Hoarding, Archiving, and the Public Domain: Universal Vault Edition

The New York Times Magazine just dropped a piece on the complete destruction of every master recording in Universal's West Coast vault. I haven't even finished reading it, because it's so terrible I have to digest it in installments and take breaks. Hundreds of thousands of irreplaceable master tapes were destroyed.

There were recordings from dozens of record companies that had been absorbed by Universal over the years, including several of the most important labels of all time. The vault housed tape masters for Decca, the pop, jazz and classical powerhouse; it housed master tapes for the storied blues label Chess; it housed masters for Impulse, the groundbreaking jazz label. The vault held masters for the MCA, ABC, A&M, Geffen and Interscope labels. And it held masters for a host of smaller subsidiary labels. Nearly all of these masters — in some cases, the complete discographies of entire record labels — were wiped out in the fire.

There are no more original recordings by Buddy Holly. They were all in the vault. The core of Chuck Berry's musical achievement burned. Decades of seminal work by Louis Armstrong, Duke Ellington, Billie Holliday ... that's just the beginning of the list. Read it for yourself, but maybe only a few paragraphs at a time. It's hard to take.

It's a major loss to the history of human culture. And the company had kept it hushed up. I applaud the Times on their investigative work.

Oh, by the way, there were unreleased session masters in there, too. Lots of them.

And here's the thing: those recordings were part of our shared heritage. On one level, that musical history belonged to all of us. But on a legal and financial level, they belonged to Universal Music Group, who kept them in part of a warehouse they rented from former sibling company Universal Studios, who let them incinerate.

But a lot of the music in those recordings only belonged to UMG in the 21st century because copyright laws had been repeatedly changed. Everything in that vault recorded before 1952 would have been public domain before the fire hit, based on the laws in place when the music was actually recorded.

Would that have changed anything? I don't know. We're talking about one-of-a-kind physical artifacts, which would have retained some of their value even after the music in them became public property. In fact, they might have had much more value, as unique assets that allowed UMG key advantages over their competitors. And maybe that would have changed the incentives.

The incentives of nearly-interminable copyrights, which are allegedly designed to protect our artistic heritage, often align to damage or destroy it.

Let's start with the fact that a lot of that music, including lots of unreleased music, was just sitting in that vault. Why hadn't UMG released it? Because they didn't have to. No one else could. The law gave them exclusive rights to those recordings, so they had no competitors. UMG could just keep all that music in the back, like the crate with the Lost Ark.

We think of copyright as the right to publish something, but it is more accurately described as the right to keep work from being published. Exclusive rights to publish means that you can keep other people from publishing it. That's what copyright is on a practical level: the right to get the court to stop someone else from selling something. But if you have exclusive rights, you also have the right NOT to release something. No one can make you sell your property, right?

What that leads to, when you have copyright terms lasting an unprecedented 95 years, is big music companies (and film companies, and book publishers, and, and, and) ending up owning a lot of old things that no longer have huge commercial appeal and that don't seem worth reissuing. But on the other hand, all those things collectively are the company's property, and there may be a way to make money on them someday, so there's no reason to let anyone else have them, ever. 95-year copyright means a lot of things get kept in the back room by private owners who don't really want them and don't want to let them go.

This is how priceless cultural artifacts end up in a hoard when they should be in an archive. God forbid massive corporations give, or even lend, their libraries of priceless master tapes to libraries or museums that would protect them. Because, you see, that would let other people have access to that art.

And the incentives change when your copyright protections run out. When you know that every other record company is about to release their own copies of Billie Holliday's Stay with Me, you have an incentive to reissue it yourself. And more, importantly, to remaster it with improved sound quality, exploiting those original master tapes. Maybe even to throw in some previously unreleased material. But if there's no competition, you don't get around to it.

"But wait, Doctor Cleveland," some of you will say, "doesn't the long term of copyright create an incentive for companies to protect all those old masters?" The answer, evidently, is no. Not enough. Our intellectual property regime didn't cause this fire. But it sure didn't help. And that's a damned shame.

cross-posted from Dagblog. All comments welcome there, not here

Your Public Domain Day Report, 2019: YES!!!

Today, at last, is Public Domain Day in the United States. For the first time in decades, some American copyrights were actually allowed to expire naturally, a mere thirty-nine years later than planned. So after years of blogging, every January first, about what wasn't entering public domain and what would have entered public domain under earlier laws, I can finally blog about what is entering public domain.

Various media outlets are covering this as a strange oddity, to the point that they're trying to explain what the public domain is to a puzzled and skeptical public. But the oddity is that we've kept so much in copyright for so long. What is happening today should not be news. It is a return to normal.

So today everything that was originally published in 1923 becomes free for anyone to republish, repurpose, or reuse. If that seems drastic to you, remember that all of those copyrights were originally set to expire in 1980. After the copyright law was revised in the late seventies, those works should still have become public domain in 1999. Ninety-five years of copyright protection is much more than enough.

Other places have already compiled lists of the big hits becoming publicly available: Robert Frost's Pulitzer-winning collection New Hampshire, with its smash hit single "Stopping by the Woods on a Snowy Evening," Harold Lloyd's classic short Safety, Last! (the one where he dangles off the clock), the Charleston, "Yes! We Have No Bananas," King Oliver's recording of "Dippermouth Blues" with his kid sidekick, Louis Armstrong. Hemingway's stories "Up in Michigan" and "My Old Man," become free for anyone to use today, and Brecht's In the Jungle of Cities, and Cather's A Lost Lady. Dorothy Sayers's detective Lord Peter Wimsey enters public domain as his first appearance does, but woe betide you if you try to publish a Wimsey mystery that draws on elements of his character from later, still-copyrighted appearances. 1923 was a busy year. We should have everything from 1962, or at least everything from 1943, but I'm happy to have the public-domain clock ticking again.

