copyright expirations.

In 2014, even Sherlock Holmes narrowly escaped the restrictions of copyright law, when a federal judge ultimately rejected a claim by the Arthur Conan Doyle estate that the characters of Holmes and Dr. Watson themselves same – not just the works in which they appeared – were subject to copyright protection until the expiration of the copyright in the last stories in which they appeared, which will only happen in 2023.

A return to the basic principles on which copyright was originally based would indicate a reduction in the term of copyright, not persistent efforts to lengthen them. This is especially true in the digital age. As the Duke researchers argue, “the public domain is being impoverished as are its opportunities for creativity, innovation, democratic participation and the advancement of knowledge are transformed.”

It is unlikely that this trend can be stopped. The bulk of the money is behind securing their copyright protections for longer and longer periods, until they never expire at all. Will Mickey Mouse enter the public domain as planned on January 1, 2024? Maybe, but it’s probably not a good bet.

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