Tuesday, August 14, 2007

The Three Faces of Copyright

With the recent decision in the UK to continue their current copyright system and the economic study released by Rufus Pollock, it's now possible to examine three aspects of copyright law side-by-side: the ideal, the practical, and the insane.

1. The Ideal - 14 Years
In his study, Pollock outlines through economic theory and a good deal of number-crunching that 14 years is the optimal length for a copyright. According to Pollock, this provides protection for the work during its peak earning capacity and releases it to the public domain about the time it stops bringing in significant income.

What does that mean?
In such a world as Pollock posits, everything copyrighted before 1983 would in public domain. That would include all of KC and Sunshine Band's output, as well as the Beatles, most of the Rolling Stones, Miles Davis, James Brown, and more.

What are the effects?
Popular works from the past that continue to sell, such as the Beatles catalog would no longer be income streams for their owners. A massive revival of many forgotten, underappreciated and cult films and bands would begin almost immediately, fueled by fan-driven rereleases.

2. The Practical - 50 years
British copyright protection for sound recordings lasts for 50 years, at which time the work passes into public domain. This was recently challenged when record labels realized that early recordings by Elvis, the Beatles, and the Rolling Stones would soon have their copyrights lapse. Fortunately, the government stood firm, and the current rules stand.

What does that mean?
Popular works from the past are still protected, but the clock's ticking. Personally, I believe that if you can't make money off the Beatles catalog in fifty years, then maybe you should be in another line of work. The half-century of protection ensures that artists who enjoy a revival in popularity can still profit from their back catalog (such as Bill Haley when "Happy Days" started a 50's craze).

The effects?
Basically, the music of three generations is protected. Glen Miller's recordings are in public domain, as well as "All Shook Up" and "Jailhouse Rock" by Elvis, "That'll be the Day" by the Crickets, and "Love Letters in the Sand" by Pat Boone. While the Elvis material (and a few others) may represent some loss to the labels, most of the material coming into public domain is only of interest to nostalgia buffs and older listeners -- a demographic the major labels ceased to serve some time ago. These niche markets with their limited sales continue to present opportunities for small specialty reissue labels.

3. The Insane - Life plus 70 years
American copyright protection has lengthened over the years, in part (some suspect) to ensure that Mickey Mouse never enters public domain. The current legislation, called the Sonny Bono Copyright Term Extension Act jumped the previous protection of life of the creator plus 50 years to life of the creator plus 70 years for works registered after 1978, and extended from 75 to 95 years those registered before (which fell under a different version of the copyright law). It is perhaps not a coincidence that Senator Bono was a recording artist and songwriter who benefited from this legislation (although ironically, his premature death in a skiing accident started his copyright protection clock ticking sooner than he had perhaps imagined).

What does that mean?
Basically, just about everything is out of reach. The current law protecting works registered after 1978 means that the earliest these recordings could enter public domain would be 2048. Works registered between 1924 and 1978 are protected for 95 years. So tunes popular in 1924, such as "Alabamy Bound" and "Wreck of the Old 97" are still under copyright -- as well as the recordings of Rudy Vallee, Glenn Miller, Big Momma Thornton and others.

What are the effects?
Because the law's basically an extension cobbled onto an extension of an older statute, things are a mess. Only works copyrighted before 1922 are in public domain. Nothing will enter public domain until 2019.
This is in stark contrast to the ideal and practical models above, where new works enter the public domain every year. And because everything's locked down under copyright, the only recordings that are reissued are the ones either by the major labels or those they authorize. Want some Bunny Berigan? Good luck with that. The legendary jazz trumpeter of the 1930's had some of his hits reissued on LP in the 1950's but as far as legal recordings go, that's it. All out of print, with virtually no chance of reissue -- at least in America.

Virtually all the recording artists from the 1930's and before are dead, and their music mostly out of print. The recording companies long ago made whatever significant money there was to be had from them, and in many cases recouped their investments many times over. Economies of scale make most of this recorded legacy impractical to reissue. So there it sits, locked away unheard, and generating no income -- but still protected!

And therein lies the insanity.

- Ralph


  1. Ralph, I'm curious. Who would come after you if you decided to use music from the 1930's, say, in a podcast, without permission? Who would you get permission from?

  2. That's the insane part. If the label's RCA, then you would have to contact Sony/BMG to get permission. If it's a label that no longer exists, then you have to track down what company purchased the label and ask the current owner.

    If its a company that's gone out of business, then you're out of luck. The legislation that would have ensured that "orphan" works would automatically revert to PD. As it is, they're still protected for copyright holder who no longer exists.

    Technically, you would be in copyright violation to use an orphaned work, but who would prosecute?

    Hence the insanity.