At 11:05 PM 01-May-2001 jcdevildog wrote:

> The existence of a copyright doesn't keep anyone from
> playing, performing, or otherwise using the copyrighted
> material.

The existence of copyright in Gone with the Wind has kept The Wind done Gone from being published. This is a fact, and will remain a fact even if the injunction is later lifted on appeal. It has happened.

The existence of copyright in Finnegans Wake kept a songwriter from publishing a song employing 18 words from that book. (click here).

The existence of copyright in Beckett's Footfalls led to the supression of a production of the play in 1994. (click here).

The existence of copyright in some of Elvis Presley's work forced a ballet about Elvis to be re-written hurriedly into a so-so ballet about an Elvis impersonator. (click here).

The presumed existence of copyright in Martha Graham's works led to the cancellation of all of Graham's dances that had been planned for a dance workshop at Frostburg State University (click here).

John Nicoll, managing director of the Yale University Press, is quoted here as saying, "We've more or less given up publishing anything on Picasso or Matisse. The fees DACS asks for reproducing their work mean that no book could ever make a profit." (emphasis added.)

These are a few of the cases we know about. How many cases like them never get into the newspapers ? How many works are stillborn because the author knows in advance that copyright clearance will be out of reach ?

> Many songwriters make (or hope to make)
> their living from their music. I don't see anything
> wrong or selfish about this, do you? Very few songwriters
> amass millions to pass down to their heirs: the vast majority
> just struggle along, and their copyrights may well be all they
> have to leave.

Of course monopolists don't like giving up their monopolies. That is irrelevant. Copyrights are created to serve a public interest. The only valid question is whether they serve that interest.

> Shorter copyright periods will not make
> recordings, sheet music, etc. any cheaper to
> purchase: they'll just cut the songwriter and his/her
> heirs out of the loop.

This sweeping statement contradicts ordinary supply/demand analysis and known facts.

When Prokofyev's Peter and the Wolf was in the U.S. public domain, it cost $70 to buy the orchestral score. One could buy one and copy forever. Now that Peter and the Wolf has been restored to copyright by a GATT-related law known as the URAA (passed in 1995 or thereabouts), an orchestra must rent the score, rather than buy it, and pay performance royalties. A conservative estimate of the cost is $600 for two performances. This doesn't include the "grand rights" fees that must be paid if the performers wish to dramatize the work. (Letter of Radolph P. Luck dated March 31, 1998. An earlier version of this letter can be found here. This earlier version doesn't use the example of Peter and the Wolf, but still contains many examples of how copyright expiration lowers the price of orchestral sheet music).

The 1989-1990 Books in Print, Volume 5 (Titles G-O), page 4038, lists under "My Antonia" four stand-alone editions (i.e. not bound with any other title) of Willa Cather's novel My Ántonia, priced $5.95 to $21.95. This was before the expiration of the book's copyright. The 1998-1999 Books in Print (after copyright expired), Volume 7 (Titles L-Q) lists under the entry "My Antonia" twenty-two stand-alone editions, priced $2.00 to $108.00. After the expiration of the copyright bookbuyers had more choices and (if they wished) lower prices.

> Instead of attacking the author's copyright,
> why not support independent music? That would show
> that your opposition is genuinely to corporate control of
> the music world, as opposed to simply feeling you have
> the right to something (another person's original music)
> for nothing.

It is a common maximalist trick to accuse those who raise questions about the proper scope and duration of copyright of "attacking the author's copyright" or some such.

"Something for nothing" was an idea that was used by the entertainment industry to promote the CTEA. The NMPA claimed that the copyright term could be extended "without causing harm to the interest of any person or entity" (NMPA Comment, Sept 22, 1993, Copyright Office Docket # RM 93-8). A group called the "Coalition of Creators and Copyright Owners" stated that "we can obtain 20 years of protection in the EC at virtually no cost to ourselves." (The same source.) "Something for nothing" is what the Mitchell estate is getting. Margaret Mitchell hasn't written a single additional word since she died. The Mitchell estate, so far as I know, has never written anything at all. In exchange for nothing, they got 19 extra years of copyright in 1978, and then another 20 additional years in 1998. Anyone who feels that no one, under any circumstances whatsoever, should get "something for nothing", should have opposed the CTEA.

> You've got centuries of music already in
> the public domain available to you: why do you
> begrudge those of us who drive from town to town
> playing $50 bar gigs, or work in offices during the
> day and try to write and play open mics at night--and
> keep hoping we might someday actually see a royalty
> check with more than three digits--because we prefer
> not to give our work away?

It is a common maximalist trick to evade the question of how long copyright should last by simpy restating the case for some copyright as opposed to no copyright. The question is not whether we should have some copyright at all. The question is why 56 years, or 75 years, was not enough. And why, as in the case of Gone with the Wind, the term had to be extended even though, when those old works were published, 56 years was enough. One doesn't ordinarily owe the former owner of one's house additional payments, regardless of changed circumstances, once one has agreed on a reasonable price. Why should the public pay and pay and pay again for something it has already bought at the agreed price ?

The public domain in literary expression, like freedom of religion, freedom of speech, and freedom of the press, is the public's right. The public need not justify wanting to preserve its rights. It is up to those who wish the public to give up its rights to justify their wish.

T.