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Itís a Wonderful Copyright Mess
Pajamas Media ^ | 12/24/2009 | Adam Graham

Posted on 12/24/2009 5:17:13 AM PST by markomalley

Why does It’s a Wonderful Life now only air twice during the holidays — and only on NBC? Growing up in the 1980s, I saw It’s a Wonderful Life several times each year. It was a staple of hundreds of networks. It was on the Family Channel, on the local independent TV station, and on innumerable other venues.

The great mystery revolves around our nation’s copyright laws, established in the copyright clause of the Constitution. Article 1, Section 8, Clause 8 explains the purpose of the copyright power [1] given to Congress:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The Copyright Clause recognizes two basic facts. First, there is the concept that many people who have pirated the latest music and movies, as well as those who complain about pharmaceutical companies making big profits off new discoveries, ignore. If you want new music and advances in science, people must be able to make a profit. Because of that, copyrights and patents are necessary.

Second, the clause recognizes that the purpose of copyrights and patents is primarily the advancement of civilization — not an ongoing perpetual grant for the copyright holder. The advance of science demands that a patent lapse so that others are able to incorporate that patented design into their future plans. The same is true of a copyright. When something is written or produced, it is the property of the writer. However, after a time, these intellectual properties become part of common culture. There is no copyright on Shakespeare or the poetry of Walt Whitman. These authors wrote their work, collected their benefits, and moved on.

Which brings us back to the case of It’s a Wonderful Life. When the film was released in 1946, it was given a 28-year copyright term which was eligible for a 28-year renewal. For whatever reason, a request wasn’t put in for renewal, and it was believed to have fallen into the public domain [2] in 1975. Had it not connected with the American people on its rediscovery, it would have become a resident of dollar DVD bins, like other public domain mainstays such as the Fleischer Superman cartoons [3] or Bill Cosby’s TV movie Tell All My Friends on the Shore [4].

However, the movie studio smelled money. Thus, it fought for a decade until it regained control of the film. The studio argued that while the film’s pictures had entered the public domain, the story which the studios had bought the rights to had not, and therefore the film could not be shown. Thus, this Christmas Eve, NBC will show a 63-year-old movie based on a 70-year-old short story and will pay out handsome royalties to a company that had nothing to do with the release of the film other than buying the company that released it. How exactly does this contribute to the progress of the useful arts?

The first Copyright Act in 1790 set [5] the term of the federal copyright for 14 years, renewable for 14 additional years. Rufus Pollock, an economist at Cambridge, mathematically concluded in 2007 [6] that 14 years was the ideal length of copyright protection. As with most things, though, America has gone the other way with absurd lengths of copyright protection, with ever-lengthening terms.

All of the changes in copyright law have not been negative. Under the 1790 law, Charles Dickens got cheated out of royalties in the United States, as foreign authors weren’t protected. The horror classic Night of the Living Dead [7] became a legal horror story for its creators when its theatrical distributor failed to put a copyright notice on the released print, thus dropping it into the public domain upon its release and depriving the creators of any TV or DVD royalties. New copyright law ensures that won’t happen, as copyright notices aren’t required.

Unfortunately, it also has created some absurd situations. In 1998, with the first Mickey Mouse cartoon, Steamboat Willie [8], set to enter public domain in 2003 after 75 years of copyright protection, Congress passed a bill extending all renewed copyrights by twenty years and named it after that noted legal scholar Sonny Bono [9].

The Sonny Bono Copyright Term Extension Act has had some interesting consequences in nearly every medium imaginable. In the realm of Christian worship [10], “Turn Your Eyes Upon Jesus” (copyright 1922) can be used freely by any worship leader, while churches will have to pay royalties if they want to legally sing “Great is Thy Faithfulness” (copyright 1923) before 2018. In the realm of detective fiction, all the Adventures of Sherlock Holmes are in the public domain except for the last ten [11], which are set to expire between 2018 and 2022.

However, the key word here is “set to expire.” Will any of these works, from The Adventure of the Retired Colourman to Steamboat Willie, actually enter the public domain? I doubt it. Rep. Mary Bono Mack (R-CA) gave a clue that this was just the first of many copyright extensions. In support of her bill, she declared her support [12] for long-time MPAA president and lobbyist Jack Valenti’s concept that copyright law ought to be extended to “forever minus one day,” as it would be unconstitutional to extend them forever. Disney will never let Pinocchio, Snow White, or Sleeping Beauty enter the public domain, even though, ironically, it was able to make these films because of the public domain.

