You are missing a few steps in your reasoning. That the Sonny Bono act lengthened copyrights to match Europe does not imply that it was not a malicious pox on the US citizenry, nor that it was not heavily influenced by corporate lobbying.
Furthermore, you can’t ignore the fact that that the EU directive (which harmonized terms to life+70) was itself subject to heavy lobbying. It’s lobbying all the way down.
It’s an interesting and effective strategy: you let one country or union (where the winds are more favorable) run ahead, and then argue for harmonization. The end result converges on the high side, and everyone ratchets forward. Rinse and repeat.
I can’t blame them for lobbying. Where would the Disney Corporation be if all their most beloved characters had fallen out of copyright? Anyone would be able to take any Disney character and make their own cartoons and movies. Most of Disney’s value is in those films.
The problem is that in order to protect Disney’s interest in retaining the value of their works, we also extend it to all works in a one-size-fits-all copyright mishmash. We might have to realize that certain material just needs to remain in copyright for longer.
Maybe keep copyrights for X number of years, and after that, the copyright holder would have to pay a large fee to renew that copyright. The older the work, the larger the fee. Let’s say the copyright is for 25 years after the author’s death or 50 years after creation (since many works are now owned by corporations that never die). After that allotment, the copyright holder would have to pay $1,000,000 to extend it another 20 years. After that, $1,500,000.
This way, works that should fall into public domain can fall into public domain (and that includes about 50% of the copyrighted material that has unidentifiable copyright holders). Meanwhile, corporations that produce content will still be able to keep their most valuable content under copyright and not worry about others appropriating their works.
Disney’s an amoral corporation, so I don’t “blame” them for anything. I can only describe their behavior and whether that behavior harms or benefits the public.
The first thing to remember is that if copyright were indefinite, many of those beloved Disney characters wouldn’t exist at all. We can thank limited copyright for Disney’s ability to take old works and put their own unique take on them (this includes the works of Mark Twain that you mentioned above). I think this is great–it’s a huge net win for society. But Disney wants to shut the gate just after they passed through it.
The value of expiring copyright isn’t just that the public gets free stuff–that’s the smallest part of it, really. The value is that other artists can start making their own variations after a suitable time. All art is derivative in one way or another, and limited copyright is a way of ensuring that artists can make money in their own time, while still allowing overall progress.
Again, Disney made extensive use of the public domain, and we’ve all benefited from it. We will likewise benefit when Disney’s works start to enter the public domain. That Disney thinks they’ll be harmed is a factor that shouldn’t even enter the calculation.
Going back to 1831, the US copyright term was 28 years plus 28 more if renewed. Before it was 14 and 14. The “life of the author” part came into play with the 1976 act.
That part is rather dreadful. Write an amazing book at 19. The copyright term is vastly different if you die right then or if you live to be 100. Why???
(And if you want to hear something about “Happy Birthday”, note how odd Universal’s position is. They acknowledge that it was written by other people. But the person who copyrighted it is claimed to be an employee of something that they later took over. So it’s a work-for-hire and a longer term must apply. Okaaay.)
And this stuff about “Don’t blame Disney, blame Europe” is disingenuous. The US and Europe are far from lock step on copyright law. E.g., they didn’t get around to extending copyrights for recorded music until 2011, and with the “retroactive” features done oddly and not like the US.
The one and only point is that the U.S. would have lengthened copyright to match Europe if Disney never existed. We would have done so if Disney were against it.
Disney is a gnat in the greater world. They have influence, but so do a million other actors.
How can I prove this? Because works are going to start entering the public domain in 2019. Copyright changes take years, maybe decades, to get through Congress. And there is no serious changes to the length of copyright that are being pressed today. Not even any unserious ones. Everything that was true about Disney in 1976 and 1998 are true today. So why doesn’t Disney use its awesome powers over the law? Because it never had them to begin with, is my answer.
And no other major western countries are going to lengthen copyright either. The notion that the weakest one in the herd is being picked off by the big bad Disney wolf is ludicrous. Has been in the past, is now.
The irony, a gigantic irony the size of Disney World, is that copyright undoubtedly needs a total overhaul to conform to the changes in the entertainment world, the online world, and the creative world. And those won’t happen, because nobody is going to touch copyright for decades - it’s too contentious, the sides are too far apart, and the world is changing too rapidly.
I’m unconvinced. The US went 100+ years without signing the Berne convention, and then a few years later we’re in near lockstep (even though, as you note, the Berne convention only required life+50).
