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Should Shakespear have gotten royalties for "West Side Story," since it was based on "Romeo and Juliet"? Or what about "Jesus Christ Superstar"? Did the Apostles lose out because the New Testament was not under the protection of the United States copyright laws?
These are extreme examples. But just how long should works of art be kept under copyright protection? That is the question at the heart of the latest effort to extend the copyright law.
Protecting the rights of artists and their heirs was certainly the intent of the Founding Fathers, who included the notion of copyright in the Constitution. But they were also mindful of the need to allow the public free access to works of art and literature. As a result, the Constitution specifies that copyright protection is to last only "for limited times." When the protection runs its course, the works can be used without permission or payment.
But this is not how things have happened. In recent years, an extension of the copyright law has kept precious cultural icons, among them Mickey Mouse and the songs of George and Ira Gershwin, in private hands well past their copyrights' original expiration dates. Now many of these works, products of the modernist 1920's, during which the United States saw a rich cultural flowering, are due to enter the public domain unless Congress passes a pending bill to extend the copyright term again.
At stake are millions of dollars in revenues for corporations like Disney, for the Gershwin Family Trust and for the heirs of smaller estates like that of Thelonious Monk. Also at stake are the right of scholars to have free use of archival materials and the right of artists to recycle cultural icons into new works of art.
A growing number of academics and legal experts are saying that the copyright renewals are a violation of the Constitution. "The copyright extension bill is a rotten idea for the American people," said Dennis Karjala, a professor of intellectual property law at Arizona State University and a leader of the opposition to extension. "We already paid 19 years more than we should in royalties on these works," he said pointing out that the current law is an extension of the previous law.
Under present law, a work of art is protected for the lifetime of the artist plus 50 years. Works copyrighted before 1978 or copyrighted by corporations, like many Disney cartoon, are protected for 75 years from the date of the original copyright. Thus, for instance, Micky Mouse, copyrighted by Disney in 1928, is scheduled to go into the public domain in the year 2004. The copyright extension bill, which passed the House of Representatives this week, would add 20 years to the present law. The Senate has not acted.
"I've spent my entire life waiting for the expiration of the current copyright law," said William J. Maher, president of the Society of American Archivists, who organization represents scholars who often depend on using copyrighted material in their writing. "And I don't want to spend the second half still waiting."
The proposed extension would come just when digital technology, the Internet and the expansion of cable television have made old movies, cartoon characters and songs more valuable than ever. The commercial value of the five major Disney characters, Goofy, Micky Mouse, Minnie, Pluto and Donald Duck, is so great, said Jessica Reif, an analyst for Merrill Lynch, "that you can't even put a figure on it."
"Just at the merchandising level," she continued, "the characters are enjoying a 20 percent increase in value each year. But they have so much value to the corporation other than street sales, in terms of logos, brand recognition."
Fifteen years ago, the license fee for using a Gershwin song in a television commercial for one year could be $45,000 to $75,000. The same song might now go for $200,000 to $250,000.
"As a songwriter, I'm about to become a grandmother for the first time," said Marilyn Bergman, president of the American Society of Composers, Authors and Publishers and the co- author of "The Way We Were" and "The Windows of Your Mind." "Why can't I pass on the fruit of my works to my grandchild? My songs, like my house and other valuables? This is a property issue," Ms. Bergman said.
Marc G. Gershwin, a nephew of George and Ira Gershwin and a co-trustee of the Gershwin Family Trust, said: "The monetary part is important, but if works of art are in the public domain, you can take them and do whatever you want with them. For instance, we've always licensed 'Porgy and Bess' for the stage performance only with a black cast and chorus. That could be debased. Or someone could turn 'Porgy and Bess' into rap music." Indeed, that is just the issue, say critics of copyright extension who argue that constant renewals of the copyright law stifle artistic innovation, the creation of new works based on the old.
Thomas Nast created Santa Claus from a skinny figure that was in the public domain. Nast also created Uncle Sam. If Uncle Sam were still under copyright protection, Dennis Karjala notes, the United States Government would have to pay royalties to use the figure on posters for Army recruitment. In fact, the Government might never have adopted Uncle Sam as a symbol.
The issue of copyright extension is also of particular concern to scholars who want the right to quote freely from copyrighted archival materials and letters. In 1988, a biography of J.D. Salinger by Ian Hamilton was virtually gutted when the Supreme Court upheld Mr. Salinger's right to deny permission for Mr. Hamilton to quote from his writings in the book. The poet Ted Hughes has controlled biographies of his late wife, Sylvia Plath, by denying authors permission to quote from her writings.
When Mary Burgan, general secretary of the American Association of University Professors, wrote, "Illness, Gender and Writing" in 1994, she had to pay $600 to the estate of Katherine Mansfield for permission to quote from Mansfield's writings, she said. "It seemed high at that time," she said recently. "To have the notion that it would be extended another 20 years seems too much. How would scholars like myself continue to write? We're already prevented from duplicating poetry and short stories for teaching." Ms. Burgan was referring to copyright bans on making photocopies of teaching materials for students, a practice that deprives authors of royalties. In the past, educators have argued that works should be available to students free when the purpose is to teach. "We're very leery about the long-term control of ideas and images," Ms. Burgan said.
But the tendency over the years has been for copyright laws to be extended. The first copyright law, in 1790, guaranteed copyright protection for 14 years from the publication of a work, and copyright could be renewed for another 14 years. In 1831, the initial terms of the 1790 law were extended to 28 years, renewable for 14 years.
In 1909, the copyright law was rewritten, with an initial term of 28 years, renewable for 28 years. That law in turn was replaced by the 1976 law, which added 19 years to the renewable period of existing works, making the renewable period 47 years, for a total copyright of 75 years. Works published after 1976 were copyrighted for the life of the author, plus 50 years, and if the copyright was held by a corporation, for 75 years total.
"We're living in a bitterly competitive global market," said Jack Valenti, president of the Motion Picture Association of America. "If we don't extend the laws, when American works go into the public domain, the Europeans will pay nothing for them". He was echoing the concern of other supporters of an extension who say the American balance of trade could be adversely affected. Many people think some version of the proposed bill will eventually pass.
That's troubling to opponents. "As the result of corporate strong-arming, everyone from schoolchildren to academics can't use these works freely," Mr. Karjala said. "It's David versus Goliath, and David doesn't have a sling."