Sonny Bono Copyright Extension Is Legal
In January, 2003, the U.S. Supreme Court affirmed that Congress had the right to increase the duration of Copyrights within the United States, making U.S. laws endure longer than in any other nation.
Throughout most of the 20th century the rest of the world generally had longer terms than the U.S. Originally it was “lifetime of the author plus 50 years” and in more recent times the 50 years survivor benefits were increased to 70 years. Until the 1970’s the term in the U.S. was 28 years with an optional second 28 terms if you renewed the Copyright.
Starting in the 1980’s we finally hooked up with the Berne Convention Treaty, the most widely used international agreement. That treaty still extends the copyrights only to 70 after death, but in view of the U.S. lead they may eventually up the term.
As of right now within the United States any registered copyright that is published endures for the lifetime of the author plus 90 years for their families after death (in the case of multiple creators or authors the last living person is the only one who counts under both the Berne Treaty and U.S. law). In the case of corporations and fictitious names the term is 90 years or a maximum of 120 years after the proven date of creation, whichever expires first. This means that if a company own a book, script or piece of music that is not published for 40 years it is only afforded protection for 80 years after publication, because it was created 40 years before first published use.
There are a lot of pros and cons over this law. While schools are generally exempt from many provisions of the copyright laws in the U.S. no school has ever tried to copy a work protected under the law and distribute this to students on a regular basis. As such schools must buy generally more expensive books for English and History as those works in copyright generally cost more to obtain. If, for example, a school had to pay to use “A Tale Of Two Cities” it could cost them more to put this into an English text book. The works of Charles Dickens, William Shakespeare, Edgar Allen Poe and Jules Verne are, of course, no longer protected. They are said to be in the Public Domain (PD).
This is why so many schools use folk music, old poetry and stories in their English courses, because the contemporary masters often cost too much to obtain. This makes difficult, but no impossible, to study the works of Walt Disney (the first Mickey Mouse cartoon was due to fall out of copyright), Buster Keaton, Charlie Chaplin, the music of Gershwin and other creative people working in the start of the 20th century.
When print or film works become PD college professors often incorporate them into their text books as examples of writing, history or social studies. For works in copyright hefty licensing fees must be paid to use these works, making the price of the materials so high that schools on tight budget simply won’t obtain them and as a result children are taught with 100 or 200 year old materials.
Right now, for example, it is almost impossible to legally obtain some Walt Disney, M-G-M or Warner Brothers classic cartoons and films as there is no legal distributor. When one is found they often charge up to $50 to rent a 16mm film and they don’t sell these to anyone at any price. Video compilations are not always available so basically the extension of the copyright law actually prevents people from readily seeing and enjoying these harder to find works.
When films fall into the public domain they become readily available to collectors and teachers. Companies like Em Gee Film Library in Reseda, California buy copies at modest costs (generally about $125 per print) and then rent these to schools for as little as $7.50. They also sell prints for the same $125 and make video compilations of hard to find older materials.
The same applies to music and book publishers who can put together collections of materials and sell them basically at twice printing costs. When the materials are in copyright they must add the license fee to the final cost and then double this price!
None of these works that were due to fall into PD will be seen or obtained to any degree until after the year 2021, unless, of course, Congress decides to extend them even further, which they might and the Supreme Court decision has clearly allowed for this to happen.
The funny thing is that some of the people pushing hard to make the law endure longer will also lose from this extension. I recently helped Fox obtain a PD print of “The Fatal Glass Of Beer” by W.C. Fields for their TV series Space Above and Beyond. The reason they wanted PD material boils down to cost. The amount they used cost them about $500 to obtain. One producer who called me a few years back was frantically looking for some color PD cartoons to use and told me how Taft Entertainment, who owns the Hanna-Barbera collection, wanted $10,000 to license one minute of color cartoon. The classic children’s show Pee Wee’s Playhouse used to obtain a lot of PD cartoons for use on the show, because their budget was quite low. Marvel Productions also used a lot of PD footage in their early TV cartoon shows like Spiderman. Universal Studio Tours also obtained many PD films for their Special Effects exhibit. More recently GRB Entertainment used PD footage in the starting years of their Master’s Of Illusion series on special effects. The extension of the copyright law now limits their access to more contemporary materials.
Copyrights don’t always work in the best interest of the public either. It allows those who have made questionable product to legally hide these elements away from the public. Films books and music that are no longer Politically Correct such as “Coal Black and de Sebben Dwarfs” are locked away in vaults so they can’t be used as examples of racially biased portrayals until the year 2040 and by then no materials may exist for public viewing after it becomes PD, which means that the copyright laws can aid in “re-writing” history or least burying it so far that only hearsay or rumor will document actual events.
Having worked on both sides of the equation I’m not exactly sure where I stand on this issue. I’ve made money of copyrighted works. I’ve made money off PD works. The big worry is how the powerful corporate owners of copyrighted works can keep upping the antie so that others can’t play in the big game. While I’m not totally opposed to the copyright extension, I think next time they do this type of extension that a clause making only those items in active distribution included in the extension, thus allowing those items hidden away to fall into PD within a short time unless they put them back into distribution. This way, at least, we can get some of the more important materials out of those dingy secret vaults and see them again as a living proof of history.
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