Perhaps more importantly, anyone is now free to rescue any obscure work from 1923 that they think deserves more attention. Want to digitize an old silent film before the last copy disintegrates? Want to republish a novel from 1923 that was totally ahead of its time? Go ahead. You don't have to track down the copyright holders to pay them. A lot of works that should have already been rescued in this way haven't, because after this long copyright holders are impossible to track down. One of the problems of making copyright terms so ungodly long is that it prevents salvage and restoration efforts, because the original copyright holders have lost track or lost interest.

We think of copyright as the right to publish, but what it really is, in practice, is the right to prevent publication. If you're making money of a novel that's in copyright, you can keep anyone else from publishing it. But copyright also means many things can't be published at all. And it frees the copyright holders, who are protected from competition, not to publish particular versions of the works they control. If Disney wanted to take the 1977 theatrical release of Star Wars out of circulation until 2073, they would have the legal right to do that.

So Vintage Books will be republishing Frost's New Hampshire this month, right on time, in an edition that recreates the woodcut illustrations from the original publication. (Those illustrations just entered public domain today, too.) No one's been able to buy a copy of New Hampshire as a stand-alone for decades. The original publisher, Henry Holt, could have brought one out any time they liked, pictures and all. But they didn't want to. They wanted to sell you Frost's complete poems, or a selection of favorites. Imagine the Beatles's rights-holders would sell you a box set, or a collection of greatest hits, but not Sergeant Pepper's or Abbey Road. If you wanted to see the actual book of poems that Frost put together, in the form he chose at that point in his career, you basically couldn't.

Starting now, readers will have a choice. You can still get the collected poems from Holt. You can get an individual collection of poems from Vintage. If Holt doesn't like that, they can reissue New Hampshire themselves. Maybe they'll have to commission some extra bells and whistles to make their book more attractive to buyers, like a new introduction or notes or copies of Frost's drafts. The choices will only increase. You can combine "Stopping by the Woods" with its original illustration as a poster if you want, and that's not necessarily a bad idea. In fact, putting Frost back into circulation in a competitive market economy might give the old boy some new life. It's probably good for him. In fact, it should have happened thirty years earlier.

Your Public Domain Update for 2017

Happy New Year all! As every year, I'm writing a blog post for Public Domain Day, listing all of the old books, movies, pieces of music, and works of art that are leaving copyright to join the public domain today. And, as every year in the United States, that list contains nothing at all. Public Domain Day is for people in other countries. Instead, we get Congress repeatedly extending the copyright terms to keep lobbyists for big media companies happy, so that virtually nothing has entered the public domain in the United States since January 1, 1978. So, as every year, I have to write a post about what would be entering public domain today.

Copyright in this country originally had a 28-year maximum, which gradually got doubled to 56 years (originally it was 14 years, renewable for a second 14, and then 28 renewable for 28 more). In the 1970s, Congress extended the term of copyright, freezing the public-domain clock so that nothing created after 1922 would become public for decades. That clock has never been restarted: just before the newer, longer copyrights could expire at the end of the 1990s, Congress extended them again with the Millennium Copyright Act, sometimes called the Sonny Bono act for one of its sponsors. The Constitution specifically forbids perpetual copyright; it only gives Congress the power to grant patents and copyrights for a "limited time." But Congress has gotten around this by simply granting one "limited" extension after another, so that Mickey Mouse (for example), stays in private ownership forever.

So, what are we missing?


If Not for the Millennium Copyright Act:

Citizen Kane would enter the public domain today. Let's just leave that one there for a minute: Citizen Kane. 

Also in the movies, we would get public rights to Dumbo, The Maltese Falcon, Dr. Jekyll and Mr. Hyde, Babes on Broadway, Charlie Chan in Rio, Abbot and Costello classics Buck Privates and Hold That Ghost!, The Devil and Daniel Webster, The Devil and Miss Jones (the Devil got a lot of work in 1941, and not just in Hollywood), Hellzapoppin', High Sierra, The Lady Eve, The Little Foxes, Major Barbara, Meet John Doe (which is feeling pretty topical right now), Moon Over Miami, Pimpernel Smith with Leslie Jones as the fearless Scarlet Pimpernel, The Road to Zanzibar with Hope and Crosby, Sergeant York, The Sea Wolf, The Shadow of the Thin Man, Sullivan's Travels, Hitchcock's original version of Spellbound, Tarzan's Secret Treasure, Tobacco Road, and The Wolf Man. Oh, and lest we forget, 1941's Oscar winner for Best Picture, How Green Was My Valley. (Better luck next time, Orson! Maybe your cinematography should have been more innovative!)

Wonder Woman should be leaving copyright today, free for anyone to write and draw. (So that someone, for example, could create a version of the world's mightiest woman who was not dressed like a streetwalker.) So would a host of Golden Age comic heroes, including Blackhawk, Plastic Man, Green Arrow, Aquaman, and lesser-known heroes such as Starman and Dr. Mid-Nite. (If you don't know who those are, well, my brother would never let me hear the end of it if I left them out.) Bad guy the Penguin would join Batman, Catwoman, and the Joker, who would already be in the public domain, so someone writing public-domain Batman would be able to add a Penguin storyline.

Beloved children's books Curious George and Make Way for Ducklings would become public domain today. So would Mother Courage and Her Children, Fitzgerald's The Last Tycoon, The Screwtape Letters, Evil Under the Sun, Between The Acts, My Theodosia, and What Makes Sammy Run? So would two personal favorites of mine: Borges's The Garden of Forking Paths and Nabokov's first novel in English, The Real Life of Sebastian Knight.

In music, we would hit another motherlode of American standards: "Blues in the Night," "Baby Mine," "Chattanooga Choo-choo" and "The Boogie-Woogie Bugle Boy," "All That Meat and No Potatoes," "God Bless the Child," "Deep in the Heart of Texas," "I Could Write a Book," "I Got It Bad (And That Ain't Good)," "Knock Me a Kiss," "Introduction to a Waltz," "Let's Get Away from It All," "So Near and Yet So Far," "Winter Weather," and, of course, the song that I believe should be our national anthem, "Take the 'A' Train." And for classical music fans, works by Bartok, Barber, Britten, Copland, Messiaen, Rachmaninoff and Schumann would all become free for public use.

