Sam Heldman says he favored the Supreme Court’s decision in Eldred because the movie Shrek’s “soundtrack included John Cale’s version of Leonard Cohen’s song “Hallelujah”:
I think it’s great and even important that Leonard Cohen get a lot of money for writing such a song, whether it’s used in a movie 15 or 50 or even somewhat more years after he wrote it.
I’ve got a lot of respect for Sam Heldman, but I think he’s wrong on this one. I think the more important issue is: does Leonard Cohen get to choose whether his song will be used in Shrek (or to sell cars, or whatever) or not?
Probably Cohen does get to choose, because he’s one of the lucky successful ones. But tens of thousands of musicians and (to move to a subject near and dear to my heart) cartoonists don’t get to choose, because early in their careers, when their negotiating positions were weak, they sold those rights to major corporations. In fact, it’s the worse of all worlds – they don’t get to choose, they don’t get money for it, and they don’t even get to record their own songs or use their own characters in new work without the copyright owner’s permission. And thanks to the ridiculously extended copyright laws, they can count on dying of old age before they ever get the right to use their creations again.
The Sonny Bono Copyright Act wasn’t about making sure Leonard Cohen gets a fair cut of Shrek; it’s about making sure Michael Eisner, a non-artist who didn’t create Mickey, didn’t draw Mickey, and has never written a Mickey cartoon in his life, continues to get his unfair, unearned share of Mickey. As I wrote about Superman’s creators, back in August:
Jerry Siegel and Joe Shuster might have been better off had Superman never been copyrighted – at least they would have had the right to continue making Superman comics and selling Superman drawings into old age. (As it is, they ended up penniless, until bad publicity convinced Superman’s owner to give them pensions). The in-practice effect of copyright – and of the overwhelming imbalance of power between a young creator and a huge publisher – is protection of the publisher’s interests, not the creator’s.
It’s great that Cohen gets money for Shrek – but there’s no such thing as a free lunch, and I think what we lose by giving Cohen a never-ending copyright is more important than what we gain. For musicians less successful than Cohen, the result of copyright can easily mean keeping their life works out of print and out of circulation, making them less money than they could have made otherwise (decades-old work that might make enough money for an individual musician to keep in print and sell on a personal website, might not make enough money for a major label to bother keeping in print).
In short, it’s not at all clear, as Sam implies, that artists are – when all is accounted for – the overall beneficiaries of ridiculously extended copyright laws. Almost every artist I know who has an opinion disagreed with the Court in Eldred; either all the artists I know are self-destructive (a real possibility), or they can recognize that the current laws aren’t in their self-interest.
Update: Sam replies here, and makes a very good case that my objections could be fairly addressed without shortening copyright terms.
