Copy Catfight

Reason, March, 2000 by Jesse Walker

The irony was rich: Disney, which draws heavily on public-domain characters and stories in its own products (Aladdin, the Little Mermaid, Mulan), was fighting to keep the cultural commons closed. And Dylan regularly bases his work on the chord structures, and sometimes lyrics, of older folk songs--"The Girl from the North Country" on "Scarborough Fair," "I Dreamed I Saw St. Augustine" on "I Dreamed I Saw Joe Hill Last Night." Yet there he was, demanding royalties from his music until 70 years after his death.

Meanwhile, the Gershwin heirs, who didn't even write the songs that keep them wealthy today, found themselves essentially arguing that the 20-year extension would somehow be a further incentive to their dead ancestors' creativity, a claim that smacks of either spiritualism or desperation.

"It's a joke," declares David Post, a professor of law at Temple University. "It's a disgrace. There is no better example that I can imagine, literally, of Congress caving in to small, highly focused special interests. There is no conceivable public benefit from the additional 20 years. Zero." Copyrights don't bother Post, but retroactive extensions of them, which by definition cannot affect the original creator's incentives, do. "Congress was bought," he continues. "This was the sale of legislation in the crudest form. They should be ashamed."

If the Bono bill's intended consequences are bad, its unintended effects are arguably worse. When it's unclear who owns a copyright--for an old B movie, say, or a cult writer's early short stories, or an ancient R&B record--that discourages companies from reissuing the work, even if there's considerable interest in reviving it. The potential legal hassle is simply too daunting.

Last October, the U.S. District Court for the District of Columbia rejected a suit alleging the Bono bill was unconstitutional; the plaintiffs have appealed the case, and it should be heard again by next August. One plaintiff, 56-year-old Eric Eldred of East Derry, New Hampshire, operates Eldritch Press, a popular Web site filled with digitized editions of old volumes, ranging from H.L. Mencken's In Defense of Women to books about boats. "I'm not interested in putting up works by Stephen King," he says. "I'm interested in books that are down a couple of tiers books that are interesting, but that publishers don't find profitable to reprint." The new law threw some roadblocks in his way.

Consider Horses and Men, a 1923 collection of short stories by Sherwood Anderson. The book has long been out of print; the rights to it are owned by the Sherwood Anderson Trust, which makes money by putting out scholarly editions of Anderson's work. Many of the stories in Horses and Men will not be reprinted in any of their Anderson anthologies, and those that are will often have the punctuation "corrected" to reflect modem usage. Eldred would like to put the original book up on his Web site, so people can read the out-of-print tales and so they can compare Anderson's original punctuation to the new version. He expected the book to pass into the public domain in 1998, allowing him to do just that. But thanks to the Bono bill, the copyright won't expire for another 20 years.