(The Return of) Ignatz, by Sam Heldman

Friday, January 24, 2003

One more thought about long copyrights, and then I will stop pretending that I really know what I'm talking about.

I know that, to a large degree, the Eldred crowd's fixation on Mickey Mouse is largely a matter of rhetoric and politics. Now, sure, I can get on board with that as a matter of rhetoric and politics: I'm all in favor of sticking it to The Man, and sometimes Disney Inc. seems to be The Man. But often it seems to go way beyond that; it seems that the Eldred crowd often want to convince us that the world would in fact be materially better if Mickey lapsed into the public domain, that this would allow the flowering of a whole variety of low-cost, high-creativity, Mickey-derivatives that are (a) so cool that Disney would never allow them as long as it holds a valid copyright in the essence of Mickey; and (b) yet not allowable under current copyright law as "fair use" (e.g., parody). It's conceivable that this is true, and I was wondering how to test it empirically.

So I thought, well, I'll do some digging around to make comparisons as between Tarzan and Conan. Tarzan, having been created in the 1910s, ought to be in the public domain, which is not to say that you can freely copy a newly-copyrighted Tarzan movie, but you ought to be able to make your own Tarzan movie without the permission of the estate of Edgar Rice Burroughs. And Conan, having been created in the 1930s, is probably not in the public domain. So, I thought, if I could prove that paperbacks of all the old Conan books are about as cheap as paperbacks of the old Tarzan books, and that there has been no flowering of cool new takes on Tarzan now that he's out from under the thumb of The Man, then this would support my view that the length of the term of copyright is not a particularly important thing to worry about; more important would be to precisely define, and perhaps alter, what rights are included in the copyright, and to whom they belong.

But here's what I found: it's pretty damn hard to satisfy yourself, with a little googling, that Tarzan is in the public domain and that Conan's not. It's pretty clear that Tarzan is (though ERB Inc. still does its best to convey the impression that all licensing must be done through it, presumably with a payment of $), but the copyright status of Conan is not at all clear; you can find whole webpages devoted to intricate analyses of which Conan stories lapsed into the pd when somebody forgot to renew the copyright, and which ones didn't.

There is a somewhat similar problem with respect to old music recordings from the 1920s and 30s: nobody to whom I've talked is really confident about whether such recordings are in the public domain. There's some concern, on some people's part, that perhaps the law of some state or another might still be providing some protection for some old recordings; the federal copyright law does not apply. Most people who are interested in reissuing such recordings, either on CD or on the web, seem to have reasonably taken the view "I won't worry about it; many of the old labels are out of business, and Columbia certainly won't sue me because they don't want to lose."

But I think that it would be much better for the free flow of public domain creativity if the Eldred crowd would put their energies into trying to bring clarity to the copyright status of old works, than in worrying about the length of the term. I see on Lessig's blog that he is in fact working on this issue, and has a particular proposal about it, and I applaud that effort even while I am otherwise skeptical of the "information wants to be free/copyright term must be shortened" movement.

posted by sam 1:56 PM 0 comments


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