But clearly, Congress has decided that works created in 1941 just haven't been under copyright long enough. Has anybody made any money off "Take the 'A' Train" yet? Or off Wonder Woman? We're just going to have to wait another twenty years for these intellectual properties to become public properties, or to have Congress pass another law keeping them private. The smart money is on the extension.

If not for the 1976 Copyright Act:

Harper Lee's To Kill a Mockingbird would enter public domain today under the laws that governed its initial publication. So would Updike's Run, Rabbit and Dr. Seuss's Green Eggs and Ham. Likewise The Violent Bear It Away by Flannery O'Connor, The Sot-Weed Factor by John Barth, Graham Greene's A Burnt-Out Case, Sylvia Plath's Colossus and Other Poems, and Walter M. Miller's science fiction classic A Canticle for Leibowitz. It would be a banner year for public-domain drama: Rhinoceros, A Man for All Seasons, Pinter's The Caretaker, Albee's The Sandbox, and the stage version of Orson Welles's Chimes at Midnight. 

But it would be an even bigger year for classic movies: Spartacus, Psycho, The Apartment, La Dolce Vita, BUtterfield 8 and The Magnificent Seven would all enter public domain. So would Inherit the Wind, The Alamo, the original Ocean's 11, Exodus, The Bad Sleep Well, Elmer Gantry, Please Don't Eat the Daisies, Hell Bent for Leather, the Vincent Price House of Usher and Roger Corman Little Shop of Horrors, The Swiss Family Robinson, Where the Boys Are, and The Unforgiven.

Plenty of Broadway musicals would enter public domain this year, too: Camelot, Oliver!, Bye-Bye Birdie, The Fantasticks, Flower Drum Song, and The Unsinkable Molly Brown. (That, Lin-Manuel, is what a Tony awards night with some suspense looks like.)

A huge number of pop hits would also become public domain today, exactly as they were expected to when they debuted. Crooner favorite "Ain't That a Kick in the Head" would leave copyright along with "Chain Gang," "Apache," "Calendar Girl," "Cathy's Clown," "I Gotta Know," "I'll Be There," "It's Now or Never," "Money (That's What I Want)," "Only the Lonely," "Spanish Harlem," "You're Sixteen," "Will You Love Me Tomorrow?," "When Will I Be Loved," "The Twist," and "Save the Last Dance for Me." Pretty good jukebox. Also the novelty songs "Alley-Oop," and "Itsy-Bitsy-Teeny-Weeny Yellow Polka-Dot Bikini," for anyone still interested in them. There would also be a good deal of interesting classical music, maybe most importantly Shostakovich's string quartets 7 and 8 and Messiaen's Chronochromie.

But all of those works will stay firmly in the hands of Sony, Disney, Time Warner, etc., until at least 2056. Someone needs another 39 years of royalties from Camelot, evidently, which would clearly be more productive than just letting people do Camelot, or even alter Camelot.

The good news is that the public domain clock, which has not ticked since January 1, 1979, is set to start ticking again two years from today, on January 1, 2019. On that day, if Congress does not intervene again, works published in 1923 will become free to the public. (Whose woods these are I think I know: They'll likely keep them private, though). Expect a bill to be before Congress before 2018 is over, and write to your representative and senators to tell them that sometimes, art has been in private hands long enough.

cross-posted from, and all comments welcome at, Dagblog

Your New Year's Public Domain Report for 2016

Happy New Year! It's Public Domain Day, the first day of the calendar year, on which people in other countries get new works of art and learning added to the public domain for everyone to use. And on the first day of the new year we in the United States get ...

Zilch. Nada. Niente. Nothing.

Again.

To review: American copyright law started out by specifying a 14-year term, renewable once to provide 28 years of exclusive protection. That was very much in line with the original 18th-century copyright laws in Britain. By 1976, that 28 years had crept up to 56. But that year Congress passed a new copyright act, extending terms to either fifty years after the author's death or (in the case of previously existing copyrights) 75 years from the work's creation. The law didn't go into effect until 1978, and copyrights that expired in 1978 weren't protected.  So on January 1, 1979, works published in 1922 entered the public domain. Works published in 1923 did not, and still haven't.
Even with that extension, those works from 1923 would have become public on January 1, 1999. But in 1998 Congress passed another extension, variously nicknamed the Millennium Copyright Act or the Sonny Bono Act (after one of its sponsors), which added another 20 years to copyright terms. Now previously-copyrighted works stayed in copyright for 95 years. As we get closer to 2019, we can expect intense lobbying by large media companies to pass yet another extension, defying the Constitution's mandate that intellectual property be protected for "for a limited time." (Article I, section 8, clause 8.)

So there's nothing under the tree this morning, same as last year. But let's review what would be public domain today if the laws had not been changed:


If not for the Milennium Copyright Act:

Bugs Bunny would leave copyright today. So would Tom and Jerry. Batman's best friend, worst enemy, and sexiest frenemy (Robin, the Joker, and Catwoman) would all join him in the public domain, as would a raft of Golden Age comics superheroes: Green Lantern, Hawkman, The Flash, The Spectre, and my kid brother's all-time favorite, Dr. Fate. Maybe more importantly, Will Eisner's classic masked detective, The Spirit, would enter public domain.

Warner Brothers (who have always controlled Bugs Bunny and now control DC Comics and its characters) would not be pleased. But Disney would be upset too: today is the day that Walt Disney's Pinocchio and Fantasia were scheduled to leave copyright after the first copyright extension. (Under the laws when those movies were made, they would have become public property in 1997.)

