When Copyright Kills

A couple of weeks ago John Oliver pointed out that the original version of Mickey Mouse is about to slip into the public domain and out of copyright control. Naturally, he has plans for this, but it’s worth remembering that the last time Steamboat Willie was in danger of passing out of copyright control Congress snapped into action and extended the term for copyright protection. I haven’t seen anything indicating they’re going to do it again, but I wouldn’t be surprised if the idea was at least floated (probably without success, given the current GOP jihad against Disney), particularly given what’s happened to poor Winnie-the-Pooh.

As a writer and musician I’m a fan of copyright. The basic idea is that allowing the producers of art to have a monopoly on its sale and distribution incentivizes the creation of more art. But there’s always been a question of how much copyright is too much and when works should move into the public domain and be free for adaptation by others. The Copyright Act of 1790 established a 14-year copyright term, renewable for another 14 years, but those terms were doubled in the 19th century. Then between 1976 and 1998 (when The Mouse roared) terms ballooned to the current life of the author plus 70 years or 120 years if a it was created by a corporation. So in the brief life of the United States we’ve gone from copyright that expired while the creator was not only still living but probably still creating to a term that runs for decades.

Weird things happen when copyright terms run so long that they outstrip the lives of the work’s creators. Recently there’s been controversy about changes to books by the likes of Roald Dahl and Agatha Christie to better reflect modern sensibilities (I talked a bit about the issue here). What’s interesting is that both authors made such changes in their lifetimes, presumably without much fuss. What makes it seem wrong now is that it’s not the authors making the changes but their current copyright holders, who didn’t create a thing. Without lengthy copyright terms that extend beyond the lives of those authors this wouldn’t be an issue – anybody who wanted to could publish the original versions or whatever bowdlerized versions they wanted.

Thanks to this in-depth video, I recently learned about another problematic case of long-term copyright. Remember “Down Under,” by Men at Work? Particularly the flute riff that repeats several times during the song? 

Released in 1981 it was a huge international hit, hitting number one in the US and UK. It wasn’t until 2007 when a TV quiz show noticed that part of the flute part matches almost perfectly the melody of “Kookaburra Sits in the Old Gumtree,” a popular Australian song. After the show aired, people called the company that held the copyright to “Kookaburra” about the similarities, resulting in a lawsuit against Men at Work and their record company for infringement. The company won, a result which Colin Hay has suggested helped speed flautist Greg Ham’s depression and death (Ham played the famous riff, but wasn’t actually one of the listed songwriters).

What makes the “Down Under” story so concerning is that this wasn’t a situation of the writer of “Kookaburra” herself, or even her descendants, making the claim, it was a company that bought the rights at auction after her death. It was purely a commercial maneuver and could not have contributed in any way to encouraging the writer to create more art (her being dead, after all). And while the riff has become fairly iconic, it’s hardly essential to the song, providing a little bit of extra flavor in the arrangement.

Questions on the persistence of copyright always bring me back to Spider Robinson’s Hugo-award winning story “Melancholy Elephants.” It’s that rarest of beasts, a sci-fi story about the law. In this case, it’s about a proposed law that would extend copyrights indefinitely, and the widow of a famous composer beseeches a legislator to not pass the bill – even though it would financially benefit her. She makes the point that there are only so many combinations of notes, rhythms and such out there (echolyn’s “Suite for the Everyman” covers this with sections titled “Only Twelve” and “Twelve’s Enough,” respectively) and if they’re all placed off limits for future composers people will eventually stop making new music.

The same is true for stories, whether they’re written in books or told on screens. New writers often worry about sharing ideas for stories, unaware that pretty much no “idea” is new. What makes a story worth writing is what you want to say with it, not what others have already said. Not only has Romeo and Juliet given birth to adaptations as diverse as West Side Story, a ballet, and a Dire Straits song (which produced its own amazing Indigo Girls cover!) – it was based on a history of similar stories dating back centuries. The idea of Romeo and Juliet was not new – Shakespeare’s presentation of it was.

It was Picasso who said “good artists borrow, great artists steal” – and even that wasn’t an original thought. That’s probably a bit flippant, but the core of it is true. Every creative person is the sum of their influences, the things they’ve read, heard, or seen. Placing those things eternally off limits will do more to stifle that kind of creativity than it will to encourage creators to create in the first place. Killing off creative endeavors altogether is probably too high a price to pay for some author’s grandchildren being able to live of their book sales.

As in nearly all things, balance is key. It’s just that I’m not sure we’re particularly well balanced at the moment.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s