Why Batman and Rhapsody in Blue should be in the public domain, but aren’t

If you’re in favor of copyright extensions – and aren’t a corporation holding the rights or a descendent of the original author – you probably need some sense knocked into you. Flickr, CC BY-NC-SA

In 1998, if Congress hadn’t extended copyrights by 20 years, George Gershwin’s Rhapsody in Blue, Hemingway’s The Sun Also Rises and Margaret Mitchell’s Gone with the Wind would all be in the public domain. This year, the comic book characters Superman and Batman would be free to use by anyone. Meanwhile, movies from 1940 – like Charlie Chaplin’s The Great Dictator and John Ford’s The Grapes of Wrath – would have been slated to enter the public domain at the end of 2015.

Instead, all of these works – and tens of thousands more – remain firmly under copyright at least until 2019. Surely, we’ll see another effort by those in the copyright extension camp to lengthen the term yet again.

Why does this matter? Well, how would you feel if you needed to obtain a license from a copyright owner in order to read a passage from the Bible to your church group? Or if before you could ride your bicycle you needed a license from descendants of the inventor of the wheel?

We all take for granted the right to use certain pieces of our cultural heritage, like the Bible. And we’re able to freely use these products because property rights for information – such as patents and copyrights – are constitutionally required to exist for a only limited amount of time. Then they enter the public domain, which means that no one has exclusive rights to control their copying, performance, use, sale, or modification.

Ultimately, extending copyrights prioritizes the desires of special interests (usually corporations or distant descendants of creative authors) over the value to the general public, which could otherwise access materials for lower prices, while being offered a wide range of derivative works.

What’s lost by extending the length of copyright?

Look at the wheel. A great invention, it has served for millennia as the foundation for an abundance of subsequent products. A perpetual property right in the wheel inventor’s name (had there been a patent system back then) would mean that some distant descendant would still control its use and sale. That would obviously be ridiculous, but many have called for perpetual copyright rights.

Of course, it’s important to provide an incentive for creative people to invent things like the wheel – and an exclusive right to exploit serves as that incentive: the inventor reaps his or her reward during a period of time, and thereafter anyone is free to use it and to improve upon it. But tying up the ability of others to use it inevitably hampers further development – all for the sake of benefiting the owner of the exclusive rights.

The same is true for works of authorship protected by copyright. We recognize exclusive rights for authors to give them an opportunity to reap economic rewards from their creative contributions to our culture.

When the copyright expires, the work then becomes available for anyone to republish or reshape. That can mean lifting characters to use as a premise for a new work; just last month it was reported that former NBA star Kareem Abdul-Jabbar would be publishing a book with Mycroft Holmes, the older brother of Sherlock Holmes, as the protagonist.

There have been a number of derivative works based on Sir Arthur Conan Doyle’s Sherlock Holmes series – including an upcoming novel by former NBA star Kareem Abdul-Jabbar. Library of Congress

Sir Arthur Conan Doyle, Jane Austen and Mark Twain may be rolling in their graves over some of the recent derivative works that have been based on their books (such as PD James’ “sequel” to Pride and Prejudice, Death Comes to Pemberley). But this is how both our technology and our culture progress.

The free market and current writers and inventors – rather than distant descendants of earlier authors – are better determinants of what kinds of new works based on our cultural heritage are made and distributed. Sure, this will inevitably lead to cheap knock-offs; but it also allows for the addition of some outstanding new derivative works.

The entrance of Frances Hodgson Burnett’s The Secret Garden into the public domain resulted in an explosion of new book, film, and stage versions – even cookbooks. Although Disney strongly pushed the term extension to protect its copyright on Mickey Mouse, the mega media corporation’s reliance on public domain stories is well known. What if Victor Hugo’s Hunchback of Notre Dame were still under copyright when Disney made its movie? Hugo’s heirs denounced the film as a “commercial pillage of heritage.” Would those heirs have licensed without also demanding editorial control? No one can say, but Disney was able to produce the film for public consumption without any interference, because no license was necessary.

Because it’s in the public domain, Victor Hugo’s The Hunchback of Notre Dame has been re-purposed into live action and animated films. Wikimedia Commons

If the public loses, who wins?

Nearly everyone sees the need to allow improvement on creative technological inventions, so the term of patent protection is relatively short (now 20 years from the date an application is filed). The term of copyright, however, is another story.

While in 1790 it was only 14 years (renewable for another 14 years if the author was still alive), this span has steadily increased. An additional 20 years were added to the term in 1998, making it 95 years for works created before 1978 and all works “authored” by corporations. For works of human authorship created after 1977, the copyright was extended to 70 years after the death of the author.

Copyright is a creature of statute, so Congress – through legislation – establishes the rules, subject only to constitutional constraints. When Congress increased the term from 56 years to life-plus-50 years in 1978, it argued that this would allow the U.S. to join the Berne Convention –- the major international treaty on copyright.

But why did Congress increase the term again just 20 years later?

It had nothing to do with current or aspiring authors (had that been the case we would have given the extended term only to new works). Instead, corporate owners of valuable copyrights, such as Disney’s interest in Mickey Mouse and Winnie the Pooh, and descendants of authors, like the Gershwin Family Trust, saw the imminent possibility that some of their royalty stream would dry up. They could afford to lobby heavily and they did, successfully keeping the congressional proceedings under the radar until the legislation passed.

The family of composer George Gershwin – the wealthiest composer of all time – has a vested interest in retaining the rights to his body of work. Wikimedia Commons

This is far from a zero sum game: the general public lost vastly more than the special interests gained. But the politics are such that concentrated interests have the lobbying power.

Those in favor of extension argued that it was necessary to “harmonize” our term with the European Union’s. In reality, old works like Gershwin’s Rhapsody in Blue and characters like Mickey Mouse slated to enter the public domain were the only works supporters were interested in. Plus, how can Gershwin’s work be harmonized if it’s already in the public domain almost everywhere in the world except the United States?

Some other (bogus) reasons cited: a desire to provide for “two generations of descendants” (which fails to explain why a corporation like Disney needed an extension), and a means to further incentivize authors (would John Grisham stop writing books if the copyright would expire 50 years after his death, rather than 70?). Supporters also cited longer life spans as a reason for extending. But as Justice Breyer pointed out in his dissent, longer life spans automatically increase the span of the copyright under a life-plus-50-year term.

Not surprisingly, greed is a factor. If George Gershwin’s grand-nephews and other distant descendants want a continuing stream of royalty income, they ought to write some music themselves.

I, for one, would gladly recognize that copyright. (Listening to their music, however, would be another matter).