Thursday, May 3, 2012

"A Curious Regulation"

There was a time – and it may still be the case – when, because it was too expensive to do so, you could not sing “Happy Birthday To You” on a television show. Somebody wrote the “Happy Birthday” song, and if you used it in your production, you were obligated to pay them – or, more accurately, whoever currently owned the rights to the song – a royalty.

(Lyrically, it is not really much of a song – only four lines long, three and a half lines of which are exactly the same, plus a “dear (insert Birthday Person’s name in “Line Three”), but somebody made it up, and the law requires compensation.)

To avoid this payment, which was not insubstantial – Wikipedia reports that “The documentary film The Corporation states that Warner/Chappell charges $10,000 for the song to appear in a film” – budget conscious TV shows would regularly use “For He’s A Jolly Good Fellow” for their birthday celebrations, ignoring the fact that “For He’s A Jolly Good Fellow” was last heard with any frequency emanating from the trenches during World War I.

Well done, Old Chap. You stormed the Hun’s position, and only lost an arm, a leg and an eye. That deserves a hearty, ‘For He’s A…’, wouldn’t you say, boys?

From a legal standpoint, “For He’s A Jolly Good Fellow” falls into the category known as “Public Domain.” The idea behind “Public Domain” is that you can compose a song, or any other work of art, and since that work is the product of your effort and ability, you should be compensated for having done so.

But not forever.

The law requires that, after a mandated period of time, the creator of the work – be it War and Peace or “Happy Birthday To You” – loses their ownership rights, and the work then falls into “Public Domain.”

“Public Domain” music, such as “For He’s A Jolly Good Fellow” can then be used free of charge. That’s why it’s become the “go-to” birthday accompaniment on TV shows. It doesn’t cost you a dime.
Oh, come now. Certainly some ‘Man Hours’ went into the composition of ‘For He’s A Jolly Good Fellow.’ It seems only fair that its composer be duly compensated.

Whyever not, for heaven’s sake!

“Public Domain.”

Hells Bells! Is that what we choked on mustard gas for? I suppose it must be!
It is doubtful that you watch as many cowboy movies as I do, and unlikely with equal scrupulosity. Whenever I tune in, I like to play this little game with myself. It’s called, “Guess The Saloon Song.”
A cowpoke ambles over to the local saloon. In the distance, we hear the Piano Man, tinklin’ out a tune. At first, you can barely make it out. Then, as the cowpoke sashays through the swinging doors, and is hit by the melody full blast,
It’s time to play…

”Guess the Saloon Song!”

Will it be “Camptown Races”? “Buffalo Gals, Won’t You Come Out Tonight”, or the softly mellifluous, “Beautiful Dreamer.”

It’s actually not that tough of a contest. Invariably, it is one of those three.
The reason?

“Public Domain.”

Stephen Foster wrote two of those songs – “Camptown Races” and “Beautiful Dreamer.” Every time one of them gets played – and you can throw in “Oh! Susanna” and “Jeanie, With The Light Brown Hair” – I imagine, somewhere, there’s a Stephen Foster descendant, receiving no payment for his ancestor’s compositions going,


Since 1924 (I looked it up), as the horses make their way towards the starting gate for the latest running of the Kentucky Derby, the University of Louisville Marching Band anoints the moment with the plantation-conjuring nostalgia of “My Old Kentucky Home.” And across the country, annoyed Stephen Foster scions are thinking,

“Shouldn’t we be getting something for that?”


“Well why, by all that’s holy in the Confederacy, not?”

“Public Domain.”

Grits and gravy! Those Northerners have done it to us again!
The rationale behind this principle is that, in law, there is no such thing as property – Read: ownership – of ideas. You make your money for your efforts. And then, when your copyright period runs out…
That’s it.

This concept has recognizable value in the pharmaceutical industry, where, a new pill is patented, its originators profit exclusively from their discovery for a period of time, and then the patent expires – this just happened with the cholesterol pill Lipitor – and the rights to the formula become “generic” – which is the “Public Domain” of the pill world.

