Being a writer, playwright, and occasional media producer, I of course have to deal with issues of copyright on a fairly regular basis.
Just to bring you up to speed on the most important basics of copyright issues:
1) when what you create is put into a "fixed" form, you own copyright in it immediately. In other words, talking to yourself as you walk down the street is not copyrighted, but if you’re running a little voice recorder of yourself, it is. Or, if you write it down afterwards, it is copyrighted… assuming of course it’s your own original work.
2) you do not have to register the "work" with the Library of Congress to have copyright. However, as I understand it, it’s a lot easier to sue people for infringement damages if you do.
3) ownership of copyright can only be assigned or transferred to another party if the creator signs a piece of paper saying so. This can take one of many forms. For example, your contract with your employer may include what is called a "work for hire" clause, which says that anything you create in the course of your employment is owned by your employer, not you. You can also have a work for hire contract with someone for a single creation.
4) duration of copyright: as of about 10 to 12 years ago, duration of copyright is life plus 90 years. And this last item is the topic of today’s blog.
A little bit of history (FYI, copyright law varies from country to country, and I am not a lawyer, so please don’t take any of this vague information too literally, I’m not really checking the numbers all that carefully): it used to be that copyright only existed in pieces that actually had the copyright symbol on them. So you didn’t own copyright in a letter/ essay that you wrote unless you actually actively claimed that by affixing the copyright symbol. Also, copyrights used to run from the date of creation of the work (not the death of the author/creator), for about 30 some years, and then if you wanted to extend that you had to file papers with the government to extend the length of the copyright. That too, has all changed.
The reason this has all changed is because one Sonny Bono (of Sonny and Cher) got elected to Congress and actively pushed the new copyright law, extending it to life of the creator plus 90 years.
There are some obvious benefits to this new law to certain entities. The most notable beneficiaries are movie studios and music producers, a.k.a. "media conglomerates." For example, the Disney company was once looking at some of its biggest long-time moneymakers, i.e., the original full-length feature cartoons created back in the 1930s, going into public domain. Not anymore. They can continue to sell them to their hearts' content until something like 2023 least. And the other obvious beneficiaries are the heirs of famous writers and composers and songwriters, assuming those writers, composers and songwriters did not work under a "work for hire agreement" for a large media conglomerate.
I am all for people making money off of intellectual property. I do it myself. However, for purposes of creating an ever more informed citizenry, here is the other side of all this that you’ll never hear:
Just a personal note, my intellectual properties that I’ve created over the years are tremendously near and dear to my heart. And it is my sincere hope and wish and desire that some of my plays will be performed after I am dead. I also hope that people will read my books long after I’m dead. But here’s the problem: With such long copyright periods, I have no idea who is going to be managing my intellectual properties 86 years after I’m dead. I mean, I can assign ownership to a brother or sister or cousin or niece or nephew, and have some idea of their character and I can at least some hope that they will do what I want done with these properties. But assuming I stay in good health, the most any of them will live past me is, what, maybe 50 years? So there’s another 40 years of some unborn total stranger being in charge of the things most dear to my heart.
While it will no doubt pain my unborn great grand nephew to hear it, there is a part of me that wishes that the copyright length didn’t go quite so long. To me, performances of my works and people reading my books are kind of like my idea of a great memorial. And if the person in charge of these properties is a lazy greedy irresponsible jerk (not that there any lazy greedy irresponsible jerks anywhere in my family tree), well, that might not be a good thing. (of course, I could just declare it all to be in public domain . . . I'll get back to you on that).
OK, that’s my problem. But here is how this might affect you someday: let’s suppose you have an aunt Sarah who died three years ago. Her will and estate has been probated, or worse, she didn’t even have a will, and her property /estate has been distributed, etc. etc. Well, lo and behold, a distant cousin rummaging through an attic came across that same aunt Sarah’s memoir of being a little girl in Paris during the Nazi occupation. You show this to a literary agent, and they get all excited and say, hey maybe we could get this published and maybe sell it to a movie studio as well.
Well guess what: you will have to contact every single potential heir of your aunt Sarah in order to make this deal go, and every single one of you will have to sign off on the deal. And if your family is anything like mine, you know this is not an easy task.
So here is the real problem that happens to so many "obscure works": if you cannot come to an agreement with your relatives about how to sell this memoir, no one will be able to touch it or do anything with it for almost 90 years. While it certainly makes sense for Bambi to remain under copyright, as there are people who can make money selling it, obscure works that no one is really buying also remain protected and untouchable. In vaults all over Southern California, there are many lousy, but historically significant, movies made by small fly-by-night producers and studios back in the 30s that cannot be shown because it’s too much of a headache to find all the potential copyright owners. So we cannot look at them, even for scholarly or historical purposes, for fear of lawsuits.
So, all this copyright protection means an awful lot of stuff that might survive in a marginal way, if using it were free, will simply get lost or trashed. 90 years is a long time to hold on to something that you can’t sell or do anything with. Film dissolves into dust, diaries get moldy or eaten by bugs, etc.
It’s also kind of interesting to note that almost all of the big Disney productions are based on public domain folktales, and "Fantasia" was based on mostly public domain music (note, if today's laws had been in place 100 years ago, the nutcracker ballet would have been under copyright until 1983). What would Disney have done if the story of "Snow White" had been under copyright when he wanted to make it? Not to mention Cinderella and Pinocchio. If that very well known collectively owned story had not been freely available for creative enhancement, if instead there were many legal and financial issues in getting the "rights," all the wealth created by that production might not have been made.
I don’t say this to rag on Disney. But it is important to understand in the whole concept of copyright, that yes, a creator should have exclusive right to exploit his or her work for a limited period of time. But in exchange for that governmental legal protection offered by society to the artist/creator, at some point that work becomes collectively owned by all of us. Not because we want to do "redistribution of wealth," but because once it goes in the public domain we can take it and build upon it and do something new, just as Disney once built something new on public domain folktales himself. That freedom of new creation creates far more wealth than just reselling something that was made 80-120 years ago.
As things stand right now, because of the 90 year copyright law, nothing, and I mean nothing, will go into the public domain for another 15 years.
Personally, I don't think it’s such a good idea to enrich the great great grandchildren of a few very talented people at the expense of everyone else. Of course, my great grandparents weren’t very talented. If they had been, I would probably have a very different point of view. But in the larger picture, by giving such huge longevity to copyright ownership (and there’s no reason to believe that it won't be extended again by congress 10 years from now), this risks encouraging the growth of media oligarchies. And if they are making plenty of money off the old stuff, they are going to be that much less inclined to create new stuff.
Just my opinion.
note another blog entry on this that offered a solution:
http://newmusicstrategies.com/2008/07/19/how-long-should-music-copyright-be/
© for the rest of my life plus 90 years, which with luck will be the year 2135, so nobody can touch this, reprint it, or do anything with it until then without specific legal permission from me or my many distant relatives whose address and phone are unknown . . . – Justin Locke
www.justinlocke.com
