Eric Felten weighs in on the NPG/Wikimedia spat

Eric Felten has an article in the Wall Street Journal about the dispute between the U.K.'s National Portrait Gallery and Wikimedia Commons over high-resolution images of portraits that were uploaded to the latter. Felten concludes

Copyright law exists for a purpose: to make creativity pay. Making accurate photographic copies of paintings is no doubt valuable and involves painstaking work. But it isn’t—and isn’t meant to be—creative. With all the digital assaults on the old copyright verities, the champions of intellectual property can’t afford to waste their energies trying to monopolize images that already properly belong to us all.

Felten seems to think that the Bridgeman case was correctly decided. Even if he does not, I think so. If faithful reproductions of public-domain artworks turn out to be under-produced as a result of the Bridgeman rule, Congress can create special, short-duration, narrow-in-scope sui-generis protection for such reproductions.

Artistic fossilization?

Carol Strickland has an article in the Christian Science Monitor about the Cunningham Dance Foundation, now beginnings its work of managing the posthumous licensing of Merce Cunningham's dances. The article, however, places the Foundation's work in the wider context of ongoing debate about copyright. Strickland's discussion is fairly well informed, though it contains this clunker:

Copyright, which extends for 70 years after an artist's death, exists to protect a creator's property rights and income.

Wrong. Copyright does not "exist to protect a creator's property rights and income". It exists to enlarge the public domain. But Strickland's main purpose here is to introduce the topic of debate with the immediately following sentence: "Many argue cultural content should be in the public domain sooner, available to future generations to build upon and freshen."

Indeed, it is the long posthumous period (now 70 years in the U.S.) that can be destructive of an artist's legacy. Simon Hattenstone noted in 1991 that

Britain's most notorious instance of artistic suppression surrounded the comic operas of Gilbert and Sullivan. Until the copyright [in Gilbert's librettos] lapsed in 1961, 50 years after Gilbert's death, the D'Oyly Carte Opera Company held a monopoly on all professional performances of the G&S repertoire. The result was a total mummification of the works: not a note of music could be sung differently...."
--Simon Hattenstone, "Keep open the routes to the past", The Times (London), November 5, 1991, Arts p. 14.

Hattenstone went on to note that The New Grove held that the expiration of copyright in Gilbert's work "proved Salutary, leading to...an all-round improvement in standards and a reawakening of imaginative interest." (Entry "Sullivan, Arthur", in The New Grove Dictionary of Music and Musicians Vol. 18, at p. 359. The re-written article on Sullivan in The New Grove Second Edition, however, does not contain this statement.)

Since copyright now lasts so long, a foundation like the Cunningham Dance Foundation will be active for several generations. The second generation might have a different outlook from the first. The third, different from the second. And these successive boards will not always be wise and appreciative of the creative process. In the end, the only way to make sure that Cunningham's dances do not fossilize as Gilbert and Sullivan's operettas are said to have done, is for the copyrights in them to expire.

Air on 4 chords

I saw an article about the copyright dispute between singer/songwriter Joe Satriani and the band Coldplay. Satriani, according to the reports, thinks that Coldplay's song "Viva la vida" copies from Satriani's song "If I could fly."

I decided to test my skill at creating a musical air on the 4-chord underlay that Coldplay use. These chords, transposed into the key of G, are C, D, G, E-minor. (Analysis on YouTube here). So I laid out four repetitions of these chord changes and wrote a melody, and, wouldn't you know it? Parts of my melody sound superficially like parts of Satriani's "If I could fly" and Coldplay's "Viva la vida".

Here is my "Air on 4 chords:"


Before I began writing I had heard parts of both songs a couple of times, but I could not have sung them back. So unconscious copying is not likely unless my memory for popular airs is better than I thought!

Maybe Coldplay copied from Satriani. But I think Satriani might need to consider the possibility that two independently-created airs on similar chord progressions can often have points of fortuitous resemblance to each other.

And again...

Recently Amazon sold copies of George Orwell's Animal Farm and Ninteen Eighty-Four to customers. When it discovered that the supplier it had bought the books from didn't have a license for U.S. distribution of these works (where they are still under copyright), Amazon deleted the two e-books from customers' accounts. When the customers re-synced their kindles, Amazon's software re-configured the Kindles to agree with the content of the accounts on Amazon's computers--which meant that the two ebooks were deleted from those customers' Kindles.

Much is being written about the incident. The point I want to stress is this: If Nineteen Eighty-Four was first published in the U.S. in 1949 (the year of its publication in the U.K.,) and if the term of U.S. copyright had stayed at 56 years as it was in 1949, then Nineteen Eighty-Four would have been promoted to the public domain on January 1st, 2006, and the unlicensed copies Amazon had acquired would have been legal for distribution in the U.S. Likewise Animal Farm, if the year of its U.S. publication was 1945, would have entered the U.S. public domain on January 1st, 2002. It too would then have needed no special license for U.S. distribution.

Pissed at Sotomayor

Of course Judge Sotomayor should be confirmed in the post to which President Obama has appointed her. But that doesn't mean our Senators shouldn't ask her some sharp questions first.