I should add that to some extent, I’m using Disney as a synecdochical proxy for the greater set of corporate copyright interests, such as the MPAA. Disney just happens to have the greatest public lobbying presence, and has probably depended the most on public domain works for their own success (and so they appear to be the most hypocritical).
Everything about Disney is the same. The same is not true about the opposition, which is better organized now than it ever was. Some of this opposition is from “democratic” groups like the EFF; some is from other corporations with different interests, like Google.
That’s for sure. Decades of entirely self-serving legislation by copyright interests, and which has a history of being backwards and hostile to technology, has a tendency to cause that kind of polarization.
I can only hope that some of the worst abuses in current law will be knocked down in court. I’m somewhat optimistic; this recent case greatly improves the status of fair use when it comes to online video.
The stated Constitutional purpose of copyright and patent is “To promote the Progress of Science and useful Arts.” The means the Constitution provides is the “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
ISTM that if “certain material just needs to remain in copyright for longer,” that almost surely means it’s already paid off handsomely for its creators during the one-size-fits-all term, and the Constitutional purpose of copyright has been served. They’ve been amply recompensed for their works, and that recompense, and the prospect of more of the same, surely encourages them and others to create new works as well.
Also, correct me if I’m wrong, but aren’t the principal Disney characters (Mickey Mouse, Donald Duck, etc.) trademarked? If so, nobody can make their own Mickey Mouse cartoons for commercial distribution, even after the early MM cartoons are no longer protected by copyright. Trademark lasts forever, or at least as long as the trademark owner actively contests any infringement.
Last night (Saturday night), I was in Five Star Bar in the Soi Cowboy red-light district. Their house band, the Iron Horse Band, has played there for decades, although I doubt any of the original members are still there. But they broke into an impromptu rendition of “Happy Birthday” for some farang (Westerner) who was in there with a group of friends. The band plays 1960s and 1970s Western rock, and I’d be surprised if they’ve ever paid any royalties at all.
Friday night I was shooting pool with a couple of friends in the Queen’s Park red-light district, and the places we went to are similar to what you see in many of the smaller, seedier bars in Thailand now, and that is the owner has a laptop sitting on the bar, plugged into the speaker system. YouTube is on the screen. Anyone who wants to can play deejay – just walk up and type in whatever song you want played and YouTube provides it. I’ve not heard of a system here as that you’ve described in Australia.
Look out for a huge class action suit by people who have stumped up the $1500 that Warner charges for use of the song, and this could go way back to 1935 when the company claimed they bought the rights. What they in fact bought was the right to a particular piano arrangement of it, not the melody or lyrics.
The plaintiffs in the Good Morning case are asking for $5 million in restitution to those people. I doubt there’s much more to be had than that. In any case, if those people didn’t think Warner’s copyright was valid they could have refused to pay. Unless Warner misrepresented the facts to assert ownership it’s very unlikely that they’ll have to pay back prior royalties.
Fair Use in the US Copyright Law is for the purposes of journalism, scholarly papers and arts review criticism. That is what Fair Use is for. People too often steal things and claim it’s Fair Use when it has nothing to do with that. YouTube is full of misguided people who upload things they have no legal right to do so, and calling it “Fair Use” or saying that no copyright infringement is intended. That’s no different than taking someone’s car without permission and saying you didn’t intend to steal it.
The Star Spangled Banner is in the public domain, but not the arrangement of it, unless it was specifically placed in the public domain. If I create an arrangement of the Star Spangled Banner for orchestra, this is my edition of the work and I would be entitled to control the copyright of the arrangement. It doesn’t mean I own the original rights to the Star Spangled Banner, but I do my arrangement of it. There are thousands of classical and baroque works just to name a few, which are in the public domain, but the arrangements of these works are own and controlled as they should be by music publishers.
Just to be clear about this, the court did not rule that “Happy Birthday” is in the public domain.
No party in the case is claiming copyright interest in the melody, so that wasn’t at issue. It’s probably correct to say that the melody is in the public domain, but this particular court ruling didn’t address that.
Regarding the lyrics that Warner/Chappell and Summy Birchard before it have asserted a copyright interest in, the court did not say that those lyrics were in the public domain, only that Warner/Chappell does not own the rights, if there are any rights to own.
As stated here, this is not true. Fair use makes it easier for those professions to function without harassment but it is not *for *them, which implies it is not for other purposes.
The actual wording of the law:
Criticism and comment proceed journalism and scholarship. Everybody has a right to criticize and comment; it is not a privilege of professionals. Why, one can even do it on a message board and that’s the playground of the scum of the earth.