The public domain would also be enriched by classics like The Philadelphia Story, His Girl Friday, The Grapes of Wrath, and Chaplin's The Great Dictator (still timely after all these years). So would W. C. Fields's The Bank Dick and My Little Chickadee, the Marx Brothers' Go West!, The Mark of Zorro, Our Town, My Favorite Wife, Northwest Passage, Rebecca with Laurence Olivier, Angels over Broadway, The Invisible Man Returns, Young Tom Edison starring Mickey Rooney,

They Drive by Night, and The Thief of Baghdad.

Today would also be the day Eliot's The Waste Land and Hemingway's For Whom the Bell Tolls enters the public domain, as well as Grahame Greene's The Power and the Glory, Sholokov's Quiet Flows the Don, and Dr. Seuss's Horton Hatches an Egg, not to mention The Heart Is a Lonely Hunter, Darkness at Noon, Pal Joey, and Dylan Thomas's Portrait of the Artist as a Young Dog. Add to that books of poetry by Yeats, Auden, e e cummings, Pound, and Millay, classic detective novels by Agatha Christie and Raymond Chandler, and lit-crit landmark To the Finland Station. Not a bad list at all, and if they were allowed into the public domain they would be available in a wide range of editions, high-end and low-end.


In classical music, a trove of works by Barber, Britten, Copland, Hindemith, Khachaturian, Messiaen, Rachmaninoff, Stravinsky, Shostakovich, and Walton would become free for anyone to perform or record, just as the works of Beethoven and Mozart are. So would a motherlode of popular songs by Cole Porter, Duke Ellington, Rodgers and Hart, Johnny Mercer, Johnny Burke, Sammy Cahn, Jimmy Davis, and Artie Shaw. "You Are My Sunshine" should be public domain today, and "When You Wish Upon a Star." But just keep wishing on that star, because all of these works from 1940 are going to stay locked up until at least 2036, and longer if the law gets changed yet again.

If not for the 1976 Copyright Act:

The Sound of Music would be leaving copyright today, with all of its songs. So would Gypsy. That was the law, and the expectation, when those musicals were written. But the hills apparently cannot be alive with the sound of music until 2055.

We would also be getting a bumper crop of mid-century pop and rock and roll: "Breaking Up Is Hard to Do," "Dream Lover," "High Hopes," "Kansas City," "The Little Drummer Boy," "Love Potion Number 9," "Mr. Blue," "Oh! Carol!," "Poison Ivy," "See You in September,"  "Put Your Head on My Shoulder," "Shout," "Teen Angel," "There Goes My Baby," and of course the Ray Charles classic "What'd I Say?"

Raisin in the Sun and Sweet Bird of Youth would be entering the public domain today, along with Jean Genet's Les Negres and Anouilh's Becket. Robert Bloch's Psycho, Richard Condon's The Manchurian Candidate, and Ian Fleming's Goldfinger would be free for anyone to publish. So would Naked Lunch, The Tin Drum, Henderson the Rain King, Faulker's The Mansion, Heinlein's Starship Troopers, and The Magic Christian, The Sirens of Titan, The Haunting of Hill House, The Loneliness of the Long Distance Runner, Zazie in the Metro, and Goodbye, Columbus. Then we'd have short stories by Ray Bradbury, H. P. Lovecraft, and Julio Cortazar. Karl Popper's landmark work The Logic of Scientific Discovery, which should be distributed as widely as possible, would become open-source today. And so would Strunk and White's Elements of Style.

Ben-Hur would be in the public domain today. So would North by Northwest, Some Like It Hot, Sleeping Beauty, and The 400 Blows. But let's not forget Suddenly, Last Summer, The Defiant Ones, Pillow Talk, Anatomy of a Murder, Black Orpheus, Hiroshima Mon Amour, Gidget, The Hound of the Baskervilles with Cushing and Lee, The Imitation of Life, Look Back in Anger, The Mouse That Roared, Our Man in Havana, Rio Bravo, A Summer Place, The Sound and the Fury, and the lamentable but unforgettable Plan 9 from Outer Space. A batch of more than 20 classic Warner Brothers cartoons featuring Bugs, Daffy, and the gang would become public domain as well. And in a coincidence, today would be the day that Warner Brothers lost copyright of its rebooted Silver Age Green Lantern, whose Golden Age prototype

But the whole point of this deal is that it's good for Warner Brothers. And Disney. And Sony. On that level, it works great. It just isn't such a great deal for you, me, or the general public.

Anyway, all of those works will stay under the control of large mega-corporations until at least 2055. If 2055 seems long enough to wait, tell Congress not to extend copyright any further. The next extension will move the term of copyright beyond a century; its already been extended to 95 years. And you should expect the big companies to start lobbying hard for another extension over the next year or two. The public domain clock, stuck in place for Americans since 1979, is due to start moving forward again in 2019, and the Warner Brothers of the world will spend a lot of money to prevent that from happening.

cross-posted from, and all comments welcome at, Dagblog

Your New Year's Public Domain Report, 2015

I'm late with my annual public-domain update this year. But that's okay because yet again this year, nothing new entered the public domain this January 1. That's right, because of repeated extensions of the copyright laws in the US, no copyrights expired this year. Or last year. Or the year before.
Almost none have since January 1, 1979.

American copyright law started out by specifying a 14-year term, renewable once to provide 28 years of exclusive protection. That was very much in line with the original 18th-century copyright laws in Britain. By 1976, that 28 years had crept up to 56. But that year Congress passed a new copyright act, extending terms to either fifty years after the author's death or (in the case of previously existing copyrights) 75 years from the work's creation. The law didn't go into effect until 1978, and copyrights that expired in 1978 weren't protected.  So on January 1, 1979, works published in 1922 entered the public domain. Works published in 1923 did not, and still haven't.

