Once in the Public’s Hands, Now Back in Picasso’s

Nine years ago, the Supreme Court agreed to hear a case about whether Congress was free to add 20 years to the copyright life of works that had not yet entered the public domain. But during these sessions, another question came to the forefront – could copyrights be restored to those works which had already entered the public domain?

In Eldred v. Ashcroft (2003), the Court ruled that copyrights could be extended. But now, they have agreed to address the other question that was raised during that case. Back in 1994, Congress restored copyrights in many famous foreign works, including Hitchcock films, Woolf novels, Stravinsky symphonies and Picasso paintings. This new case, which goes to court this month, questions the constitutionality of these actions from 17 years ago.

The lead plaintiff in this new case, Lawrence Golan, a conductor and teacher, feels that those actions harmed orchestra conductors, teachers and film archivists who had relied for years on the free availability of works in the public domain that they had performed, adapted and distributed. He agrees that artisans should be given financial incentives to create, but withdrawing those seminal works from the public domain did “great harm to the cultural life of small communities for no good reason.”

This is where I start to question what he is trying to argue. Something has been taken away from him, and now he is upset about it. Let’s say that a child is repeatedly given candy bars, without having to pay a dime. And the child REALLY likes candy bars. And then one day, he doesn’t get any more candy bars for free. Naturally, the child is going to be sad. But is this considered an injustice? Sure, the candy bar was really great, and it really enriched the child’s life (or at least his taste buds). But the fact of the matter is, he was given access to something non-essential – purely enriching. And now that he would have to pay for this access, does he have a reason to take this to the Supreme Court?

Golan’s lawyers try to frame his pleadings into legal terms, stating that the Constitution meant to create incentives, not monopolies. Naturally, Picasso himself isn’t getting cash in his pocket anymore from people licensing Guernica. But the world of copyright is so broad that certain overreaching statues and limitations need to be put into place. Additionally, the government added that the 1994 law is simply treating these foreign works as if they had attained copyright status at their inception. Once their copyright runs out, they will go back into the public domain. One question is this – is it more important to recognize the copyright potential for foreign works that have had a significant impact in our country, or is it more important to appease the local symphony conductor, who will now instead have to choose from countless other musical options for his repertoire? Symphonies by Stravinsky and Profokiev deserve copyright just as much as John Doe’s folk song that he wrote in the back of a diner. Just because that copyright came a little later in the game shouldn’t instigate backlash from people who had become accustomed to using the famous, yet-to-be-properly-copyrighted works.

DVD pirates running rampant in China

It is perfectly well-known that China is a hotbed for pirated DVD’s, often coming out with versions of new releases only days after their theatrical release. What is less often considered is the reasoning behind the illegal industry that brought in $6 billion last year, as opposed to the $1.5 billion from the traditional Chinese movie industry.

There are two factors that are cooperatively increasing the profits brought in by pirated movies. Firstly, Chinese consumers are showing more and more interest in Hollywood films, due to globalization, rising incomes and the spread of the Internet. Simultaneously, the Chinese government imposes strict sanctions on the movie industry, allowing only about 20 foreign movies into movie theaters each year. Censors block many popular American films, including Black Swan (for explicit sex scenes) and The Social Network (for its prominent – and illegal in China – subject matter, Facebook). In order to circumvent these regulations, Chinese consumers often turn to pirated DVD’s, which oftentimes are extremely well produced and packaged, rather than the common stereotype of grainy footage from a handheld camera in the back of a movie theater.

Clearly, in their efforts to keep foreign influence outside of their country, the Chinese government is fueling the fire. Additionally, one has to question their regard for global copyright. Clearly their concern for the homogeneity of their country is paramount, but by only legally allowing a very small percentage of new releases into the country, they are inspiring the undercutting of copyrights of hundreds of new movies every year. Let us say, for a moment, that we are the Chinese government, and all of a sudden, we have a change of heart, and copyrights become a very important issue to us. But we absolutely cannot start letting more and more movies into the country legally, because obviously that would lead to our downfall. What are some possibilities that we could explore to help preserve international copyrights of movies, without simply allowing them be shown legally in our movie theaters?

Google books: creating a digital library without Google’s money

Google’s efforts to create a global digitized library were dealt a serious blow when a New York federal judge threw out a 2008 settlement between Google and authors and publisher groups. Google co-founder Sergey Brin had described the plan to create such a library as a way of unlocking the wisdom imprisoned in the world’s out-of-print books. However, many felt that it was another example of a profit-driven entity trying to amass large quantities of other people’s copyrights.