At that point, for example Lipitor’s originator, Pfizer, loses its monopoly, and other companies are permitted to use the Lipitor recipe to produce their own pill. This creates competition, which drives down the price, the lower price resulting in the pill – and its benefits – being more readily available.
That one makes sense. But when it’s applied in the same manner to works of art, it doesn’t. What monopoly does the termination of a book’s copyright break up? Having ended Mark Twain’s stranglehold, can another writer now sit down and write the generic version of Huckleberry Finn?
It doesn’t make sense. The originator of a book or a play or a song receives money, and then, at some legislatively determined end-point, it stops Though, in the case of books, the publisher continues to profit.

And they didn’t write anything!

Once, I used to resent the requirement of having to pay to use “Happy Birthday To You.” Today, I think anyone who creates something should be compensated “in perpetuity”, which means forever.
Call it a “flip-flop” if you will.

But it’s a flop in the right direction.


Thomas said...

Did you know, the original creator of 'Happy Birthday To You' didn't get a cent.

The copyright length is sometimes called Steamboat Willy + 20. That is, since the creation of that animation, the copyright laws have been extended every time Steamboat Willy looks likely to come out of copyright. I would be unsurprised if the laws continued being extended, and Steamboat Willy will remain copyrighted in 200 years.

My opinion is that it should be until the creator's death, or 50 years, whichever is longer. This is economical - creators and publishers profit for a long time, but eventually it becomes released to be assimilated into our culture as a whole. Music, animation, and art can all become a part of our collective brain, and it allows creative freedom.

I believe that culture is hampered when nothing ever becomes open, and this affects us all.

Lyle said...

Earl: How were the rights to "Happy Birthday" acquired? If the copyright had run out . . . how was it extended? Is this a Congressional Act? Some legal procedure must be involved. Unclear. Can you clarify?

Dimension Skipper said...

I've long preferred the Three Stooges "Birthday Cake Song" anyway.

Earl Pomerantz said...

Point One: A genius writes "Huckleberry Finn." And after a specified period of time, neither he nor his descendants are permitted to benefit from his achievement. The publishers can still collect money. But the source of the work of genius cannot. Who does that situation benefit? Who does continuing paying royalties to the creator of the work of genius hurt?

Point Two: My daughter take a certain medicine that costs six hundred dollars a month. Why should any medicine cost so much? And why should people who can't afford that medicine be forever deprived of its benefits?

Paul said...

Lyle: the rights have been continually held since first publication in 1935 (there's some debate as to whether that company had rights to do so, but it's done now). As Thomas points out, every time the copyright period for the oldest-still-covered-works (e.g. Steamboat Willy, 1928; Happy Birthday, 1935) comes close, the US congress (and by extension, often other countries due to treaties, free trade agreements etc.) extends the period of copyright to stop it happening.

Earl: interesting argument. I'm very strongly pro-public domain expiry, because I think once things have been around long enough to become part of our cultural heritage they should be available to all. So to clarify: you'd be happy if performances of Mozart required licensing + permission? Of Shakespeare? Of Chaucer or Aristophanes or (reductio ad absurdum) the Bible? What if companies went bankrupt, stopped responding to requests, etc (this has happened with modern works; still no-one can perform those works because they never know when the next holding company is going to take over the rights from some long-dormant organisation and decide to retroactively sue them)?

I also find it hard to reconcile your two points. One's about patents and one about copyright, which are of course different, but - why shouldn't Pfizer or Merck get the rights to their genius in perpetuity? They put in the hard work. If patents extended in perpetuity, you can bet your sweet bippy that we'd still be paying Bayer $50 a packet for aspirin (which they discovered in the late 1890s).

(Side note: it doesn't really change your argument, but for accuracy it's worth pointing out that "The publishers can still collect money" means any publisher, not just the original one. Anyone can publish Shakespeare's plays now...)

Thomas said...

I would not want to be supported by money earned from my grandfather's bestseller. I believe once the creators have died (or if they died shortly, when 50 years have passed), the descendants no longer have much grounds for claiming money. It wasn't *their* work, nor was it the work of whatever modern company has is now profiting from it.

Anonymous said...

It's not just "the publisher" who can continue to profit after a work falls into the public domain, it's any publisher who wants to take the time to publish the work.