Even with that extension, those works from 1923 would have become public on January 1, 1999. But in 1998 Congress passed another extension, variously nicknamed the Millennium Copyright Act or the Sonny Bono Act (after one of its sponsors), which added another 20 years to copyright terms. Now previously-copyrighted works stayed in copyright for 95 years. As we get closer to 2019, we can expect intense lobbying by large media companies to pass yet another extension, defying the Constitution's mandate that intellectual property be protected for "for a limited time." (Article I, section 8, clause 8.)

So there's nothing in under our public-domain tree this morning. But let's look at what would have become public domain if not for these laws.

If not for the Milennium Copyright Act:

The major headline this New Year's Day would have been Batman 's entry into the public domain. Batman would be on his own for a while, without famous supporting characters like Robin, the Catwoman, or the Joker, but they would be entering public domain in 2016 and 2017. For this year, it would just be Batman and Commissioner Gordon. Under the laws in force when he debuted of course, Batman would have become public domain in 1996. I'd like to say better late then never, but late is threatening to turn into never.

At the movies, Gone with the Wind, The Wizard of Oz, and Mr. Smith Goes to Washington would all become public domain this year. So would the rest of the many, many great films produced in 1939, including Stagecoach, Of Mice and Men, Goodbye, Mr Chips, Wuthering Heights, and Dark Victory. And let's not forget Beau Geste, Babes in Arms, At the Circus with the Marx Brothers, Gunga Din, Each Dawn I Die, The Hunchback of Notre Dame with Charles Laughton, Ninotchka, Intermezzo, of Mice and Men, The Women, Son of Frankenstein, old Dr. Cleveland favorite The Roaring Twenties with James Cagney, and of course Laurence Olivier in Wuthering Heights. Installments in the Thin Man, Andy Hardy, Charlie Chan, and Mr. Moto series would leave copyright, as would classic serials starring Zorro, Dick Tracy, Buck Rogers, and the Lone Rangehttps://www.blogger.com/blogger.g?blogID=35762378#editor/target=post;postID=470211736745711182r.

 In music, "God Bless America" should enter the public domain this week, as should another important American classic: Billie Holliday's "Strange Fruit." Also in popular music, "Back in the Saddle," "All of the Things You Are," "At the Woodchopper's Ball," "Brazil," "Go Fly a Kite," "Heaven Can Wait," "I Get Along Very Well Without You," "In the Mood," "The Lamp is Low," "Lydia the Tattooed Lady," "Over the Rainbow," "Moonlight Serenade," "South of the Border," "When You Wish Upon a Star," and "Tuxedo Junction" would all enter public domain. So would Cole Porter's "Darn That Dream," "Give Him the Oooh-La-La," "I've Got My Eyes on You," and "Well, Did You Evah?" -- not necessarily Porter's best year, but pretty good for the rest of us. In classical music, Shostakovich's 6th Symphony, Prokofiev's Alexander Nevsky and William Wallton's Violin Concerto would all be leaving copyright.


Finnegans Wake, The Snows of Kilimanjaro, and The Grapes of Wrath should be entering the public domain. So should Johnny Got His Gun, The Big Sleep, The Day of the Locust, Goodbye to Berlin, Tarzan the Magnificent, Pale Horse, Pale Rider, At Swim-Two-Birds and Saint-Exupery's Sun, Wind, and Stars. Mystery novels by Eric Ambler, Dorothy Sayers, Ellery Queen, Rex Stout, and three by Agatha Christie would become free from copyright. Brecht's Galileo, Hellman's Little Foxes, and Eliot's Family Reunion would become free for all to perform, as would The Man Who Came to Dinner, The Time of Your Life, Arsenic and Old Lace, and The Philadelphia Story. Poems by Frost, Auden, May Sarton, Edna St. Vincent Millay, Dylan Thomas, Archibald MacLeish, Muriel Rukeyser, and Louis Macneice would enter public domain, as would the last of Yeats's poems and Eliot's Old Possum's Book of Practical Cats, the children's book that became the musical Cats.

 According to Congress, no one has had a fair chance to make a profit off these works yet, and they will stay in copyright until at least 2035.

If not for the 1976 Copyright Act:


Chinua Achebe's classic Things Fall Apart would be entering public domain, as would Suddenly, Last Summer, Krapp's Last Tape, The Unnameable , The Dharma Bums, Breakfast at Tiffany's, Playback, Our Man in Havana, Pinter's The Birthday Party and of course Dr. No. So would poems by William Carlos Williams, e e cummings, Lawrence Ferlinghetti, Gregory Corso, Muriel Rukeyser, Theodore Roethke, John Berryman, John Betjeman, and Djuna Barnes.

Among the films newly available in public domain would be Vertigo, Gigi, Cat on a Hot Tin Roof, South Pacific, No Time for Sergeants, Aunti Mamie and The Vikings. Also entering public domain would be The Blob, The Attack of the 50-Foot Woman, Hercules, Kurosawa's The Hidden Fortress, The Fly, The Touch of Evil, The Revenge of Frankenstein, and Run Silent, Run Deep.


It would be a banner year for fans of early rock and roll, with new public-domain hits like "Johnny B. Goode," "Chantilly Lace," "16 Candles," "All I Have to Do Is Dream," "Donna," "Do You Want to Dance?," "Maybe Baby," "Yakety Yak," "Sweet Little Sixteen," "The Summertime Blues," and of course, "The Flying Purple People Eater." Folkies would get public-domain access to Pete Seeger's "If I Had a Hammer" and "Kumbayah." Also in pop music, "Volare" and the themes from Rawhide and Peter Gunn would enter public domain. So would classical pieces by Benjamin Britten, Dmitri Shostakovich, and John Cage.

However, all of those works will remain in private hands, usually meaning in the practical control of large corporations engaging in rent-seeking behavior, until 2054 at the earliest. Apparently, none of them count as classics yet. If you don't want to wait even longer than 2054, tell Congress next time copyright-extension time comes along.

cross-posted from Dagblog

The Big Keep (or Intellectual Property Blues: Hard-Boiled Edition)

cross-posted from Dagblog

        Raymond Chandler’s legendary private eye, Philip Marlowe, will be back in bookstores next year. Chandler’s estate has authorized a new Marlowe novel from John Banville, alias Benjamin Black. But the real news is not that Banville gets to write the book. It’s that no one else is allowed to write one.