Through Google BookSearch, certain snippets of books were visible to the public. Because many of these books were still under copyright, Google found itself the target of multiple lawsuits, but it managed to evade these accusations by invoking the fair use doctrine. This was an essential part of the 2008 settlement that seemed to calm the storm. But also within that settlement was the stipulation that would have allowed Google to continue scanning new entries and offering access to the results for a fee. The trickiest part of the settlement dealt with “orphan books”, or those books that were copyrighted but out of print, and whose rights holders could not be found or identified. Google decided simply to go ahead with their scanning process, rather than try to spend the time seeking out the rights holders and attaining their permission to do so.

One question that comes from this situation is this: if we are so eager for the idealistic global digital library, is it so important that one company is making it all possible while deriving a profit? One could argue that Google has established itself as a global superpower, and it has no real obligation to create such a library. Yet Google has decided to undertake the huge task, and if they skim a little off the top, is that harming the pedigree of the digital library? Even when dealing with “orphan books”, one has to admit that if a copyright holder cannot be readily found, then potentially the holder does not hold the copyright itself in high esteem, and they are not necessarily looking to profit from their own copyright.

New York Times writer, Rob Walker warns, it seems like “Girl Talk’s music is a lawsuit waiting to happen” (2008). However, Girl Talk has faced almost no legal action against his work. Claims such as Walker’s make the issue even more urgent. But, why hasn’t the record industry sued Girl Talk? The question, which is extremely relevant, brings with it, some sizable concerns about the United States Copyright Law, and its position as a protector of creation.

In Sony Corporation of America v. Universal City Studios, the Supreme Court decided that the use of the Betamax recorder was fair because it mostly allowed the copying of content that had been broadcast for free viewing. However, Girl Talk samples mostly commercial hits, which were released with the intention of making a profit on recorded music sales. None of the samples used on GirlTalk’s music intended to be academic or educational in nature. The use in the case of the Betamax was a “noncommercial and nonprofit” activity. Users of the technology were not economically benefiting from the copying, it was just a personal use. However, Girl Talk doesn’t do what he does just for personal enjoyment, he is a performer, and his mash-ups are his unique selling potential.

Moreover, Girl Talk uses the actual sound recordings of songs. In Bridgeport v. Dimension, the Sixth Circuit ruled that phonographic recordings couldn’t undergo the same analysis as the actual composition itself. It also ruled out the possibility of “de minimis” copying for sound recordings. Therefore, any amount of copying, no matter how small, could technically be infringement. On the other hand, one could contend that Girl Talk’s style of stitching together several short samples to create a larger piece, is unique to him. Girl Talk seems to be adding his own creative expression to the samples. This could possibly count as fair use. Adding to this, it is highly unlikely that the use of twenty to thirty second long samples would prevent people from going out and buying the original songs. To the contrary, one could argue that his mash-ups advertise, and therefore increase the sales of original songs.

This SXSW Panel, seems to hit the nail on the end. Watch out for DJ Spooky’s analysis of the “media cloud” we are surrounded by and constantly reference:

http://www.youtube.com/watch?v=fJdFYgdb0vU

The verdict seems unclear. Girl Talk satisfies some aspects of the fair use test, and fails others, and as a result his music falls in a grey area. But, even though he uses the fair use card to his defense every time, the big question here is whether the fair use test is even valid for an artist like Girl Talk. The current copyright understandings draw most of their matter from the 1976 legislation. Does it stand valid in the twenty-first century?

Interestingly, Girl Talk’s thoughts reflect some of the philosophical justifications behind U.S. Copyright Law. According to the statute, copyright protection should be limited because by creating something, one actually reduces “resources” available to others to create (McJohn). Essentially, what copyright aims to do is to protect artistic creation. This train of thought makes Girl Talk’s music seem flawless because it does not affect the market for the original works, and at the same time is a unique form of expression.

In this article from Wired Magazine last month, Google’s YouTube claims that “giving away music for free generates as much money for copyright holders as charging for it.” The article goes on to say that most of this increase in revenue from free music comes from advertising. Traffic to free music has increased dramatically, especially with mobile phone usage, where it is made more difficult to skip advertisements. In addition, the advertisements can be more interactive.

Phil Farhi, a representative from YouTube, is quoted in the article, pointing out how free music can make money: “We’ve been very focused on advertising so far, but there are users who will pay for content with their money, and users who will pay for content with their time and attention. We’ve been focused on [the latter]. What we’re seeing is that by really optimizing everything, you can make just as much money for a label as the others…you really need to consider not just the price tag, but the scale of audience and views that you’re reaching with that.”

Another article from last year in the Economist discusses how the real money in music is concert ticket sales, which have been rising in the last few years. Therefore, if you put these two ideas together, it can be conceived that increased viewership from free music on sites like YouTube can lead to more fans for the artists, and perhaps increased ticket sales and therefore increased revenue.

Is this realistic? Do you think the concert sales will make up for lost revenue from the free songs?