Jean Sibelius "created Finnish national identity in music." Asked to characterize their culture, Finns "invariably mention… ‘our Sibelius.’” But just who owns Sibelius? It was a hot legal question this year. The composer died in 1957, but he's as embroiled in our copyright wars as any pop megastar. While Taylor Swift set off one copyright scuffle in 2014, Sibelius set off two.
The first was more a surrender than a fight. Last month the US Trademark and Patent Office canceled his heirs' trademark of the word “Sibelius." They had registered it in 2008, but didn't file proof that they used the trademark in its first six years. So it was canceled automatically in November. (My thanks to Matthew Hintz of Servilla Whitney LLC for clarifying this for me.) Perhaps they hoped that trademarking the family name would preserve some cash flow after the music enters the public domain, as it will in 2027.I don't know how the strategy is faring in Europe, but it foundered this year in the US. In June, a Chicago appeals court slapped back another set of heirs, those of Arthur Conan Doyle, who'd hoped to keep Sherlock Holmes out of the public domain.
The second Sibelius skirmish also took place in November. The Vienna Philharmonic announced that it was "regretfully" dropping the most famous work by Sibelius, "Valse Triste" ("sad waltz"), from its 2015 New Year's Day concert. It had scheduled a performance "to mark the 150th anniversary of the birth of the composer," but changed its program because of the publisher's "unacceptable demands.” That vague wording inspired Viennese humorist Edwin Baumgartnerto riffthat the Valse's publisher, Breitkopf & Hartel, had insisted that “the Lipizzaner Horses dance a mazurka while the waltz plays” or that “the conductor Zubin Mehta do a handstand on the timpani."
Of course, Breitkopf's actual demand was for money - specifically, for film (a.k.a. "synchronization") rights. A journalist reportsthat the Vienna Philharmonic was willing to pay no more than 2000 Euros, but Breitkopf would accept no fewer than 4000 of them (about $4800). Neither side blinked, so none of us will hear the Vienna Philharmonic play Sibelius on New Year’s Day.
THE "GRIDLOCK ECONOMY": HOW MUCH MUSIC IS SILENCED BY COPYRIGHT?
Whatever the merits of this case, the outcome - no Sibelius on New Year’s Day - points to a general consequence of copyright expansion. The original purpose of US and UK copyright was to foster “the progress of Science and useful Arts” - that is, to maximize the amounts produced and made available to the public. Yet today, copyright law has the opposite effect. It keeps a great deal of music from being heard at all.
How much music? William Patry, in a scathing book called "How to Fix Copyright" (Oxford University Press, 2012), notes that 95% of Motown recordings, 97% of books, and even more of the music in the BBC archives sit unavailable to any of us. That's not because they would be expensive to distribute but because publishers can’t afford to track down every possible owner of copyrights on them. Publishing might expose companies to so much liability that they instead let the pages mold and the tracks degrade. But who benefits from this arrangement - the musicians whose music is forgotten? The authors who go unread? Their descendants? You and me?
Legal theorist Michael Heller calls this outcome the "tragedy of the anti-commons." His "The Gridlock Economy" analyzes how when "too many people own pieces of one thing" and "block each other's use," then "cooperation fails" and "nobody can use the resource" at all. Some fine documentaries, TV shows and movie, he says, can't be broadcast or streamed because the producers can't afford to pay "synchronization rights" to the owners of the music. Those rights are exactly what Breitkopf wanted from the Vienna Philharmonic.
Another reason so much music goes unheard is that the duration of copyright has gotten longer and longer. In 2014, the heirs of Motown songwriters can still claim royalties, a legacy that none of those songwriters could have expected. In 1959, when Berry Gordy founded Motown, copyright in the US lasted only 56 years. Had it remained there, many Motown songs would now be in the public domain.
To explain why copyright has gotten so much longer, I need to give a little background on the overriding copyright war of our day, the dispute between American and European theories of copyright.
WHY DUKE ELLINGTON WAS BANNED IN NORWAY: EUROPEAN LAW AND "MORAL RIGHTS"
In a superb history for the general reader, "The Copyright Wars: Three Centuries of Trans-Atlantic Battle," Peter Baldwin writes,
"By the early 19th century courts in Britain and America .... copyright was declared a merely statutory right, founded immediately on man-made law.... in Europe, in contrast, the idea endured much longer that works were property founded directly on natural rights."
