Tag Archives: public domain

Our world: the Beatles can get $250k for the use of an original recording on a TV show

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I’ve seen/heard several discussions of the use of the Beatles song “Tomorrow Never Knows” to close the most recent episode of Mad Men. Here is some of the story behind how the show was able to get permission to use the song – for $250,000:

 “It was always my feeling that the show lacked a certain authenticity because we never could have an actual master recording of the Beatles performing,” Matthew Weiner, the creator and show runner of “Mad Men,” said in a telephone interview on Monday. “Not just someone singing their song or a version of their song, but them, doing a song in the show. It always felt to me like a flaw. Because they are the band, probably, of the 20th century.”…

Near the end of the “Mad Men” episode, titled “Lady Lazarus” and written by Mr. Weiner, the advertising executive Don Draper (played by Jon Hamm) finds himself struggling to understand youth culture and is given a copy of the Beatles album “Revolver,” a new release in the summer of 1966.

But instead of starting his listening experience with the album’s acerbic lead-off track, “Taxman,” Draper instead skips to its final — and, shall we say, more experimental — song, “Tomorrow Never Knows,” contemplating it for a few puzzled moments before he shuts it off. (That psychedelic song, with its signature percussion loops and distorted John Lennon vocals, also plays over the closing credits of the episode.)…

To win the company’s approval in this case, Mr. Weiner said, “I had to do a couple things that I don’t like doing, which is share my story line and share my pages.” He added that he received the approval from Apple Corps last fall, about a month before filming started on the episode.

Several thoughts:

1. Does this show that the Beatles still matter? On one hand, yes: the creator said he wanted to have an authentic Beatles song on his show. On the other hand, this is a show about the 1960s – it is a period piece, a “retro cool” show, not a show about the modern day that would show the current relevance of the Beatles. The creator suggests they are the band of the 20th century, inviting questions about who might be the artist of the 21st century.

2. Contra #1 above, the Beatles can still get $250k for the use of their song. Is this about the greatness of their work or because they have been so tight in who is able to license their music? Are the copyright holders of the Beatles music (some combo of Michael Jackson’s estate and Sony?) simply waiting for McCartney and Starr to die so they can reap a windfall from licensing?

3. The article doesn’t discuss this but the selection of “Tomorrow Never Knows” is particularly interesting. This song would never make it on a Beatles “greatest hits” album (it is not on the 1 album or the Red or Blue albums of the 1970s). It is buried at the end of the Revolver album. At the same time, many books and critics acknowledge that this song is a turning point in the group’s career. It was actually the first recorded song for Revolver, an album noted by many critics as the greatest album (or one of the top 3) of all time. It was a sharp departure from earlier Beatles music: in a few short years, the group had moved from “I Want To Hold Your Hand” to Lennon singing about ideas from The Tibetan Book of the Dead with all sorts of studio effects like backward guitar around him. My guess is that the playing of song means that Don Draper’s is about to take an interesting turn (along with the rest of the 1960s).

4. A question about copyright: will the Beatles music ever become part of the public domain? It would be a shame if it does not.

5. How long until we live in a world when nobody knows about or cares about the Beatles? I’m particularly interested in the changes that will happen when the Baby Boomer generation fades away…

Copyrighting time

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David Kravets at Wired reports on a copyright lawsuit that seems to attempt to enforce a copyright over data about time itself:

The publisher of a database chronicling historical time-zone data [Astrolabe] is claiming copyright ownership of those facts, and is suing two researchers for re-purposing it in a free-to-use database relied on by millions of computers….The researchers’ publicly available database was being hosted on a server at the Maryland-based National Institutes of Health, which apparently has removed the data at the request of Massachusetts-based publishing house, Astrolabe. The publisher markets its programs to astrology buffs “seeking to determine the historical time at any given time in any particular location, world-wide,” and claims ownership to the data in its “AC International Atlas” and “ACS American Atlas” software programs.

Wired posted a copy of Astrolabe’s complaint.  Digging into it a bit, here are the main facts alleged:

9. Defendant [researcher Arthur] Olson’s unauthorized reproduction of the Works have been published at ftp://elsie.nci.nih.gov/tzarchive.qz, where the references to historic international time zone data is replete with references to the fact that the source for this information is, indeed, the ACS Atlas [emphasis added].
10. In connection with his unlawful publication of some and/or any portion of the Works, defendant Olson has wrongly and unlawfully asserted that this information and/or data is “in the public domain,” in violation of the protections afforded by the federal copyright laws.
[11. and 12. The same as 9 and 10, except naming second defendant Paul R. Eggert.]

In other words, based on this complaint, it seems that the researchers simply took facts (e.g., “in 1900, Greenwich Mean Time +3 was defined as the longitude running from…”) and incorporated them into their own database.

If this is true, Astrolabe, as Wired points out,

faces the tough challenge of overcoming a 1991 Supreme Court decision [Feist v. Rural Telephone Service Co.], concerning a company that harvested listings from a phone company’s telephone book and re-published them. The court ruled that “copyright does not extend to facts contained in [a] compilation.”

