(Crossposted on “Alas” and on “TADA”)
David Post writes:
The National Jazz Museum (who knew there was such a thing?) has apparently acquired a true treasure trove of early jazz recordings. The collection — nearly 1,000 discs! — was recorded in the 30s and 40s by William Savory from on-the-air radio broadcasts, and includes performances by Lester Young, Benny Goodman, Coleman Hawkins, Lionel Hampton, Billie Holiday, Teddy Wilson, and many others of the great names of jazz (from the greatest era of jazz). Savory, apparently, is something of a legend in recording engineer circles, and many of the recordings are of stunningly high quality (and many of the performances masterpieces).
If you’re like me, and consider American jazz of the 30s and 40s to be one of the great artistic outpourings of all time, the story induces something like a swoon of ecstatic delight. […]
So needless to say I can’t wait to hear the reissues. But alas, that may never happen. As the original article noted (with additional commentary here), the potential copyright liability that could attach to redistribution of these recordings is so large — and, more importantly, so uncertain — that there may never be a public distribution of the recordings. Tracking down all the parties who may have a copyright interest in these performances, and therefore an entitlement to royalty payments (or to enjoining their distribution), is a monumental, and quite possibly an impossible, task, and it may well be that nobody steps forward with the resources to (a) undertake the efforts required and (b) take on the risk of liability.
In a passage that’s worth reading twice, Post goes on to write:
…copyright, inherently, operates to the detriment of the public when applied in retrospect, to works that have already been created. Lester Young, alas, can no longer be incentivized to produce these performances — they’ve already been created. We won’t get any more brilliant performances by Teddy Wilson if we protect these works. All we — the public — get from applying copyright here is a restriction on our ability to encounter magnificent works of art. Now of course, copyright is only ever applied in retrospect, and if we always ignored it when applied to already-existing works it would cease to exist, and would therefore no longer serve its incentivizing function prospectively.
And there’s your copyright balance; what we seek is a way to give creators enough of an incentive to create, but not too much, because too much gives us, the public, too much of an impediment to actually enjoying the works that have already been created.
Here’s the thing: Most creators need very little incentive to create. Yet our laws pretend that if we don’t have a monopoly extending to decades after our deaths, most creative sorts will hang up our pens and brushes and saxophones and go “oh, heck with this! I’d rather pump gas.”
Music only has value when it is heard. If it can’t find an audience, it’s dead. A copyright regime that kills music is one that needs reform.
There’s a brilliant comic strip, Barnaby, which is – rumor has it — not being reprinted because the creators’ family is unrealistically waiting for someone to offer Peanuts-size royalties. Or maybe they just loathe their father and want to see his legacy of art forgotten. Maybe they’re just used to seeing enormous sums of money from Harold and the Purple Crayon, and so don’t think it’s worthwhile to let their father’s comic strip see daylight, because they have no souls and think art is crap. Or maybe they have other reasons.
But I don’t really care, because they didn’t create Barnaby. They didn’t write it, they didn’t draw it, they have basically no moral right to that work. In particular, they have no right to lock up another person’s creative legacy in a vault, and deprive the reading public of that work.
Keeping a comic strip out of print, when there are plenty of publishers who’d love to print it, is no different from grabbing the Mona Lisa and chucking it into a fire. It’s censorship, and it’s a kind of censorship they’re only able to accomplish because copyright laws irrationally give them that right. I do think there are many situations where the creator of a work has a right to keep it from the public. But why should people who didn’t create the work have that right?
Yes, legally, they’re the heirs. But why should copyright be passed down to heirs at all? Is the thought that if Crockett Johnson hadn’t been able to imagine his heirs keeping his work out of print forever, he never could have motivated himself to draw a daily comic strip at a time when drawing comic strips was admired and extremely rewarding?
How does this situation benefit anyone? How am I, as a cartoonist, encouraged to create new works because I can see that Barnaby is being kept out of print, and because I can imagine my hypothetical future heirs deciding to keep my own work out of print? I don’t think I am.
I think I’m just being robbed as a member of the reading public. And I think Crockett Johnson is being robbed of one of the things that matters most to almost any popular artist — an audience.
Providing an incentive to create is well down the list of reasons why copyright laws exist because you are quite right in writing that most artists need very little incentive to create.
Yet some historic context is due here. As it was, many jazz and blues musicians — notably blacks — received very few or no royalties from their compositions through much of the mid-20th century because of unscrupulous promoters, managers, agents and record company reps. The Lester Youngs and Teddy Wilsons needed the protection of copyright law and while it is unfortunate that most of the National Jazz Museum treasure trove likely will never be reissued, that is a consequence of a necessary and in my view not overly protective law.
There are a number of fine jazz libraries at universities — Rutgers and East Stroudsburg to name two not far from New York City — who with a little seed money might be encourage to undertake copyright searches.
