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.
As I previously mentioned on my Diigo post, I suggested that it is rather unfair that works in the public domain are now considered copyrighted materials. Although every artist, composer and author deserves incentives for their creative work and copyright protections provide such financial rewards, Picasso, Woolf, Stravinsky and Beethoven are no longer here to enjoy that benefit. While the legislation appears theoretically sound, it does not consider the parties actually affected. Aside from local conductors and orchestras who have to forgo performing certain pieces because they cannot afford thousands of dollars to rent the sheet music, students are also deprived of experiencing these works. With this new cost on creative works, students no longer have access to cultural works that were generally considered a traditional part of a child’s education—from art history to performing in a local production that integrates a piece of classical music. If the works were already in the public domain, I think they should have been left there.
It’s not that we can just go back a little further and find pieces of equal value. There are very well defined periods of art, and the reinstatement of copyright, as Andrea said, is not benefiting the artists that created the pieces under discussion. Beethoven and Dante may still be available, but it still makes modern works like Stravinsky and Wharton less accessible. The incentive to create is gone for these pieces; now we’re just denying the public part of their cultural heritage.
I completely disagree with this for two reasons. The first being, these are classic works. These works belong in the public domain because they are so well known. By demanding royalties from these works, congress is denying the works to a public that has every right to experience these works live. The second reason I am obsessed to this idea is I believe that once a work is placed in the public domain, it should stay there. It is not fair to tell the public they have to pay to use a work, then they don’t, and then they do again. Once a work enters the public domain, it should remain there.
I think there are problems with the comparison to the child and candy bars. Yes, it is nice not having to pay for things, and the original artists do have a right to benefit from their original creations, but it is not just about the conductor being able to perform countless compositions. While these creative works can be enjoyed the way we enjoy eating candy, they were also originally created to be seen and performed. We need to consider the artistic influence these works have on other works (something candy cannot provide). I can see why a conductor concerned about the access to a wealth of artistic knowledge would think it dangerous that this knowledge be restricted; it would deprive artists of information many would argue is essential to the creation of art.
I think that the answer should be no to both of the questions posed early on in the article. No one should have the right to deny the public a work of an artist after the copyright is up and definitely not before it is actually up. When we look at intellectual property we must look at it realistically. If an artist is dead and is dead for awhile they can no longer posses anything, nor do they have the need or desire to hold on to things. I believe that cases of art should be treated like property itself. Sure “the world of copyright is so broad that certain overreaching statues and limitations need to be put into place”, but we can look at it in the sense of a house. When the home owner dies, the house goes to the public. The same goes for a motor vehicle both are objects that we posses/own. The only way a case should be considered for this is if the owner makes specific demands in the last will and testament.