    The copyright laws during Chandler’s lifetime decreed that his first novel, The Big Sleep, would enter the public domain by 1996. When it did the book’s rueful hero, Marlowe, would become public property as well, just like Sherlock Holmes, Huckleberry Finn, or Tarzan. But in 1978, nineteen years after Chandler died, copyright terms were extended to fifty years beyond the creator’s lifetime, keeping Marlowe corporate property until 2010. In 1999 another copyright extension lengthened terms to 75 years after the author’s death, so Marlowe will belong to someone else until at least 2035. If today’s laws had applied to Sherlock Holmes, he would not have become public domain in the United States until 2006. Tarzan would not be public domain until fourteen years from now.

    The new Philip Marlowe mystery takes advantage of the extra quarter-century during which Chandler’s heirs will enjoy artistic control and exclusive rights to profit. I don’t grudge Chandler’s grandchildren a few royalty payments, but he has no grandchildren. Raymond Chandler, like so many of his characters, died lonely. His estate went to his agent after a fight in probate court with Chandler’s secretary. Philip Marlowe is Chandler’s only child. Banville and his publisher will have to pay a cut of the new book’s profits to the Chandler estate, but that money won’t go to anyone Raymond Chandler ever met.

    In practice, the publisher is paying the estate to keep other writers from using the character. Banville will definitely write the best Philip Marlowe novel next year, because he’ll have no competition. Banville is a very reasonable choice for the commission, who will turn in painstakingly crafted work, and I wish him success. But we will never know if he was the best choice. He’s surely felt Chandler’s influence, but so has nearly every mystery writer, and his understanding of Chandler isn’t necessarily truer or more authentic than anyone else’s. A lesser writer than Banville might make a better Chandler.

    There’s no way to predict which writer would use Marlowe best. The results can only be judged once they’re on the page. And the Chandler estate is no more likely to pick the best literary successor than anyone else is. Fifty-three years on, his heirs have no exclusive insight into what made Chandler’s writing sing. They’ve never met him. Out among the many readers Chandler has influenced there may be a writer or writers whose intuitive feel for Chandler’s prose and Marlowe’s character could lead to a better novel than anyone has a right to expect. The best way to find such people, if they exist, is to let them pick themselves. If we ever read another great Philip Marlowe novel, it’s more likely to be a personal labor of love than a commission.

    Two of the reasons given for repeatedly lengthening copyright terms is that private ownership maximizes a work’s economic value and protects its artistic integrity. But it’s not clear that one authorized imitation of Chandler, shielded from competition, creates more value than would a marketplace where several “Chandlers” worked to outdo their competitors. Protection from the market does not always spur creativity. Nor would Sherlock Holmes have been better used if Conan Doyle’s estate had kept veto power into the 21st century.  But Chandler’s books have drifted into that period of limbo when an art work’s proprietors have lost any connection with its original creation but the work is still kept out of most living artists’ hands. Our current laws focus on prolonging that limbo, placing writers’ distant heirs ahead of their creative legacies.

    Fifty years after a writer’s death, the free market can make a better protector of their art than inheritance law. Anyone who reads detective novels knows what trouble inheritances can be. The best hope for a great Philip Marlowe novel is a lot of Philip Marlowe novels, by many hands, until trial, error, dedication, and talent can make him live again. We should let Marlowe back out on the streets. He was always too independent to work for a big firm. And Sherlock Holmes is waiting.

Lois Lane, My Love

cross-posted at Dagblog

Joanne Siegel has passed away. She was the model for the first sketches of Lois Lane and the wife of Superman's co-creator, Jerry Siegel. That gives her the best claim to being Lois Lane that any real person has ever had. In her later years, she was a fierce advocate for her husband's intellectual property claims. I've thought a lot about the Superman creators over the years, and part of me is tempted only to blog about intellectual property. But the truth is that Lois Lane has probably shaped the course of my adult life more than any other fictional character has, without me thinking about it.

All the years I spent reading comic books, before I was old enough to think critically or to act on the messages I was being given, I was picking up a bunch of basic lessons about how adults were supposed to live and what they were supposed to want. You were supposed to live in a big city. You were supposed to have a job. (Even if you could fly and squeeze diamonds out of coal, you were supposed to have a job. It wasn't about the money.) And when you fell in love, you were supposed to fall in love with a poised, confident, and whip-smart brunette, someone who was at least as good at her job as you were and at least as smart as you were: a woman like Lois Lane.

I have Lois and her creators to thank for an adulthood full of smart, interesting women. Women with careers and style, women who appreciate good prose and smart remarks, women who are nearly impossible to intimidate. Some only gave me a bout of spring heartsickness or an autumn of giddy smiles, some became my partners for as long as we could make our partnerships work, and one has redefined my notions of happiness, but they've all been bright and self-possessed and ambitious, and my life has been incalculably richer for it. I grew up presuming that if a straight man were able to do nearly anything he wanted and could pursue anyone he liked, he would choose a woman who was undeniably his equal. With more experience behind me, I still feel this is true. I would like to thank Clark Kent for the tip.