Let’s not give up before we try.
[img]https://www.amptoons.com/blog/wp-content/uploads/2010/08/01aaa-s&d.jpg[/img]
Isn’t this exactly, on a larger scale, what happened to Nina Paley – she found an old record and used it in the soundtrack of Sita Sings the Blues, and then found out halfway through that someone “owned” it and could charge exorbitant amounts of money for her using it.
Even though, in any kind of rational sense, she could only be helping them by encouraging people to look up the artist or songwriter and maybe buy a copy.
But, that makes me think – what if the Jazz Museum did some fundraising for the process of digitizing the recordings, and then distributed them for free?
My view on this is extremely simple.
Copyright is a deal between society and authors. They create stuff for society, and in return society gives them the right to benefit financially more than they could without society’s protection. But with copyright extended infinitely, the stuff never becomes society’s. Thus society is cheated.
One of my friends and I have a huge disagreement over this. He used to be employed to crack Western software and hardware for a Communist country. He must have felt quite guilty, because nowadays he will not pirate anything. And I mean, he goes to ridiculous extents – he got a mix CD from his then girlfriend (80s heavy metal) and he went and spend 200 bucks to make sure that he owns all the songs. Now that she is his wife, she found the CDs (in their shrink wrap, he listens to her CD) and it was awkward.
As for me, I pirate stuff casually. It’s trivial to capture high quality videos from YouTube, and the like, and songs from Internet radio. I drag my wife to rock concerts a few times per month, and never buy T-shirts or CDs anywhere else. Every book I ever wanted to read can be found, scanned and digitized on a dozen Russian/Chinese websites. Mandolin has stories on a Ukrainian (illegal) digital library, if you’ll believe it. Oh, I spent a lot of money on books, but I do not consider it a duty, just a choice. This month I bought the whole ‘Flying castle’ series, and last month I bought 11 ‘Thieves’ world’ hardcovers. I spend hundreds on graphic novels per month, but I read maybe five times as many books/comics as I buy.
I feel absolutely no obligation to pay for art, unless I want to pay the artist, because I think that copyright holders have bribed politician to make the deal with society meaningless, and thus do not deserve the right that society gave them.
Sebastian, are the works you pirate casually covered by copyright extensions, or are they recent works? Because while I can understand, I guess, casually pirating stuff that would be in the public domain by now if not for the Disney copyright extension laws, I don’t understand why being angry about long copyright periods gives you the feeling that you ought not to have to pay for current art.
I don’t feel bad about pirating recent works, but I usually end up paying for them anyway, because I like reading in all comfort, and e-readers are not there yet. As for music, I usually buy the CDs only when the band finally makes it to Southern California or when I am back in France.
That said, I certainly cannot claim that I pay for everything I read or listen to. I think nothing of reading a book on a illegal website, and never paying for it, unless I want to. How do I rationalize it? Well, politicians have sold us out – the contract is broken. Why should I do my part, when the copyright holders do not do theirs, even if the deal was originally fair? It’s not as if the copyright is a natural right (I do not believe in any such) I can get away with not paying, and I do not feel there is a moral obligation to do so.
I give money only if I think it is in my interest to do so. I would like to keep Iron Maiden and the new Accept in business, so I pay them (I flew to New York for an Accept concert, and have done so for Slayer and Scorpions). I want Terry Pratchett to keep writing so I buy his books in hard cover. But I have not paid for any Harry Potter book but the first two, and have not given a damn cent to John Ringo despite having read some of his drivel. (I check pretty much every military SciFi writer, and wish there were more Haldemans and fewer Ringos)
Does it make me a bad person? Maybe. A criminal? Certainly, but I very much doubt I could get in trouble. A hypocrite? I don’t think so.
Try telling a musician who has quit her day job to pursue her dream that the contract is broken. What bullspit!
Yes, the contract is broken. Would you like explain how it is not? Why does she have the right not to have her music reproduced without her consent? By the way, did she pay the creator of every single tune she has ever played?
If I (1) want something, (2) don’t think it is wrong and (3) I can get away with it, I will do it. When it comes to copyright, and I feel perfectly justified to pay or not as I decide. When I do decide to pay, it’s because I think that the artist deserves it. That of course correlates with how much I enjoyed the art.
I think the biggest problem with copyright law is that it lasts WAY TOO LONG. It was pretty reasonable in the 1930s and 1940s for jazz artists to enjoy legal protection on their work. I think it’s ridiculous to suggest that everyone in the world deserves to be paid for their labor, except for artists, because artists “ought” to be doing it for the “right” reasons. A great jazz trumpeter deserves to be paid. A great jazz composer deserves to be paid. The guitarist who performs on Kelly Osbourne’s latest single deserves to be paid, etc.
