In Praise of Creative Freedom 4: "He took a straight walk up to Washington city"

This humorous popular song by The Corrigan Brothers discusses President Barack Obama's Irish ancestry. (The genealogical facts are discussed in some detail here.) One important aspect of the song is the melody, which is clearly derived from (though not identical to) a traditional tune, Sweet Betsy from Pike (also known as Villikins and his Dinah). The traditional air can be heard here at the Digital Tradition.

The Corrigan Brothers are not the first to re-use this traditional tune. Many popular songs were sung to it in the 19th century. One such song, found in the 1896 book Lincoln's Campaign was a political song from 1860 about then President-elect Abraham Lincoln:

One Abr'am there was who lived out in the West,
Esteemed by his neighbors the wisest and best;
And you'll see, on a time, if you follow my ditty,
How he took a straight walk up to Washington city.

Others are available on-line at the Library of Congress's American Memory web site. The song titled "A new song for Sherman & Sheriden", begins

To SHERIDAN and SHERMAN, great merit is due,
They routed the Rebels each place they went to.
In the Shenandoah Valley they struck a home blow,
Where SHERIDAN whipped EARLY, who was a great foe.

Writing words "to the tune of" a popular air is always possible, even if the air is under copyright. But performing the air publicly is an exclusive right of the holder of copyright in the air. It is because the air Sweet Betsy from Pike is publici juris that The Corrigan Brothers were able not only to write words for it, but to perform it publicly as well, and post a recording of it to You-tube, all without being impeded by the frictional force of copyright clearance. Had Sweet Betsy from Pike been under copyright, The Corrigan Brothers might have been compelled to use a different tune, possibly with less success, since it is at partly due to its catchy melody that their song has become popular.

So here is another example of what Professor Lessig calls "Remix culture." The creative freedom allowed by the public domain has led to "progress of Science", in this case, the sciences of music and political humor.

Video: How copyright extension in sound recordings actually works

This video from the Open Rights Group does a quick survey of the issues involved in the European proposal to extend the term of exclusive rights in phonograms by 45 years.


This batch of articles in the Independent implies that the two just-released box sets of Buddy Holly recordings only became possible this year due to expiration of the exclusive rights in Europe over phonograms made in 1958.

Are online used-book sales killing the publishing industry?

In an article in the "Week in Review" section of the Sunday, 28 December 2008 New York Times, David Streitfeld examines the question of whether on-line resale of used books is hurting the publishing industry. Streitfeld seems certain that "traditional bookstores will continue to fade" in this new environment.

I prefer to think that publishers and traditional bookstores will continue to adapt to this new environment. Mr. Streitfeld seems only peripherally aware of an important part of this equation: if a copy of a recently-published book is available used on-line, then that copy was already bought from its publisher. If a book is in high demand, the used copies available on-line will disappear from the market quickly. Those who wish to have a copy immediately will purchase new copies. Mr. Streitfeld seems to think (I say "seems to" because he doesn't work this out explicitly) that a small number of copies will flow from reader to reader through on-line channels; that most people will be willing to wait their turn for one of these few circulating copies. I think that for many books there will be readers who don't want to wait, or who want a new copy. If the publisher can issue a moderate initial print run and then, if demand proves to be strong, bring new copies to market quickly, it may still have a window in which to make a profit before the market for used copies saturates. Surely this calculus is little different from the hardback/paperback computation that publishers already do? Libraries and some readers will want a more durable hardback copy. Some readers will be willing to borrow the book from the library while waiting six months to a year to buy the paperback edition. The publishing industry has been pleading incompetence since the late 17th century. Yet it adapted to the existence of libraries and paperbacks. It will adapt to the existence of an on-line market for used books.

"The natural place of creative expression is in the public domain"

The Canadian Broadcasting Corporation's "Who Owns Ideas" is available at

http://www.cbc.ca/ideas/features/who-owns-ideas/index.html

The MP3 is narrated by Paul Kennedy, and includes interviews with James Boyle, science-fiction author Eric Flint, (author of 1632, Mother of Demons, and other works,) Cory Doctorow, and Michael Geist. The article devotes considerable time to discussing U.S. copyright law. Why the interest in U.S. law from Canadians? A bill has been proposed in the Canadian Parilament, bill C-61, which would introduce provisions into Canadian law similar to some provisions of the DMCA. And Canada has so far resisted extending the duration of Canadian copyright from life+50 to life+70. But the content industry will surely want to change that.