Unfortunately, I’m guessing that Astrolabe filed this lawsuit simply to scare Olson and Eggert into a quick settlement well before a judge rule on the merits of their claim to use this data under established copyright law.  In part, my surmise is based on the counsel Astrolabe retained.  Their complaint is signed by Julie C. Maloney, an attorney who appears to be a solo practitioner based out of a small town in Cape Cod in Massachusetts.  Although she doesn’t have a law firm website, a bit of Internet searching appears to confirm that land use/zoning rather than intellectual property is her legal specialty.

While I don’t know Ms. Maloney or her professional reputation and am sure she is a capable advocate, these facts don’t suggest that Astrolabe is seeking a discussion on the legal merits of copyright law.  On the contrary, Astrolabe appears (1) primarily concerned with saving money by going with a solo practitioner rather than a bigger law firm, (2) incapable of finding a copyright-specializing attorney willing to take their (weak) case, or (3) both.

Accessing the public domain through JSTOR

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Academic journal archiver JSTOR has just made public domain articles a lot more accessible:

[W]e are making journal content on JSTOR published prior to 1923 in the United States and prior to 1870 elsewhere, freely available to the public for reading and downloading. This includes nearly 500,000 articles from more than 200 journals, representing approximately 6% of the total content on JSTOR.

We are taking this step as part of our continuous effort to provide the widest possible access to the content on JSTOR while ensuring the long-term preservation of this important material.

Mike Masnick over at Techdirt recounts some history that provides context for JSTOR’s decision:

You may recall that following the indictment of Aaron Swartz for downloading some JSTOR papers, a guy named Greg Maxwell decided to upload 33GBs of public domain papers from JSTOR and make them available via The Pirate Bay. He had the papers for a while, but was afraid that he’d get legally harassed for distributing them.

JSTOR explicitly acknowledge this history in its announcement (emphasis added):

I realize that some people may speculate that making the Early Journal Content free to the public today is a direct response to widely-publicized events over the summer involving an individual [Aaron Swartz] who was indicted for downloading a substantial portion of content from JSTOR, allegedly for the purpose of posting it to file sharing sites. While we had been working on releasing the pre-1923/pre-1870 content before the incident took place, it would be inaccurate to say that these events have had no impact on our planning. We considered whether to delay or accelerate this action, largely out of concern that people might draw incorrect conclusions about our motivations. In the end, we decided to press ahead with our plans to make the Early Journal Content available, which we believe is in the best interest of our library and publisher partners, and students, scholars, and researchers everywhere.

Regardless of how this happened, I applaud JSTOR for greatly furthering access to public domain academic journal articles.

H/T Techdirt/Copycense.

Can you hear the people sing?

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Brian pointed me to an article at the Chronicle of Higher Education about Lawrence Golan’s Supreme Court fight against copyright expansion:

The dispute that led to Golan v. Holder dates to 1994, when Congress passed a law that moved vast amounts of material from the public domain back behind the firewall of copyright protection. For conductors like Mr. Golan, that step limited access to canonical 20th-century Russian pieces that had been freely played for years.

Re-copyrighting works isn’t a technical or minor matter.  It has a huge effect of performing musicians like Golan:

When a work is in the public domain—that Puccini opera, say—an orchestra can buy the sheet music. Symphonies typically cost about $150. And the orchestra can keep those pages forever, preserving the instructions that librarians laboriously pencil into scores. But works under copyright are typically available only for rent. And the cost is significantly higher: about $600 for one performance. With the flip of a switch, the new law restored copyright to thousands of pieces.

For big-city orchestras like the New York Philharmonic, that change is like a "mosquito bite," Mr. Golan says. But Mr. Golan’s [University of Denver] ensemble gets only about $4,000 to rent and buy music each year. That means it can perform some copyrighted works but must rely on the public domain for about 80 percent of its repertoire. And $4,000 is relatively generous. Other colleges might have only $500 to spend on music. When the Conductors Guild surveyed its 1,600 members, 70 percent of respondents said they were now priced out of performing pieces previously in the public domain.

As Brian asked in his email pointing me to the article,

it sounds like US courts have always been willing to extend copyright protections…will there ever really be a "public domain" in the future for works published/created after World War I?

Unfortunately, the jury’s still very much out.

The once (and future?) public domain

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According to SCOTUSblog, the Supreme Court has just agreed to hear a major case about the public domain:

The case involves a two-pronged constitutional challenge to a 1994 law, passed by Congress to implement the global agreement on trade in the so-called “Uruguay Round.”   First, the case tests whether the Copyright Clause gives Congress any authority to take a work out of the public domain — that is, to restore its copyright shield once that has expired.  Second, it tests whether the 1994 law at issue violates the free speech rights of those who, before the law was passed, freely performed or distributed works that had entered the public domain — such as Prokofiev’s Peter and the Wolf….The constitutional issues about the Berne Convention’s Article 18 on restoration were pressed in federal court by a group of orchestra conductors, educators, performers, film archivists, and motion picture distributors.  They contended that they have depended for years on public domain works, but were cut off from those opportunities when Congress restored a seemingly large number of U.S. copyrights for foreign works that never previously had U.S. protection.