But the Sonny Bono Copyright Term Extension act of 1998 made already-long copyright protections last a ridiculously long time; currently, works produced in the U.S. last the life of the author plus SEVENTY YEARS. Works created before 1978 last at least 95 years from the date of first publication, or up to 120 years if the work wasn’t published right away. The law is unreasonable. The perfect amount of time for copyright to last is up for debate, but I think “life of the author plus five years” is a lot more reasonable. Right now, it is possible for a person to be born, grow old, live a normal human life span, and die, without ever being exposed to a major work of art because it was suppressed due to copyright.
IMO copyright is a granted right rather than an inherent moral right. Same as with patents, for example. They exists purely for utilitarian purposes. And as such, these laws need to be properly balanced to maximize practical benefit to everyone.
Copyright law as it stands now is certainly far from striking that balance.
As Phil said, part of the issue is simply that copyright lasts too long. What the best length would be is up for debate, but it’s not hard to see that the current length is harmful, and that it is far longer than it needs to be for any demonstrable and frequent benefit.
Frankly, I would love to see some good empirical/historical research done into copyright term lengths and their effects. But that could well be tricky.
That aside, I think it is horrible that children can grow into old age without any of their favorite works from childhood falling into the public domain. It is absurd that a person can live their entire life and never see anything created during their lifetime fall into the public domain. To me this is a sham and a crime. At the very least, copyright should last for significantly less time than a typical person lives in our culture.
And I say this as someone who makes his living as an animator. Like Ampersand, my livelihood depends on this. But reducing copyright terms even to something as small as 10 years would only have a minor impact on me compared to now, either in a motivational sense or a livelihood sense. And something like 20 years would have no meaningful impact at all. I find it absolutely absurd that people seriously talk about copyright terms beyond, say, 40 years. The twisted rationale necessary to justify such lengths is beyond me. There is simply no need, and at those lengths copyright starts to do more harm than good (as the example in the OP anecdotally demonstrates).
I’ve read about this elsewhere. The fact that these works are being prevented from being published because the copyright owners cannot be found does not invalidate the concept of the inheritability of copyright. It seems to me that what’s needed here is some kind of “good faith” rule. If a new work by a deceased creator is found, there needs to be some process wherein one can publish the work if a good faith effort is made that fails to find whether any legitimate owners exist.
A student in my class just presented on Google Books and the lawsuit that spoke about good faith effort in finding copyright holders. Page with settlement agreement
I do believe that copyright needs to exist, but I also thing that 100-years-after-death-of-artist is insane and absurd. Would there really be such a harm if we ratcheted that back to, say, 40 years or death, whichever comes second? That would ensure that the children of an artist would see plenty of benefit, but not their great-great-grandkids. Twilight and Harry Potter would still be protected, and Infinite Jest would still have decades of protection ahead of it, but classic Jazz performances, LOTR, and the works of George Orwell would be free.
There’s a significant difference between extensions of copyright after the creator’s death and copyright during the creator’s life that needs to be noted. Ampersand, you’re correct in saying that most artists need little incentive to create, but they do need the time and resources, and not all of them start off with that. Copyright is one way of giving writers the ability to live off their own work. I want to write, and I will write, but I would write far, far less if I had to work full-time in a completely different profession because my writing was free and I earned nothing from it. (Immediate financial goals being to pay off student loans and trying to secure a comfortable retirement for my parents.) A novel is often a commitment of several years of hard work, with no certainty of payment, or of size of payment. There is an inflated sense of entitlement among many like Sebastian who think they are owed something by the artist, that they have a right to enjoy the fruits of these years of labor without contributing a cent to the artist’s rent or meals or debts.
L.,
I’m certainly in favor of laws which require me to be paid for my own work (and you for your own work) during our lifetime. As far as length of copyright goes, I’d favor something like “ten years after the creators’ death, or the lifetime of the creator, whichever is longer.”
But I’d also want copyright to be significantly weaker than it is today, in some ways. I do think we should have the right to profit from our own work, and from derivative works; I don’t think we should have the right to use copyright to ban derivative works from the market, or to keep collaborative works off the market.
Also, I’m not really worried about piracy in the form of illegal downloads. I think most downloaders spend what they can reasonably budget on media (books, movies, music, etc), and then illegally download what they can’t afford. So most illegal downloading doesn’t represent lost profits for creators.
In other words, when I was a kid, I probably bought an album or two a month, and made three or four illegal copies (on cheap cassette tapes) of my friend’s albums per month. (A cassette tape cost about $2 and could hold two albums or more; a new album cost $12 or so). This system enabled all of us to enjoy much more music than we could have otherwise. But if we couldn’t have copied each other’s albums, the result wouldn’t have been that we all would have bought many more albums, because none of us had that much money. The illegal copies didn’t represent lost sales for the recording artists; they represented the limits of our album-buying budgets. I don’t think that’s changed much today.