Michael Hiltzik of the Los Angeles Times explains why American copyright law benefits major corporations, not the creators of original works.
In 2022, he says, there will be a bumper crop of well-known titles that will enter the public domain, including Winnie the Pooh, Ernest Hemingway’s The Sun Also Rises, poetry collections by Dorothy Parker and Langston Hughes, and first novels by William Faulkner and Agatha Christie. A number of sound recordings, including ones by Al Jolson and Enrico Caruso will no longer be copyrighted.
Hiltzik writes:
As it happens, however, this massive release isn’t something entirely worth celebrating. Instead, it’s a pointer to the sheer absurdity of American copyright law, which long ago came under the thumb of the entertainment industry and distant heirs of artists determined to preserve what is essentially a windfall.
It’s proper to keep in mind that copyright law was not designed originally to keep cash flow running for future generations of a creator’s family. The idea was always to preserve an incentive for creators to create, by guaranteeing that they would be able to enjoy the fruits of their own labor for a set period.
The first U.S. copyright law, passed in 1790, established a limit of 14 years, and allowed the original creator, if still living, to renew the copyright for another 14 years.
Eventually, the term was extended to 28 years, plus a single renewal option of another 28. (The vast majority of copyrights were never renewed.) The 1976 Copyright Act extended the term to 50 years from the date of an author’s death, and the 1998 Sonny Bono Act increased it to 70 years after the death of the author, and to 95 years after publication for corporate works-for-hire.
The Walt Disney corporation and the families of George Gershwin and Oscar Hammerstein, among others, have lobbied effectively to keep their copyrights intact. Disney wants to protect its rights to Mickey Mouse as long as possible. Even though A.A. Milne’s book Winnie the Pooh will no longer be copyrighted, Disney owns and defends the animated forms of Winnie, as well as the trademark of ”Winnie the Pooh.” The Disney copyright on Mickey Mouse is scheduled to expire January 1, 1924, but Hiltzik bets that Disney will lobby for another extension of the law to protect its property.
A notable feature of all this maneuvering over copyright terms is that it hasn’t done much to straighten out the mazes of copyright claims afflicting some of our culture’s most important and popular creative legacies.
Emily Dickinson, for instance: The Belle of Amherst died in 1886 with the vast majority of her poems unpublished (indeed, unknown). That was 136 years ago, but most of her works are still subject to a copyright claimed by Harvard University, which maintains that “all applications to quote or reprint Emily Dickinson material should go through the Harvard University Press Permissions Department.”
Harvard zealously defends its control of Emily Dickenson’s works.
Otto Frank, the father of Anne Frank, holds the copyright to her diary until the 2040s, even though she died in 1945 at age 15 in a concentration camp.
The family of Dr. Martin Luther King holds the copyright to everything he wrote, including his speeches.
Hiltzik writes: As I reported in 2015, the King family stringently controlled broadcasting of King’s seminal “I Have a Dream” speech without royalty payments, even as the 50th anniversary of its Aug. 28, 1963 delivery on the National Mall approached in 2013.
When I compiled an antholgy of great Americans speeches, poems, and songs called The American Reader in 1990, I had to pay the family royalties to include not only the ”I Have a Dream” speech, but his important ”Letter from a Birmingham City Jail.” They are significant historical documents, and I wrongly assumed they were in the public domain.
Extending the copyright of original works for a century does not encourage creativity, especially when the creator of that work has died. The descendants should have a reasonable time to enjoy the fruitsof their relatives’ labors. But that too should be limited to a generation, not monetized through multiple generations. It is even harder to justify the century-long copyright eagerly sought and won by corporations.
Hiltzik concludes:
A return to the fundamental principles on which copyright law was originally based would point to a reduction in copyright terms, not the persistent efforts to lengthen them. That’s especially so in the digital age. As the Duke scholars [at Duke’s Center for the Study of the Public Domain], argue, “the public domain is being impoverished just as its opportunities for creativity, innovation, democratic participation, and knowledge advancement are transformed.”
Knowing the power of the corporate lobbyists, he is doubtful that the terms of copyright will be reducedn more likely, they will be extended yet again. You know, Mickey Mouse.
“The descendants should have a reasonable time to enjoy the fruitsof their relatives’ labors.”
Why? What did they do to contribute to those labors?
exactly
D77: When my father moved to our farm in 1926, it was riven with gullies eroded so deep that a mule team could not take a wagon through them. By the time I was old enough to farm, I had become the beneficiary of all his hard work and soil conservation techniques (the result of a government that sent soil specialists out to help farmers and his own stewardship of the land.
I agree with you. I did not deserve to be the one who got to raise 40 bushel soybeans on the land where he had carefully preserved the soil, even brought it back into production after the army used it during the war games pre WWII. But who better to curate the use of the land than a guy who appreciated its value?
I sort of agree. We should never reap where we did not sow. But I think it is better that the new people who sow should be those who most appreciate the land where they are sowing.
Ahh, another example of the idiocy of absolutist thinking. That statement makes so much sense if you’re six years old, a libertarian, or whatever one would call this abomination. But if you’ve had a little experience in life, you know it ain’t that simplistic.
Taken to its extreme, this “reasoning” would apply to parenting. I mean, what the hell have kids ever done to contribute to our labors except for the good old days of child labor? Economist Robert Heilbronner took this argument to the extreme when he asked, “What has posterity done for me?” to explain an important part of conservative thinking. It can be linked to the “pulling yourself up by your own bootstraps” myth. It also brings up ideas of what inheritance actually means and to whom it applies. For example, are the children of farmers entitled to the inheritance of the property of the father? Is it the same as the wealthy child of a corporate titan who is groomed to be the future leader at a young age, or even just live the life of irresponsible luxury? And what if you applied this false logic to the idea of taxation? Looks kind of silly doesn’t it.