SCOTUSblog is hosting a number of the related documents:

For a round-up of additional coverage, see:

  • PaidContent:  “Can You Re-Copyright Works That Fall Into Public Hands? High Court To Rule”
  • Patently-O:  “Copyright: Supreme Court to Hear Constitutional Challenge to Copyright Restoration”
  • Wired: “Supreme Court Deciding Whether Congress May Copyright Public Domain Works”

Stay tuned…

Settling the score

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Daniel J. Wakin over at the New York Times has a write-up about Edward W. Guo and the International Music Score Library Project (IMSLP):

The site, the International Music Score Library Project, has trod in the footsteps of Google Books and Project Gutenberg and grown to be one of the largest sources of scores anywhere. It claims to have 85,000 scores, or parts for nearly 35,000 works, with several thousand being added every month. That is a worrisome pace for traditional music publishers, whose bread and butter comes from renting and selling scores in expensive editions backed by the latest scholarship. More than a business threat, the site has raised messy copyright issues and drawn the ire of established publishers.

Has it ever.  Apparently, all this free music sharing of hundreds-of-years-old music is not putting money in the right people’s pockets:

While a boon to garret-living, financially struggling young musicians, the library has caught the attention of music publishers.

Take that, struggling musicians!  Music publishers are feeling the heat!  Though, really, it’s only going to hurt all of you in the end:

“I don’t know if I would call it a threat, but I do believe it hurts sales,” said Ed Matthew, a senior promotion manager at G. Schirmer in New York. “It is that profit that helps us to continue to bring out more composers’ work.”

Wait…what?  It is the profit from selling/renting sheet music composed by long-dead composers like Beethoven at above-market prices that allows the G. Schirmer company “to bring out more composers’ work”?  Insofar as this even makes sense, they can only mean one of two things:

1.  Traditional music publishers can only continue to publish public domain scores if they can continue to sell it at monopoly prices (e.g., $30-50 for “[a] set of parts for a mainstream string quartet”, according to the NYTimes article).

Analysis:  Good riddance.  IMSLP will publish it for free.  Deadweight loss triange:  gone.

2.  Traditional music publishers can only afford to take a bath on contemporary composers if it can subsidize them with profits from public domain scores of dead composers.

Analysis:  Whatever this is, it’s not a business argument.  There are plenty of reasons to support new composers (and musicians generally) that have nothing to do with business, of course.  One may think that the arts are intrinsically valuable, or may want to give back/pay it forward, or may simply want the prestige of having one’s name connected rising talent as a “patron”.  All fair enough.  But there’s no business reason for a traditional music publisher to subsidize new talent with monopoly money.  Why should it do that?  It would make much more money if it simply sold the old public domain stuff and told new composers to take a hike.  (Unless, of course, it does make money off the new composers….)

You can’t have it both ways, G. Schirmer.  Either you do make money off new composers (in which case the issue is completely unrelated to your publication of public domain scores) or you don’t.  If you don’t, you have been running a charity, not a business.

I should point out that if G. Schirmer (or any other traditional music publisher) has been effectively running a charity for new composers up until now, I thank them.  Seriously.  This was very kind of them and the sort of thing that should be encouraged.

I hasten to add, however, that just because a music publisher may have used some of its profits to support the arts doesn’t mean that they should be able to assert legal rights they don’t have to public domain musical scores just because the Internet is threatening their traditional business model.  The arts can be supported much more directly and efficiently.  There’s no need to expand copyright law to allow a revenue stream to continue flowing into the publisher’s pockets that a trickle may eventually find its way into the tip jar of the up-and-coming composer.

Update 2/27/2011: TechDirt selected my comment summarizing this post as an “Editor’s Choice” in their comments-of-the-week wrap-up!

A $4000 mistake

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Talk about turning lemons into lemonade.  A Canadian-based copywriting firm is attempting to parlay a very expensive mistake into favorable publicity:

“Like many other creative types in the web industry, our copywriters were not clear on image copyright laws, and we were taught an expensive lesson,” said Rick Sloboda, Senior Web Copywriter at Webcopyplus, which provides designers and businesses optimized web content. “We’re sharing our story, so others can learn from our experience and avoid the same mistake.”

In May, 2010, with the assumption Web images without copyright notices were “public domain” and free to use, a Webcopyplus copywriter used Google images to find an unmarked 400 x 300 pixel scenic photo to complement an article for a tourism client’s blog.

Webcopyplus has posted additional details on their blog, as well as some resources for obtaining stock photography in a way that won’t get one sued (including Creative Commons photos available via Flickr).