Category: Copyright

Senator Josh Hawley (R – Missouri) has introduced legislation he calls the “Copyright Clause Restoration Act of 2022”. I assume this is political showboating intended to impress his constituents that he is willing to “punish” Disney. It would “restore” copyright from the automatic 95 years it is now back to the original requirement to register for a 28 year protection with an option to renew for an additional 28, so perhaps a total of 56. This would apply to all new copyrights, not just Disney or large corporations.

First off, corporations don’t have separate copyright rules. The rules split into two categories: those for independent authors (original authorship) and those for employees (works-for-hire). The “work-for-hire” rules apply whether it’s a single employee of a sole proprietiership or a massive corporation.  

Then the bill attempts to make it retroactive, but only for corporations over a certain size (a Market Capitalization over $150 billion). How this would shake out in practice is a bit hazy of course. While Disney is a $203 billion company, it has outstanding debts of $105 billion, so a Net Worth of something like $97 billion. So would the “rules” even apply to Disney? Microsoft on the other hand is a $2 trillion company. The legislation says the retroactive portion applys to any company over $150 billion that “engages in substantial activites” which can be described as Arts, Entertainment or Recreation. So would Microsoft’s gaming division be substantial enough to make it subject to the retroactive portion of the bill? Who knows?

The real problem with the “Restoration” term is that it violates the Berne Convention for the Protection of Literary and Artistic Works. This is an international agreement the US signed, along with 178 other countries, intended to “level” the playing field for the many different copyright laws throughout the world. It requires automatic copyright (no registration needed) and a minimum copyright duration of 50 years after the death of the author (not a term measured from the publication date), and that the signing countries recognize the copyrights of the other countries who signed. Countries are free to make their copyright protections last longer than the minimum, but the signing coutries are not required to enforce those copyrights past the Berne minimum.

Even ignoring the fact the proposed legislation violates our existing treaties and agreements, it seems pretty clear that having the US government “sieze” some of the property of every creator in the US is a poison pill intended to insure the legislation won’t pass. He can then blame everyone else for not doing what is “right”. 

But we know better.

There has been quite a bit written recently about the case of a British photographer, David Slater, where a monkey took his camera and took a “selfie”. Wikimedia posted the photo, the photographer asked them to take it down because it is a copyrighted work, Wikimedia refused on the grounds that the monkey actually took the photo, so its not David Slater’s to copyright, and the monkey has no copy “rights”‘.

I won’t post the photo here, because I think the photographer owns it and the copyright.

I have two arguments:

1) a nature photographer sets up a camera in the woods, attached to a trip plate or a motion sensor. A deer enters the scene, stepping on the plate or triggering the photo from his motion. Technically, I suppose the deer took the photo. But is there anyone who would argue that the resulting photo (and it’s copyright) doesn’t belong to the nature photographer? What if you triggered a security camera in a store? Would you say that you own that picture and the store doesn’t, because they didn’t “take” the picture?

2) a thief steals a woman’s necklace, and using only components from the original necklace, re-cuts some of the stones, removes some items, and reassembles the result into a bracelet. When he attempts to sell the bracelet to a fence who is an undercover cop, he is arrested and he confesses everything. Who owns the bracelet? I think it is immaterial, based on artistic merit, whether the resulting bracelet is now only worth a fraction of what the necklace once was, or is worth hundreds of times the original; the bracelet clearly belongs to the original owner of the necklace. And that’s with a “work of art” created by a human being who knew what he was doing.

In other words, if I had stolen the photographer’s camera and taken a picture, I don’t think anyone would entertain this specious argument, even if the picture I took was better than any of his.

Prior to the 1976 Copyright Act (which went into effect in 1978) the max length of copyright was 56 years (the initial 28 plus an optional renew for 28). So works from 1957 would be entering the public domain this year.

That includes:

Plays and Books: Samuel Beckett: Endgame, Jack Kerouac: On the Road, Ayn Rand: Atlas Shrugged, Dr. Seuss: How the Grinch Stole Christmas & the Cat in the Hat, Ian Fleming: From Russia, with Love.

Movies & TV: Richard Matheson: The Incredible Shrinking Man, David Lean: The Bridge on the River Kwai, the Burt Lancaster & Kirk Douglas version: Gunfight at the O.K. Corral, the Glenn Ford & Van Heflin version: 3:10 to Yuma, 12 Angry Men, Sweet Smell of Success, Jailhouse Rock, Funny Face, An Affair to Remember, early Leave It to Beaver, early Perry Mason, Elvis Presley’s third and final appearance on the Ed Sullivan Show.

Music: That’ll Be the Day, Peggy Sue, Great Balls of Fire, All Shook Up, Jailhouse Rock, Shostakovitch: Symphony No. 11, Bernstein & Sondheim: West Side Story.

And that’s really only a small portion. Typically only 15% of copyright holders renewed past the initial 28 years. So that would mean that 85% of the works created in 1985 would also be entering the public domain.

The truth is that only the famous works, like those listed above, would have been renewed (for books, the renewal rate was only 7%!), since most things exhaust their commercial value rapidly. So the real harm of auto-renewal and the extended terms is that in most cases the copyright holder is not receiving any significant royalties and the works are often commercially unavailable and off limits because of the continued copyright. Neither the creator nor the public benefits from the extension.

Great article by Zachary Strebeck explaining why you can’t copyright an idea, the limitations of copyright, and what is actually protected under copyright law.

Read the article here.

Great article by Rick Falkyinge about how the copyright changes have never been about benefiting the only real stakeholders in copyright, the public!

Read the article here.

An interview with Maria Pallante, Head of the US Copyright Office, and discussion of the upcoming leadership roundtables with music creators:

Maria Pallante, Head of US Copyright Office, To Meet With Music Creators: Exclusive | Billboard.

 

 

Nice article by Michael Carrier about the emphasis on infringing uses of copyright and under appreciation of non-infringing uses:
Copyright’s Blind Spot: The Innovation Asymmetry

Remarks made yesterday by the Assistant Secretary of Commerce:

Remarks of Assistant Secretary Strickling on Copyright Policy, Creativity and Innovation in the Digital Economy | NTIA.

Australian record labels take legal action against restaurants and cafes not paying fees for background music. Read the article-here.

A very interesting article on how, especially prior to the Chace Act of 1891, authors and publishers dealt with the lack of copyright protections for non-American authors.

How Writers Coped Without Copyright – Reason.com.