I'm not going to pretend that Superman comics were feminist documents, or that Superman is a good role model when it comes to romance. Everyone knows you shouldn't lie to your beloved, let alone systematically deceive her about who you are; you'd have to be from another planet to think otherwise. And it takes neurosis beyond the scope of mortal man to start a love triangle where you are your own rival, let alone to keep that phantom rivalry going for more than half a century. By the time I discovered Superman, Lois, and Clark's triangular mishegas, the comics had toned down most of the overt snickering at Lois for not figuring out that she was being lied to on a daily basis. In the 1950s, Superman would collude with the readers by literally winking to them out of the panel frame, sharing a joke on silly Lois who couldn't figure out the secret that every schoolboy with a spare dime already knew, and who was moreover a girl. But when I started reading, thirty-six years back, the wink had stopped being part of the monthly formula. And while Lois surely needed rescuing on steady schedule, even as a schoolboy I knew that this was about genre and not gender. Lois had to get herself in regular jams to keep the plot machinery from jamming, and I knew that. But the premise, after all, was that Superman was not like other men, so I naturally chalked up the rescuing to the super part, not the man part. Being rescued by that guy was nothing to be ashamed about; it could happen to anyone.

And it mattered, although I could not have articulated this, that Lois really did get herself in those jams, that it was her fearless sense of enterprise that got her in trouble. In fact, she's much more adventurous than Superman is; she takes more risks. Inevitably, one of her daring gambles would lead to a bad break and she would need to be bailed out by her bulletproof admirer. Lois didn't need rescuing twice a month because she was too stereotypically girly. She needed rescuing because she was too brave.

Lois Lane worked for me precisely because I encountered her in the middle of an extremely male fantasy, a fantasy where she was placed at the core. And in many ways she set a better example than characters like Wonder Woman, who represent a male fantasy about powerful women; you won't catch Lois wearing a pair of slave bracelets. An adolescent fantasy about the strongest woman in the world ends up with her dressed like some kind of harem girl. But with Superman, it's a fantasy of unchallengeable male power. And the lesson was that a strong, confident man wants a strong, confident woman. Made sense to me.

After all, it was always Lois who made the Superman concept work. She was Siegel and Shuster's great stroke of genius: Superman is absolutely invincible in adventure-plot terms, but love lays him low every time. The relationship with Lois, not the nonsense with gangsters and mad scientists and goofy-looking monsters, is the problem to be overcome. Lois, not Kryptonite, is his weak spot. What's great about this is that the adventure-story plot, where any suspense is artificial, becomes openly unsuspenseful, and the characters' relationship, which is potentially interesting, remains complicated and unresolved. Superman always saves the day (as you expected) and he never fixes his personal life (or didn't, until 58 years into the game). Of course, it was part of the formula that Clark and Lois never resolved their issues, but leaving them unresolved again and again focuses the narrative suspense toward what is real and human. Radioactive green rocks from outer space are not a real problem, not for us and not really, when it comes down to it, for Superman either. Love, on the other hand, will kick your ass all the way back to Krypton.

Lois was Superman's key difficulty from the very first episode: she's at the core of his character and the heart of the entire story concept. Before there was Kryptonite, there was Lois. Before there was Lex Luthor, there was Lois. When and if Superman is ever allowed to enter the public domain, Lois will go with him, because she was with him in his very first appearance. And he needs her. Without her, he has no story. Nothing can hurt him. Nothing can keep him from doing whatever he pleases. There's no suspense of any kind. (Put another way, Superman is an enormously boring character, but Clark Kent is fascinating.)

Jerry Siegel's central insight was that superhero comics, which he and Joe Shuster were inventing, are all about girl trouble. All of Superman's superhero descendants are about girl trouble, too, both the reader's and their own. (Bruce Wayne has been in his basement putting on a clinic on How Not to Date Successfully since May, 1939.) When you see a superhero whose relationship troubles aren't actually featured in the plot, the stench of Girl Trouble hangs over the whole enterprise. For Superman, the founder of the species, it's right out there in front. Did I mention I used to read a lot of these things?

Of course, if you buy a Superman comic today, you'll find Clark and Lois happily married and domesticated. That happened in 1996, about two years after Lois, Clark, and Clark's special pajamas would have gone into the public domain but for copyright-extension laws. And that provides an object lesson in what our current perpetual-copyright regime does to very old properties.

Under the terms of the bad deal that Siegel and Shuster made in the 1930s, DC Comics and later its corporate parents gained complete rights to the character for a measly $130. (Later, when Siegel and Shuster complained that DC was creating spin-off characters like Superboy without giving them a cut, they were fired from their jobs writing and drawing the character they'd created.) In 1938, that $130 bought DC exclusive rights for a maximum of 56 years, but since then Congress has extended the terms of copyright repeatedly. This is notionally for the benefit of creators, and more directly creators' heirs (extending the term from fifty years after the creator's death to seventy-five years after the creator's death can really only be about the heirs, and about the publishing company). To some extent this is true, and after one of the later extensions Joanne Siegel and the rest of Jerry's heirs did actually get half of the Superman copyright back. But of course, they get nowhere close to half of the revenue from that copyright. Creators and their families do get thrown the occasional bone, because they're the big media companies' official excuse for extending copyright again and again; you've got to at least hand out a few bucks to maintain the pretense. But the real profits of the extension go to companies like, say, Time Warner. It's nice that Siegel's family finally saw a piece of the money, but it's only a piece.

Meanwhile, Superman and Lois remain in the exclusive custody of DC comics, 73 years after they were invented. That means DC Comics gets to define the characters and shape their portrayal. Some fans of perpetual copyright actually cheer for this exclusivity on the grounds that the corporate owner looks after the characters and guards the core of the tradition. But in fact, DC Comics (a subsidiary of Time Warner) drastically reinvented Lois and Superman and removed the core of their storyline. Characters who were defined by not getting together are now blandly married. (Actual married life is not blander, simpler, or less interesting than single life is, but married life in Action Comics is just one long snore.) And with that half-smart re-thinking, the only legitimately interesting thing about Superman vanishes. (It's a bit like deciding that Romeo and Juliet's families should get along better. If one company still had a monopoly on Romeo and Juliet and decided that, it would just be a story about two good-looking kids and a bedroom window.)