Of course, it may well be that the reason publishers can make money selling copies of "Huck Finn" is because it has been in the public domain for so long and is, therefore, easy and cheap for readers (and schools) to obtain.

Would "It's a Wonderful Life" have become such a widely seen movie had it not fallen into the public domain for a time? It certainly wouldn't have been constantly on television for all those years (since the very reason it became a widely-aired "holiday classic" was because it was in the public domain).

Heck, just untangling the rights over time would be potentially cost prohibitive for any future publisher if copyright were perpetual (you want to try and track down every descendent of Homer and get their permission to publish "The Odyssey"?)

Just looking at my family which had a lot of early deaths and people who didn't have that many kids compared to their contemporaries, if my paternal great, great, great grandfather published a novel in 1885 (when 'Huck Finn' was published), to get the rights today, you'd have to deal with nearly 30 living adult direct descendants, and that's not even counting ex-wives who might well try to horn in on the action if the money people start sniffing around).

And if said book came through my mother's side, the number of living adult direct descendants of my great, great, great grandfather is closer to 100.

And that's after 127 years. Each generation potentially expands exponentially, so before long, the number of people with a say/stake in any given work of art would begin to rival the number of shareholders of Disney. Just doing the accounting on the royalty checks would be more than 99% of books would ever earn.

And that doesn't even get into all the other ways that the rights to a work could get really complicated.

Nick Lassonde said...

Regarding the "generic" version of Huck Finn; it is very important to be able to create derivative works based on Huck Finn. How many Huckleberry Finn movies/series have been made? How many would have been made if they needed licensing/permission?

Look at most of the Disney classics: Snow White, Cinderella, Sleeping Beauty, Beauty and the Beast, the list goes on. All of those were Public Domain stories that Disney was able to make a wonderful adaptation because of the Public Domain, and we very well might not have had any of those stories were they still under copyright.

However, today, the Disney corporation is the only company allowed to tell stories based on the characters that Walt Disney created. While I disagree with it, I can understand having copyright for the creator's lifetime, but the current plan is way overboard. I am currently wearing this awesome t-shirt titled "The Star-Scream", based on Edvard Munch's Scream mixed with the Transformers character named "Starscream". According to current copyright laws, this shirt is likely illegal, as the artist does not have a license for Transformers characters, and almost certainly would not be granted one due to the artist's small business compared to the global Transformers brand. (And if you had perpetual copyright, then it would be doubly-illegal due to the Scream's copyright.)

Public domain expands available the works of art, allows for creating of better stories and art. Copyright is a necessity to ensure that artists get paid for their work, but there needs to be a balanced limit.


Anonymous said...

I think you might not have considered the full ramifications. You've basically just said that it should have been illegal to write the 1812 Overture (which is made up of a bunch of other, earlier music).

You've also left out that a lot of rights holders cannot be found, so-called orphaned works - the Wikipedia article mentions millions of works that you'd prevent anyone from using - the original copyright owner isn't using them, and no one else can, for fear of being sued when the owner reappears.

People also like the example of Sharespeare's heirs stopping West Side Story, although it's possible to imagine a copyright system that wouldn't let them. Shakespeare himself might very well have gotten into copyright trouble, given how derivative his works are.

Spider Robinson wrote about an aspect of why this is a bad idea in a slightly long sci-fi story. He doesn't get to the punchline until part 3, but it's worth reading if you have the patience.

Personally, I think that some people (lawyers and people who make money from writing and art) forget what copyright is all about. Using someone else's song doesn't take anything from them. It's not stealing - but we have decided to make it like stealing. That's because we want to encourage people to create. We've cut creators a deal - we'll take something that isn't stealing, and make it like it is, to give you an incentive to create. Let's say you're writing a script today - and I offer you 10 years of copyright or 20. Will you really only create a good script if you have 20 years of copyright and not 10? So why should the public give you their rights as a present, at no benefit to themselves? You don't give the script away for free either.

Aside from all this, I found the contrast with drug patents odd - someone has a unique, great idea. They can keep the rights forever - provided that the idea is not really needed by society. Only the really useful ideas get taken from the creator!