Patent laws for new drugs offer a twenty year period during which the government cannot regulate price which basically gives drug companies a twenty year monopoly. This is done so the company can recoup its R&D investment which, by the way, the government often contributes to as well. The latest gimmick from the drug companies is to manipulate one inconsequential element of the drug’s formula in order to get another twenty year exclusive patent. Lobbyists manipulate our laws that tend to favor corporations.
TRUTH!!! Drug companies are pure evil and the FDA goes right along with it.
Another trick of the drug companies is to have the expiring patented drug become OTC and generic and then come out with a new, improved version that is patented and by prescription only. Moving a drug to OTC means that the generic manufacturers will not bother making it.
It’s why Bob Dylan, The Boss, Steve Nicks and other artists have sold their music catalogs recently.
U.S. copyright law is welfare for corporate fat cats.
Why not a law that says that copyright by individuals extends for the life of the author, end of story?
As a guy who likes to play old-time music, I have long been aware of the relationship between family songs that are in the public imagination left over from long ago and copyrighted songs that make people money. AP Carter of the 1930s hit country group, The Carter Family, would regularly travel about and “mine” the countryside for songs of regular people he would then make famous under his own copyright. Most of the people he got these songs from were just repeating songs they had been given by their family or their culture, and they thought nothing of singing them for a stranger when he came around.
Some years ago, I was visiting with the daughter of a man I knew when I lived over in the Blue Ridge. He was a fine banjo player, and I loved his family as well. His devoted daughter had become disabled and was cared for by then. We would go see her and talk music. That day I brought up in conversation that Carter would get his songs from the people he got to know and sort of take them. The lady helping suddenly interjected herself forcibly into the conversation: “yes he did!” She was obviously of the opinion that he had done this to her family.
It is difficult to know how to take this process. Aaron Copeland found a rare recording of Bonaparte’s retreat that he made a part of Appalachian Spring, and it eventually made its way into a Beef commercial. Would these songs have been even known about had they not been popularized? Would they have have fallen away? Or would the gift culture of family and community have kept them around to be discovered by folks like me who only wanted their preservation and loved the process of the gift culture?
People do not get well-designed drugs from their families. They do not get the design for their next vehicle from Uncle Fred. I understand that. But there is a place where there should be protection of a culture that values an idea for its source.
“The public domain is being impoverished” and, as Jon Michaels writes in his book, “the fusion of market and political power …has the effect of…marginalizing the populist contributions of an otherwise empowered and diverse civil society.”
Michaels’ book is, “Constitutional Coup: Privatization’s Threat to the American Republic.”
What is happening is the way Bill Gates and Charles Koch want it to be.
Since Citizens United we have devolved into a corporatocracy.
We were well on the way before SCOTUS’ disastrous decision.
Eisenhower was the last Republican politician who exercised power with the understanding that, “we can have wealth concentrated in the hands of a few or democracy but, we can not both.”
Folks might be interested in this paper about copyright and creativity in Italian opera. It is here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2505776
No one is dying because of intellectual property rights on the arts. Yet we have the starkest example of why a 17th century relic is reeking havoc on the world and it is staring us in the face. Only after 15 years of public funding did pharma show any interest in MRNA vaccines. Biden had been convinced early on that the real path forward on Covid was relaxing Property Rights to make these ‘Public Vaccines’ available in quantities great enough to squash the pandemic World Wide. Yet that effort was allowed to falter and die. Is there anything in evolutionary biology that made Omicron less lethal. Will the next variant out of the Global South evade the vaccine and be more lethal.
After 4 centuries you would think there is a better way to finance research and the arts. Certainly a better way than spending an extra 3-400 billion a year on patent protected drugs, much of that in public dollars, Medicare , Medicaid , the VA and Defense Department . You would think the free marketeers like Gates and the other Tech moguls would object to Government granted monopolies interfering in the “free market” (sarcasm noted).
I’ll add that the holes in copyright law have aged badly in the age of streaming.
They made an amendment recently for streaming music, but really the whole thing needs an overhaul, especially public domain and fair use.
I have to routinely educate teachers that because they signed a personal license for a streaming platform, any fair use provisions they may think they’re invoking are null and void.
Copyright as-is was developed for an age of physical media. The holes for digital use driven by the chains of licensing are making the classroom usage portion of copyright more useless every year.
This suggestion just in from my brother:
Biden should nominate Anita Hill to the Supreme Court just to ___ with Clarence Thomas.
Brilliant but she is too old. The new Justice should have a lot of years to outlast Amy Coney, Kavanaugh and Gorsuch.
Good point!
Off topic, but in case anyone cares, Flint’s schools are still closed indefinitely.
They really game the system.
I was recently contacted by four separate heavyweight music publishing houses regarding the titles of four of my songs.
I’d been under the impression that song titles were exempt from copyright, but, not sooo fast, buddy…:
Relatively new change had made it so that an artist can TRADEMARK the title of a song.
Not just any artist, mind you. Say someone’s searching for a certain song written by Gene Autry. They type out the name of the song, press Enter, and there it is! Along with the song written by yours truly…and any other artist who used the same title.
Can’t have free advertising like that for the commoners, now…can we?
I was informed that I’ll no longer be receiving streaming (or any) royalties for these four songs and that I’m free to hire legal representation to discuss the matter further.
Friend of mine is a lawyer. When I mentioned who we were talking about, he just laughed.