However, the eternal copyright poses a problem because it goes in direct contravention of why the Constitution granted the copyright power. The goal was to advance the arts and sciences through the creation of a rich cultural heritage. Instead, copyright renewals for terms that may last nearly a century have imperiled our cultural heritage. Our laws have been made with big successful films in mind that are critical and commercial successes that can be counted on to turn studios a profit year after year. But only 2% of works published between 55 and 75 years ago maintain any commercial value [13]. In the vaults of film studios are thousands of hours of movies and television shows that have not seen the light of day in years. The physical quality of the prints decays over time.

Already several films have suffered from death by copyright.

Many out-of-print books that could be re-released, or even slightly revised for modern audiences, remain not only out of print but unprintable due to copyrights that passed to disinterested parties. Consider the Mr. and Mrs. North [14] books, which were extremely popular in the 1940s and 50s, but have been out of print for 25 years. The first novel is set to come into the public domain 95 years after its 1940 release, in 2035. It may be available through Project Gutenberg, [15] or a successor site, provided an actual copy survives that long.

In addition, forces beyond the market threaten many of these works, such as the nefarious political correctness that reared its ugly head when the Fox Movie Channel canceled a Charlie Chan marathon due to protests from Asian pressure groups [16]. The irony is Charlie Chan was created in the 1920s by novelist Earl Diggers to combat the portrayal of evil Asians, [17] like Fu Manchu, with a brilliant and benevolent police inspector. Chan was popular, appearing in 37 movies. For some modern pressure groups, he was not sexual enough and acted subservient and overly polite. (Apparently, the films should have featured an Asian version of Shaft [18] in the 1930s.)

To compound matters, Fox controlled the rights to these films and none were available on DVD, and many of the VHS tapes are no longer available. Fox eventually aired the films, however, with an extra that fans were sure to love: a panel of Asian film actors and critics to complain about the films and American society in between the movies [19].

Most of the Charlie Chan films have since made their way onto DVD, however the incident illustrates the risk of giving Hollywood the rights to eternally control cultural treasures. Those films and books which are viewed as out of line with the views of some pressure groups could have public access severely restricted or revoked, all under the guise of the copyright, which was designed to encourage these treasures’ development.

How can we restore sanity to our copyright system and preserve American culture?

First, there should be no further extension of copyright protection. Ninety-five years is far more than enough protection.

Secondly, Congress should approve the Public Domain Enhancement Act, [20] which would require U.S. copyright holders of works older than 50 years to pay a $1 fee every ten years to maintain their copyright. If it’s not worth $1 to a copyright owner to maintain the rights to their work, it should pass into the public domain.

Third, content creators should be encouraged to release their work into the public domain far earlier than the current limits. Most people don’t care what a writer who has been dead seventy years wrote. By releasing their work into the public domain sooner, authors may ensure that their work continues to have life long after they’ve passed.

Disney and other nigh immortal media companies can be expected to demand another round of copyright extensions. If they continue to prevail, we will lose even more of our cultural heritage. The only real solution is writing copyright law that once again restores the Constitutional balance between the rights of content producers and the public.


Article printed from Pajamas Media: http://pajamasmedia.com

URL to article: http://pajamasmedia.com/blog/it%e2%80%99s-a-wonderful-copyright-mess/

URLs in this post:

[1] explains the purpose of the copyright power: http://en.wikisource.org/wiki/Constitution_of_the_United_States_of_America#Section_8

[2] fallen into the public domain: http://homepages.law.asu.edu/%7Edkarjala/OpposingCopyrightExtension/publicdomain/Williams12-22-99.html

[3] Superman cartoons: http://en.wikipedia.org/wiki/Superman_%281940s_cartoons%29

[4] Tell All My Friends on the Shore: http://www.imdb.com/title/tt0067858/

[5] set: http://en.wikipedia.org/wiki/Copyright_Act_of_1790

[6] concluded in 2007: http://www.rufuspollock.org/2007/07/09/forever-minus-a-day-some-theory-and-empirics-of-optimal-copyright/

[7] Night of the Living Dead: http://en.wikipedia.org/wiki/Night_of_the_Living_Dead#Copyright_status

[8] Steamboat Willie: http://www.imdb.com/title/tt0019422/

[9] Sonny Bono: http://en.wikipedia.org/wiki/Sonny_Bono_Act

[10] realm of Christian worship: http://www.gbod.org/worship/default.asp?act=reader&item_id=2790&loc_id=9,10,38