"Everything has to fall into the public domain sometime"

An article by Los Angeles Times staff writer Joseph Menn

Disney's rights to young Mickey Mouse may be wrong

contains little fresh information, but it draws useful connecting lines along the history of the development of the theory that the copyright in the early versions of Mickey Mouse is possibly defective. It begins with Gregory S. Brown, a former Disney researcher who first discovered that the copyright notice on the 1928 cartoon Steamboat Willie might have been defective. It then moves to Dennis Karjala, who, Menn says, was an acquaintance of Brown's, and whose student, Lauren Vanpelt, wrote a paper titled "Mickey Mouse--A Truly Public Character," which developed the idea of flaws in early representations of the mouse. The theory was further developed by Georgetown Law student Douglas A. Hedenkamp, who in 2003 published a paper in the Virginia Sports and Entertainment Law Journal titled "Free Mickey Mouse: Copyright Notice, Derivative Works, and the Copyright Act of 1909." But when Hedenkamp wrote to Disney's lawyers asking for more information, the response from Disney General Counsel Louis Meisinger was "please be advised that slander of title remains actionable under California law for both compensatory and punitive damages."  Hedenkamp wasn't intimidated, and published the article.  

Another article, also by Menn,

Mickey's Many Roles

mentions, but does not name, the case of Eldred v. Ashcroft, which challenged the 1998 Copyright Term Extension Act (CTEA) on constitutional grounds. In the summer of 1998, when the CTEA seemed to be stalled in the Senate, Disney Chairman Michael Eisner was seen at Mississippi Senator Trent Lott's office.  Lott signed on as a co-sponsor of the CTEA a week later.  The Senate passed the bill in October of that year, and President Bill Clinton signed it, without any comment or announcement, on the last day before it would have died in a pocket veto.

Menn quotes Louis Meisinger, the former Disney lawyer, who is now a California judge, as stating that "everything has to fall into the public domain sometime."  The question is, however, would he have been able to say so if he still worked for Disney?   Would he have been capable even of thinking such a thought?  

Don't count on it.

Federal Circuit: Open-source licenses have teeth

In a very important ruling, the U.S. Court of Appeals for the Federal Circuit, finding that the terms of an Artistic License (a form of open source license) are "enforceably copyright conditions" has vacated a denial of a preliminary injunction and remanded the case for re-consideration consistent with its finding.  This means that, where there is an underlying copyright, the terms of an open-source license are governed by copyright law.  Exceeding the terms of such a license can constitute copyright infringement.

Jeffrey Lewis on unconscious musical borrowing

Songwriter Jeffrey Lewis has a fascinating 'blog post on the exstasy of influence:

Rip-Off Artist

Lewis writes:  

Perhaps we would like to think that the thoughts that go into creating a new song are purely impressions from “real life,” but a melody does not suggest itself as much from the impression of the 6 train ride you took this morning as it does from a melody from another song. The same for chord progressions, song concepts, lyric sounds and patterns, song structures and everything else. Folk music is supposed to be a shared continuum after all, and as Louie Armstrong said, “All music is folk music, I ain’t never heard no horse sing a song.”

Despite knowing all this, as a supposedly “creative” artist I am often shocked to discover that a song I’ve written has been a blatant unconscious rip-off of somebody else’s song, either in its structure, or lyrics, etc; if I’m lucky the other person’s song is not particularly popular or recognizable!

What Lewis describes is the compositional process. It was described in very similar terms by German baroque composer Johann Mattheson, in his book Das Vollkommene Capellmeister (1739) Part 2, Chapter 4. Mattheson wrote that a composer, through study and listening to good works, should build up an internal kit of progressions and musical phrases which could be drawn on to create melodies. For a discussion, and a translation of the passage from Mattheson, see George J. Buelow, "Mattheseon's Concept of 'Moduli' as a Clue to Handel's Compositional Process", Gottinger Handel-Beitrage III, Bareinter-Verlag, Kassel, 1989, pp. 272-278.

As Lewis notes, however, the process he describes can sometimes reach the status of unconscious copyright infringement.    Copyright, in other words, applies the legal analog of a frictional force against the natural working of the creative process.  Copyright is supposed to be an incentive to creativity, yet here we find it working against the creative process.

The solution is simple:  copyright should be moderate in duration and moderate in scope.  In particular, the duration of U.S. copyright as it now is should be reduced by 20 years or more.  And the margins of fair use should be broadened.