In 2001, the United States Court of Appeals for the Second Circuit ruled on an appeal from an award of $813,724.25 in attorney's fees to HyperLaw in the case of Hyperlaw v. West. The 2nd circuit vacated the district court's award of attorney's fees and remanded the case. The 3-judge panel reaching this decision consisted of judges, Straub, Sotomayor, and Spatt. The opinion, by Judge Straub, included the following statement as footnote 8:

The District Court noted that, in light of West's "violation" of 17 U.S.C. § 403, "HyperLaw's action vindicated the public interest in wide dissemination of federal judicial opinions." We differ with this statement. The public interest that copyright law is designed to promote is the wide availability of creative works. See Fogerty, 510 U.S. at 527 ("[C]opyright law ultimately serves the purpose of enriching the general public through access to creative works . . . ."); id. at 534 n.19 (goal in awarding fees is to be "faithful to the purposes of the Copyright Act"). Judicial opinions are decidedly not creative works.

But as I noted at the time in a post to the cni-copyright forum,

The Court of Appeals is wrong in this statement. The district court was right. The Court of Appeals fails to distinguish the purpose of copyright law from the purpose of the copyright monopoly (which is only one part of copyright law.) Copyright's purpose is to enlarge the public domain in useful writings. "Useful" here means that they can be productively "used" for learning, entertainment, further production of new works, or other purposes. The purpose of the copyright monopoly (a prominent feature of copyright law, but not its only feature) is to encourage authors to release original writings to the world so that they will enlarge the public domain. Hence the monopoly is in theory awarded only to those works that would not be released but for the benefits of the monopoly. Since judicial opinions must be written and released in any case, it makes no sense to burden the public by granting anyone a monpoly in them. Hence the copyright LAW explicitly withholds the copyright MONOPOLY from these works, and injects them into the public domain at once. But this witholding of the monopoly still works the law's purpose of enlarging the public domain. Hence the district court was right that Hyperlaw was defending the public's interest by defending the public domain. This is true regardless of whether the circumstances warrant an award of attorneys' fees or not. Hyperlaw defended the public domain by not allowing the ways of the law-publishing trade to expand by stealth the subject matter of copyright beyond its statutory limits.

The Hyperlaw decision defended the public domain in more than judicial opinions. My understanding of West's position is that it claimed that its editing cast a pall of creativity over its reports. If that is true, then if West had prevailed, slight editing would have been used by others as an excuse to monopolize other government documents and copyright-expired expression: This is precisely the outcome that the 2nd Circuit, in its Batlin decision, stated was unacceptable. Indeed it's hard to see how the Batlin decision and footnote 8 in the Hyperlaw attorneys'-fee reversal issued from the same court.

Judge Sotomayor voted to deny HyperLaw attorney's fees. Twice. She sided with the Big Money against the little guy. And the grounds for it, expressed in footnote 8 of the first opinion, were clearly erroneous. Though footnote 8 in the first opinion was written by Judge Straub, not by Judge Sotomayor, Judge Sotomayor put her name to it. I hope the Senators ask her why.

"We want to drink your blues"

James Boyle discusses the production process for the new Tales from the Public Domain comic book he is working on with Jennifer Jenkins and Kieth Aoki. This one will be called Theft: A History of Music, and it will present an overview of musical borrowing.

This is a topic I have written about on and off for a number of years. (Several posts, together with others', from back in 2000 here, and, much more recently, I discussed contrafacta here, and unconscious musical borrowing here. Nor was I idle in the years between, mentioning musical borrowing at least in passing in a number of essays and blog comments, for example here, here, here, and here.) In recent years, beginning around 2002 with a brief mention in Chris Sprigman's essay "The Mouse that Ate the Public Domain" and a brief discussion in Eric Shimanoff's "The Odd Couple: Postmodern Culture and Copyright Law" (Media Law & Policy, vol. 11, p. 12, Fall 2002, footnotes 62-79 and accompanying text), followed in 2004 by J. Michael Keyes's "Musical Musings: The Case for Rethinking Music Copyright Protection" (Michigan Telecommunications and Technology Law Review, vol. 10, p. 407, Spring 2004) and in 2006 (though drafts began circulating earlier) by Olufunmilayo Arewa's "From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context", (North Carolina Law Review, Vol. 84, p. 547, 2006 ) the subject has has attracted the attention of the official legal scholars as well. Arewa, in particular, has discussed the topic in several subsequent publications.

And now we will get a comic book as well!

"Free, from the various blossoms that he meets/to pick and cull, and carry home the sweets"

I've just finished reading James Boyle's book The Public Domain: Enclosing the Commons of the Mind, which I borrowed from a nearby library. In this book, Boyle discusses the recent evolution of copyright and patent law toward far greater scope (patents) and duration (copyrights) than in the past, why these developments are not beneficial, and how those who are of a mind to oppose these trends might do so. He begins with U.S. Patent #6,004,596 for a "sealed crustless sandwich", and ends with the reaction of the editorial pages of The New York Times and The Washington Post to the Supreme Court's decision in Eldred. v. Ashcroft. In chapter 2 of his book, Boyle introduces the Jefferson Warning, a set of five theses that he advises should be read like a Miranda warning to anyone attempting to influence intellectual property policy. These can be paraphrased as follows

(1) Copyrights and patents reach to intangibles, which are different from tangibles. Because of the nature of intangibles, the rights in them are state-granted monopolies, not natural rights.