[11] except for the last ten: http://en.wikisource.org/wiki/Talk:The_Casebook_of_Sherlock_Holmes

[12] her support: http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=1998_record&position=all&page=H9952

[13] maintain any commercial value: http://www.lofgren.house.gov/index.php?option=com_content&task=view&id=40&Itemid=47

[14] Mr. and Mrs. North: http://en.wikipedia.org/wiki/Mr._and_Mrs._North#Novels

[15] Project Gutenberg,: http://www.gutenberg.org/

[16] from Asian pressure groups: http://vjmorton.wordpress.com/2003/07/15/the-amazing-chan-and-the-fox-klan/

[17] the portrayal of evil Asians,: http://en.wikipedia.org/wiki/Charlie_Chan

[18] Shaft: http://en.wikipedia.org/wiki/Shaft_%281971_film%29

[19] to complain about the films and American society in between the movies: http://www.modelminority.com/modules.php?name=News&file=article&sid=527

[20] Public Domain Enhancement Act,: http://en.wikipedia.org/wiki/Public_Domain_Enhancement_Act


TOPICS: Business/Economy; Politics
KEYWORDS:

1 posted on 12/24/2009 5:17:13 AM PST by markomalley
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To: markomalley

Good Lord. Doesn’t everyone have it on DVD by now? My family must have had it for ten years (AT LEAST) and can watch it anytime. It costs like 20 bucks. Why anyone would want to watch it on TV with commercials is beyond me. Talk about complaining for nothing.....obviously a slow news day!!!!!


2 posted on 12/24/2009 5:19:58 AM PST by napscoordinator
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To: markomalley

I think the librarian told me 78 years.


3 posted on 12/24/2009 5:23:22 AM PST by Sacajaweau
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To: markomalley

Hmmmmm Many good points.

Thanks.

Perhaps properties which meet some level of commercial value could be protected automatically for 70 years—the Biblical lifespan.

And, perhaps another extension of 10-20 years or so by a small $1.00 fee as long as the author was alive.

Shoot, I’d even be comfortable granting heirs profits from the top 1% of works (in terms of CURRENT POPULARITY, PROFIT, MERIT) protected by say a $25.00/year fee for another 25 years.

There’s just no sense in losing a lot of works that no one cares about commercially at all.

And, I don’t think there’s much sense in allowing major conglomerate corporations to profit from works endlessly when many authors and creators see such a small fraction of the benefit.

I am a fierce proponent of capitalism. I’m not a supporter of monopoly-ism.


4 posted on 12/24/2009 5:27:54 AM PST by Quix (POL Ldrs quotes fm1900 TRAITORS http://www.freerepublic.com/focus/religion/2130557/posts?page=81#81)
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To: markomalley
Fur Shur all 85,000 posts I've dropped on FR through the years are protected by copyright ~ you hear that Dick, and you, over there, Hillary, and Chris, and ........

Well, it's kind of like calling out the names of the reindeer on my "I ain't protecting it yet" sleigh full of soundbytes that help advance our side in the Culture Wars and destroy the Democrats.

Merry Christmas everybody.

5 posted on 12/24/2009 5:28:08 AM PST by muawiyah
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To: muawiyah

As a working photographer, I cannot tell you how frustrating it is to see my work used in print and online without compensation.

People think that the tens of thousands of dollars worth of equipment that I bought and paid for grew on some tree in my back yard. Publishers of newspapers and web sites tell me that if they simply credit my work I should be happy. Of course, their children get fed on the fees they charge for their papers and other news information.

Some clients think it is cool to extend the time it takes to pay me from the agreed upon 30 days to 90 days because the “state” told them to change their payables cycle. Again, I need to dip into savings or go further into debt to pay MY expenses, because for some reason the mortgage company likes to get paid every thirty days. Should I tell them that the State of MA decided it would be best for everyone to wait 90 days?

The ONLY thing that gives me the legal authority to go after these thieves is the copyright laws. I can use them to collect fees that should have been paid. I can use the “threat” of invoking my rights to cause companies to scrap tens of thousands of dollars in advertising materials when I revoke the assigned rights due to non payment.

If this means I have to pay to go to the movies and I have to make sure I see “Its a Wonderful Life” only twice a year, then so be it.

These rules are made for folks like me, who work in the business. Once my photos leave my control, I have no control. These laws are the only thing that I can use to “prove in a court of law” that the work is mine and that I own it.

Please don’t start sounding like those people who think making a profit is bad, or who think its OK to download that photo off the web and send it to all of your friends, or publish it in the local paper without permission.