This is what happens when fictional characters outlive their original creators but are kept from the free market. The official custodians are now too far from the moment of creation to have any intuitive sense of how and why the characters originally worked, but rival creators who might have a better or smarter grasp of the characters are barred from competing. Over time the writers and editors at DC forgot that Lois was supposed to be the humanizing weakness and started to wonder why their perfect superhuman leading man had this puzzling and "uncharacteristic" weakness. How could the Greatest Superhero of All Time be such a loser in his personal life? It made no sense! They had to make the character more consistent!

It wasn't enough that Clark Kent was immune to bullets, gravity, and abdominal fat. No, he had to have a perfect love life, too. And so he became perfectly boring. Now I have to root for Luthor.

If you're one of the fifty thousand people or so who reads a Superman comic this month (what remains from the old audience of millions), you'll find that the focus is on just how perfect Superman's conduct and values are, and on how much all of the minor DC Comics characters admire him. (What's interesting about the world-famous character is sacrificed in order to make him a more effective backstop to valuable DC properties like Beast Boy and Air Wave.) And there's now a heavy emphasis on Superman's "Midwestern values." You see, he's such a good person because he was raised in Kansas. And if being from the Great Plains States isn't an interesting character hook, I don't know what else could be.

The indomitable Lois Lane of my own childhood won't be infiltrating youngsters' boyhood fantasies, alas. Her publishers gave up on selling to kids long ago, or selling to anyone but a small core of hobbyists. (When I wanted to read a Superman comic, I got thirty-five cents and a posse of friends together and walked to the variety store. These days, Superman is sold in specialty shops, like kayaking gear.) And even so, she's no longer quite the same fearless adventurer who stealthily rearranged my expectations of what adulthood and adult relationships would be like. But the deed is done; I long ago graduated to real women, smart and confident professionals like the famous Miss Lane, and discovered that a few of them actually wanted to spend their time with the nerd in the glasses, and liked me even if I couldn't fly.

Thanks, Jerry. Thanks, Joe. And rest in peace, Joan.

Intellectual Property Blues, Beatles Edition

cross-posted at Dagblog

So, the Beatles are finally available on iTunes, goo goo goo joob. And the news has been greeted with a resounding yawn; many people claim that the move is much, much too late to be hip, and too late to be hip, in the music business, means too late to make a sale. [UPDATE: Since the Beatles sold 2 million songs and 450,000 albums n iTunes this week, I was obviously completely wrong about this.] Anyway, as every music columnist has already pointed out, Beatles fans all ripped all of their CDs to iPods years ago. (Disclaimer: Dr. Cleveland is a Beatles fan with an iPod. He did in fact rip all his Beatles CDs years ago.) But this John-Paul-George-and-Ringo-come-lately move isn't an isolated case: it's part of an ongoing intellectual-property management strategy by the Beatles' people, a strategy that tries to preserve their value by preserving scarcity and keeping prices high. And while that sounds like a reasonable strategy, it's probably going to hurt them in the long run.

For example, The Beatles have never allowed songs in movie soundtracks until this year. Their manager/loyalist/gatekeeper Neil Aspinall, who recently passed away, forbade it. You could pay for cover versions, but the actual tracks were the holy of holies and you couldn't have them. This is why you have never seen a movie set in the 1960s, unless it was Help! or A Hard Day's Night!, in which anyone was listening to the Beatles. Think about it. Think of a movie set between 1964 and, say, 1971 or 1973. What's on the soundtrack? If the characters put on a record or turn on their radio, what do they hear?

Hendrix. Janis. Puff the Magic Dragon. If the movie's budget is too low, Canned Heat. Now, all of that stuff was playing back then. It's "realistic," in the movie sense that those records were actually being played in the time period. And there's plenty of great music from the 1960s that can be licensed cheaply for films. (The Jefferson Airplane's people aren't holding out for top dollar.) So, naturally, film makers put the inexpensive songs on the sound track.

Here's the funny part: if you grew up with films about the 1960s, rather than personal memories of that decade, it probably seems to you as if those less expensive songs, the K-Tel Greatest Hits, were more popular than they were. And it will seem to you as if the Beatles never got played at all. In fact, the Beatles had a kind of carpet-bombing dominance of the airwaves and the record charts for years on end, a kind of dominance that we don't see anymore (and therefore don't intuitively find plausible). In the actual 1960s, the Beatles were ubiquitous. In the film version of the 1960s they're nowhere (man). Our mass media prompts us to imagine a 1960s in which "White Rabbit" was playing constantly and the "Strawberry Fields" never got air time. In fact, it's just the reverse. You hear "White Rabbit" so much now because it was only pretty successful back then.

(Ask a college kid who was more popular in 1968, Hendrix or the Beatles. They will take it as a serious question, and it isn't. Hendrix was a star, but the Beatles were crazy monster supernovas. Jimi's biggest single peaked at #20, which is roughly comparable to how the B-Side to "Paperback Writer" did. Even major figures like Dylan and the Stones, who are in the conversation with the Beatles, didn't have the same kind of success or market power.)

Now, the Apple Records "no soundtrack" policy makes obvious sense as a way to preserve the value of the Beatles brand, by enforcing scarcity. And the new policy will just be a kinder, gentler version of the old one, since the prices to license a Beatles tune for a film will still be sky-high. (One of the three songs licensed this year cost the studio $1.5 million dollars.) But in practice, this strategy has the unexpected effect of undermining younger listeners' sense of the Beatles' importance. The band seems less central, and less important, which means they eventually become less influential and important. This may be hard for some Baby Boomers to understand, because the Beatles' magnitude seems so inescapably obvious to them. But younger listeners weren't there for the Sixties, and the Beatles got left out of the movies.

(The Stones have a different strategy: they license songs for movie soundtracks, but not for soundtrack albums. The songs in the movies keep the band in the public mind, but if you want to buy the record you've got to buy The Stones. It's a smart business strategy; Mick went to the London School of Economics, after all.)

Anyway, here's some free promotion for the Fab Four, because they were pretty good on their off days: