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It's easy to see why. The article states that a nationwide license for a single Gershwin song for use in advertising has risen from $45,000 - $75,000 15 years ago to $200,000 - $250,000 today. An extra 20 years of copyright protection for these songs can therefore mean an additional $4,000,000 to $5,000,000 for each song for the Gershwin family trust! The article does not say how many songs are in the Gershwin repertoire, but it does say that the Walter Donaldson collection exceeds 600 titles. It does not take the proverbial rocket scientist to see that huge amounts of money are involved. Of course, if the current term is extended by 20 years, these extra royalties will come on top of the 19 years of additional royalties that were afforded to these heirs in 1976, at the time of the previous term extension. When Gershwin, Donaldson, and the rest from this era were writing their music, the copyright term was a maximum of 56 years. These heirs have already enjoyed huge royalties for an extra 19 years, but they are insatiable and want still more!
It is against such intense and focussed lobbying that opponent of term extension must fight. The supporters of extension have money and are willing to spend it to protect their royalty flows. They are happy to use Stephen Foster songs freely, but Gershwin must forever remain their private property instead of a major piece of American's common cultural heritage.
I have written a letter to the Wall Street Journal
commenting in slightly more detail about Mr. Fialka's failure to mention
the substantial opposition to copyright term extension in the educational,
archival, library, and related fields, and about his failure to see how
the proponents' use of secrecy and stealth has essentially gulled him and
most other media representatives (not to mention Congress) into thinking
that term extension is noncontroversial. I do not know whether the
Journal will publish the letter, so I include it below.
(612) 625-3084 (direct line)
(612) 625-2011 (fax)
The Wall Street Journal
200 Liberty Street
New York, N.Y. 10281
The article by John J. Fialka in the October 30, 1997, edition of the Wall Street Journalseriously misrepresents copyright term extension as a mere spoils fight between the heirs of great songwriters from an earlier era and restaurant owners who are holding copyright term extension "hostage" in order to obtain special copyright dispensations for themselves. Both of these groups are interested solely in feathering their own beds, ignoring the public interest in a vibrant public domain that permits current authors to create new works based on a rich cultural heritage. Mr. Fialka's article fails even to mention the substantial opposition to copyright term extension in the educational, archival, library, and research communities. It is my understanding that Mr. Fialka attended hearings in June held by the House Judiciary Subcommittee on Courts and Intellectual Property in which he heard little opposition to the bills. That was because none of the opposition was invited to, or even informed of, the existence of these hearings, notwithstanding that I personally had requested of Chairman Coble in February that I be permitted to testify at any hearings that were held by his Subcommittee. The approach of the special-interest supporters of this ill-advised legislation is to orchestrate the appearance of noncontroversiality, riding roughshod over the public interest in the process.
The proposed legislation is no more than a welfare measure for the benefit of those persons who own copyrights on old works--a wealth transfer imposed on the American public for the benefit of large corporations (like Disney, whose copyright on Mickey Mouse has only a decade or so to run) and descendants of creative authors like George Gershwin or Oscar Hammerstein II. Schools that wish to publicly perform plays and music, archivists who wish to restore lost or forgotten works, scholars and creative artists who wish to use these cultural building blocks in creating new works, and the U.S. public in general through its royalty payments will foot a very heavy bill. New creativity and scholarship will suffer badly and irretrievably.
When George Gershwin was writing his music, the copyright term was for a maximum of 56 years. That term was extended by 19 years in 1976. According to Mr. Fialka's article, a nationwide license for a single Gershwin song went for $45,000 to $75,000 15 years ago and now goes for $200,000 to $250,000. Taking average of the lower end figures, that amounts to $122,500 per year for 19 years--$2,327,500--of extra royalties that have already flowed into the coffers of the Gershwin family trust in those 19 years for a single song. The 20-year copyright term extension would therefore add tens, perhaps hundreds, of millions of dollars to a trust that has already been more than generously rewarded for George Gershwin's wonderful contributions to American culture. Ultimately those dollars are paid by US citizens in the form of higher prices, and in the loss to US citizens of new works that could creatively rely on Gershwin's music but whose potential authors cannot afford the license fees.
George Gershwin and Walter Donaldson are as much a part of the American heritage as Stephen Foster and Mark Twain. Like those great icons, their works, too, should be part of our common cultural heritage that is available to all. Copyright term extension is a bad idea that must be defeated in Congress. That will happen only if public voices are raised, loud and strong, in the public interest.
For more detailed information and arguments against copyright term extension, visit the "Opposing Copyright Extension" web page at <http://www.public.asu.edu/~dkarjala>.
Irving Younger Visiting Professor of Law
[University of Minnesota Law School]