I love my work, but protecting it is one of those silly little things that keeps me under my roof and my kids fed.


6 posted on 12/24/2009 6:47:01 AM PST by Vermont Lt (I have lived here all my life, and now is the first time I am ashamed of my country)
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To: markomalley

Political correctness killed Song of the South.


7 posted on 12/24/2009 6:52:27 AM PST by Lonesome in Massachussets (The CRU needs adult supervision.)
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To: Vermont Lt
I love my work, but protecting it is one of those silly little things that keeps me under my roof and my kids fed.

Yes, you should get paid for your work and you should have legal recourse against those who steal your work.

But do you not think that a period of 28 years of copyright plus another 28 years if you find the work worth copyrighting again is sufficient?

8 posted on 12/24/2009 7:49:08 AM PST by GCC Catholic (0bama, what are you hiding? Just show us the birth certificate...)
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To: GCC Catholic

Try to think of an iconic photo—say Sonny Liston on the mat with Cassius Clay standing over him. Or Marilyn Monroe standing, holding her dress over the grate. Or Ansel Adam’s photos of Yosemite (although many of those were shot for the government, and are in the PD I think.)

Do the photographers who took those photos have the right to continue to sell the rights to them?

The only way MY shots would be valuable that long is if one of these dopey college kids ends up being President!

But to answer your question, “Yes.” I do think that an “artist” has the right to protect their works and profit from them.

Yes, anyone can go to their children’s college football game and take pictures. I am sure with a little finesse they could even wrangle their way to the sidelines. But, standing side by side with these people I can make photos that are spectacular to their mundane. Why, because I shoot sixty games per season. This fall, between August 15th and November 15th, I shot about 230 events (games.) Sometimes two or three or four a day. I made nearly half a million photo images. I AM better than most people at my job. Probably in the 95 percentile, easy.

Why shouldn’t I protect my product. I just don’t get why people don’t think I should. Can I take apart my Smith and Wesson 1911 and start making it in my garage? Or are there licenses and patents that make that illegal. It is the same thing.


9 posted on 12/24/2009 9:34:59 AM PST by Vermont Lt (I have lived here all my life, and now is the first time I am ashamed of my country)
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To: Vermont Lt
Depends on the profit you are after. I get my "sound bytes" on TV ~ and if that helps keep the folks who use those sound bytes on TV, I consider that to my distinct economic advantage.

Did I say profit was bad?

10 posted on 12/24/2009 5:09:56 PM PST by muawiyah
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To: Vermont Lt
Do the photographers who took those photos have the right to continue to sell the rights to them?

Do they? - under the current law I would suppose they do. Should they? - After 56 years, It is my opinion that they should not. If it's a picture worth caring about, it is most likely of wider cultural value, and should be public domain by then. If it isn't worth caring about, then it's a moot point.

I could even be alright with a copyright that extended through the life of the work's creator - but I think it is beyond ridiculous that artistic works have gained a seemingly indefinite-length copyright.

Why shouldn’t I protect my product. I just don’t get why people don’t think I should. Can I take apart my Smith and Wesson 1911 and start making it in my garage? Or are there licenses and patents that make that illegal. It is the same thing.

You should protect your product - but there is no reason that someone's estate should reap benefits indefinitely from someone long gone.

As far as patents - apparently it's not the same thing, since the laws differ, but they too expire after a given amount of time (and rightly so). It is the fact that they expire that allows others to understand and improve on them.

11 posted on 12/24/2009 5:11:51 PM PST by GCC Catholic (0bama, what are you hiding? Just show us the birth certificate...)
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To: GCC Catholic

This is a good discussion.

How about this angle:

Using the same hypothetical about Smith and Wesson, (I am about five miles from the Wesson mansion) would it be fair to have stripped the Wesson and Smith family of their stock after the deaths of the founders? Or any other figure who has created a product and sold it through their lifetimes? (Horace Smith actually gave away most of his fortune—I benefitted from a grant from his foundation to go to college, so HE did the right thing.)

I have photographed some current professional basketball players when they were playing in high school. I was probably 25 when I did that. Is it fair to suggest that I should not be able to sell them for 56 years (some will be in the Hall of Fame.) They might not “appear” to be culturally important (I would suggest that they are not) but they will still bring me royalties.

I hope you had a Merry Christmas. I respect your opinion, although I may disagree with it. Have a wonderful new year.


12 posted on 12/26/2009 6:32:00 AM PST by Vermont Lt (I have lived here all my life, and now is the first time I am ashamed of my country)
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