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Michael Hiltzik: The Sheer Absurdity of Copyright Law

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Michael Hiltzik of the Los Angeles Times explains why American copyright law benefits major corporations, not the creators of original works.

In 2022, he says, there will be a bumper crop of well-known titles that will enter the public domain, including Winnie the Pooh, Ernest Hemingway’s The Sun Also Rises, poetry collections by Dorothy Parker and Langston Hughes, and first novels by William Faulkner and Agatha Christie. A number of sound recordings, including ones by Al Jolson and Enrico Caruso will no longer be copyrighted.

Hiltzik writes:

As it happens, however, this massive release isn’t something entirely worth celebrating. Instead, it’s a pointer to the sheer absurdity of American copyright law, which long ago came under the thumb of the entertainment industry and distant heirs of artists determined to preserve what is essentially a windfall.

It’s proper to keep in mind that copyright law was not designed originally to keep cash flow running for future generations of a creator’s family. The idea was always to preserve an incentive for creators to create, by guaranteeing that they would be able to enjoy the fruits of their own labor for a set period.

The first U.S. copyright law, passed in 1790, established a limit of 14 years, and allowed the original creator, if still living, to renew the copyright for another 14 years.

Eventually, the term was extended to 28 years, plus a single renewal option of another 28. (The vast majority of copyrights were never renewed.) The 1976 Copyright Act extended the term to 50 years from the date of an author’s death, and the 1998 Sonny Bono Act increased it to 70 years after the death of the author, and to 95 years after publication for corporate works-for-hire.

The Walt Disney corporation and the families of George Gershwin and Oscar Hammerstein, among others, have lobbied effectively to keep their copyrights intact. Disney wants to protect its rights to Mickey Mouse as long as possible. Even though A.A. Milne’s book Winnie the Pooh will no longer be copyrighted, Disney owns and defends the animated forms of Winnie, as well as the trademark of ”Winnie the Pooh.” The Disney copyright on Mickey Mouse is scheduled to expire January 1, 1924, but Hiltzik bets that Disney will lobby for another extension of the law to protect its property.

A notable feature of all this maneuvering over copyright terms is that it hasn’t done much to straighten out the mazes of copyright claims afflicting some of our culture’s most important and popular creative legacies.

Emily Dickinson, for instance: The Belle of Amherst died in 1886 with the vast majority of her poems unpublished (indeed, unknown). That was 136 years ago, but most of her works are still subject to a copyright claimed by Harvard University, which maintains that “all applications to quote or reprint Emily Dickinson material should go through the Harvard University Press Permissions Department.”

Harvard zealously defends its control of Emily Dickenson’s works.

Otto Frank, the father of Anne Frank, holds the copyright to her diary until the 2040s, even though she died in 1945 at age 15 in a concentration camp.

The family of Dr. Martin Luther King holds the copyright to everything he wrote, including his speeches.

Hiltzik writes: As I reported in 2015, the King family stringently controlled broadcasting of King’s seminal “I Have a Dream” speech without royalty payments, even as the 50th anniversary of its Aug. 28, 1963 delivery on the National Mall approached in 2013.

When I compiled an antholgy of great Americans speeches, poems, and songs called The American Reader in 1990, I had to pay the family royalties to include not only the ”I Have a Dream” speech, but his important ”Letter from a Birmingham City Jail.” They are significant historical documents, and I wrongly assumed they were in the public domain.

Extending the copyright of original works for a century does not encourage creativity, especially when the creator of that work has died. The descendants should have a reasonable time to enjoy the fruitsof their relatives’ labors. But that too should be limited to a generation, not monetized through multiple generations. It is even harder to justify the century-long copyright eagerly sought and won by corporations.

Hiltzik concludes:

A return to the fundamental principles on which copyright law was originally based would point to a reduction in copyright terms, not the persistent efforts to lengthen them. That’s especially so in the digital age. As the Duke scholars [at Duke’s Center for the Study of the Public Domain], argue, “the public domain is being impoverished just as its opportunities for creativity, innovation, democratic participation, and knowledge advancement are transformed.”

Knowing the power of the corporate lobbyists, he is doubtful that the terms of copyright will be reducedn more likely, they will be extended yet again. You know, Mickey Mouse.

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