(2) There is no entitlement to have one of these monopolies. They are granted merely as matters of public policy.

(3) These monopolies have, and ought to have, time limits, and these limits ought to be moderate, lasting no longer than necessary to achieve the policy objectives for which the monopolies are created.

(4) These monopolies impose costs on society as well as benefits, and it is possible in some cases for the costs to outweigh the benefits.

(5) The optimum limits of these monopolies' scope and duration require careful thought and analysis, during the course of which the four prior theses must be kept constantly in mind. In particular, "more" scope or duration is not always "better" for society.

I think this could just as well be called the Madison warning, or the Madison-Jefferson warning, since both Madison and Jefferson reflected, in their writings, on the importance of limits in state-granted monopolies.

Chapter 3 of Boyle's book is captioned by this delightful poem, which Boyle has been able to trace back (in a variant version) at least to 1821, though he thinks it may be older:

The law locks up the man or woman
who steals the goose from off the common
but leaves the greater villain loose
who steals the common from off the goose.

The law demands that we atone
when we take things we do not own
but leaves the lords and ladies fine
who take things that are yours and mine.

The poor and wretched don't escape
if they conspire the law to break;
this must be so but they endure
those who conspire to make the law.

The law locks up the man or woman
who steals the goose from off the common.
And geese will still a common lack
till they go and steal it back.

The poem seems to presuppose that "law" will be pronounced "lore."

The goose-poem reminds me of some other poems, by John Byrom (1692-1763), which, though less exalted in subject matter than the goose-poem above, are applicable to debates about copyright and patent. At the time these verses were written (1748), the long-dead poet John Milton (1608-1674) had been accused of copying from other poets, accusations later proved false. Byrom's answer, written during the time the accusations were still considered plausible, is a humorous "so what if he did?", to be spoken by a series of schoolboys at their school's commencement ceremony:

THE SECOND BOY:
When Milton's ghost into Elysium came
to mix with claimants for poetic fame,
some rose the celebrated bard to meet,
welcom'd and laid their laurels at his feet.

"Immortal Shades," said he, "if aught be due
to my attempts, 'tis owing all to you;"
Then took the laurels fresh'ning from his hand,
and crown'd the temples of the sacred band.

Others in crowds stood muttering behind--
"Who is the guest? He looks as he were blind."--
"Oh! this is Milton, to be sure, the man
who stole from others all his rhymeless plan;

from those conceited gentlemen, perchance,
who rush to hail him with such complaisance.
Ay, that's the reason of this fawning fuss.
I like him not--HE NEVER STOLE FROM US."

THE THIRD BOY:
Crime in a poet, sirs, to steal a thought?
No, that 'tis not. If it be good for ought,
'tis lawful theft. 'Tis laudable to boot.
'Tis want of genius if he does not do't:
The fool admires--the man of sense alone
Lights on a Happy Thought--and makes it all his own,

flies like a bee along the muse's field,
peeps in and tastes what ev'ry flow'r can yield,
free, from the various blossoms that he meets,
to pick and cull, and carry home the sweets;
while midst a thousand sweets the stingless drone,
sluggishly saunt'ring forth, makes none of them his own.

How old does the old gum tree need to be?

The music publisher Larrikin has sued Sony and EMI, claiming that a flute motif from the 1981 hit song "Land Down Under," by the band Men at Work, was copied from Marion Sinclair's 1934 children's song "Kookaburra sits in the old gum tree." Marion Sinclair died in 1988. Australian copyright lasts for 70 years after the death of the author for authors dying in or after 1955. If the copyright in Sinclair's song is computed in this way, it will expire on January 1st, 2059. Larrikin claims that it purchased this copyright from Larrikin's estate after her death. The Sony and BMI response is that, since Marion Sinclair wrote the song for a contest sponsored by the Girl Guides, it is the Girl Guides who are the owners of the copyright, and they have moved that the case be dismissed on this basis. The New South Wales Federal Court is expected to rule on this question soon.

Story in the Brisbane Times here.

The accused song can be heard here:



Note that, if the duration of Australian copyright had been 50 years from publication (the norm of the Universal Copyright Convention) "Kookaburra" would have entered the public domain on January 1st, 1985. Had it been a generous 56 years from publication (the U.S. term prior to 1978) "Kookaburra" would have entered the public domain on January 1st, 1991. The Men at Work could have copied from it freely (if that is what they did) without a need to license any quoted passage, and released their song without worry not long after they actually did. But because the duration of copyright has now been extended to absurd lengths, and its scope is taken to reach even to short musical motifs, we now have an example of a song deeply embedded in popular culture that cannot freely be quoted by other musicians until a hundred and twenty-five years after its first appearance. This is, quite frankly, too long.