British and American thinkers rejected the idea of "natural rights" (James Madison, for example, saw copyright as something bestowed purely by government). They also saw that what we now call "intellectual property" differs fundamentally from physical property. For one thing, it would cost a fortune to build an exact replica of a country estate in Finland, but it costs almost nothing per unit to print exact copies of a book or recording. Also, unlike a house or a horse, a printed book can be "used" by many people all at once without affecting the original manuscript - or interfering with other readers. My reading a book does not get in the way of your reading another copy of that book at the same time.
Further, the founders observed, intellectual property gains value to the author precisely because it is shared. That novel or treatise you've written makes you less happy if nobody ever finds out about it. You are happier if everybody reads it. And that sharing of intellectual property can also benefit society more than if it is kept exclusive. Thomas Jefferson said, “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea... No one possesses the less, because every other possesses the whole of it."
Jefferson regarded copyright not as a good but as a “necessary evil." He and James Madison referred to it in their correspondence as monopoly, which they considered "a sacrifice of the many to the few." Still, they said, copyright was "too valuable to be wholly renounced"; without it, authors would have too little financial incentive to create. But the focus of American law was not on that private incentive, but rather on the public good.
To balance these opposing concerns, their solution was to grant only as much copyright as was needed to create an incentive to authors - but no more. By 1774, British courts had banned almost all "perpetual" copyright; in 1790, that ban became an explicit part of the Constitution. Article 1 gives Congress the authority to grant copyright for a “limited time," after which the work passes into the public domain.
The Sibelius dispute is taking place in Europe, and that is fitting. From the 19th Century, European law has given far less weight to the public good and far more to the "natural," inherent rights of authors to own their works as inalienable expressions of their personalities. In the 20th Century, European lawmakers took authors' rights beyond those of physical property owners. When you sell a house you have no further claims on it, but European lawmakers enshrined the "moral rights" of authors to control how works are treated even after they are sold.
The moral rights doctrine gained traction partly because of Romantic ideas of genius. But supporters' motivations also included lucre - the first group to push for it was publishers - and nationalism. Thus the Norwegian Academy of Music charged that Duke Ellington’s jazzy 1960 version of "Peer Gynt" infringed on the moral rights of Edvard Grieg (d. 1907) not for financial but for ethno-nationalist reasons. Their racism is evident, but was not the whole story: Norway had previously objected to a 1944 operetta based on Grieg’s life, "Song of Norway," because of its “American lack of piety,” its “act of vandalism towards the music of the Master,” and its “commercial prostitution.” European doctrine gave the charge again Ellington legal weight, so Columbia Records withdrew his "Swinging Suites by Edward E. & Edward G." from the Norwegian market. (A digression: a strong case can be made that Grieg himself would have loved these suites and detested the ban. But that is another essay.)
WHY COPYRIGHT KEEPS GETTING LONGER: THE TALE OF THE "MICKEY MOUSE ACT"
These transatlantic philosophical differences led Europe to grant much longer terms of copyright than Anglo-Americans did. While our Constitution granted copyright for a maximum of 28 years, many 19th-Century European countries granted copyright for the author's lifespan plus many decades (50 posthumous years in France, 80 in Spain). Copyright duration had doubled in the US by the early 20th Century, but in Europe, the 1928 Berne Convention set a standard at life-plus-50 years. The half century was meant to equal the longevity of two generations of the author’s descendants. (By contrast, American law explicitly did not concern itself with grandchildren, refusing "to restrict the public's free access to the work by continuing the benefit to remote heirs.")
But descendants are living longer now. With that dubious justification, in 1991, the European Union increased copyright to lifespan plus 70 years. If it hadn't, Sibelius's music would have gone into the public domain in 2007.
For much of our country's first two centuries, US constitutional law stood in opposition to Europe's "Berne Convention" both in theory and in practice. American courts scoffed at moral rights while French jurists despaired over Americans' inability to understand them. Baldwin informs us that "a standard French legal textbook from 2005" deplores America 's "communitarian" emphasis on copyright serving the public good, saying that it links us - get ready for Godwin's law - to the Nazis and Communists.
But increasingly global trade and communication raised pressure on governments to harmonize copyright regimes. When they did, says Baldwin, in "important respects, the Continental approach triumphed" and America "turned European."
Baldwin details how. In 1976, the US extended copyright to life plus 50 years, and in 1988, after holding out for over a century, we joined the Berne Convention. When Europe extended copyright to life-plus-70 in 1991, our Congress followed suit in 1998 with the Sonny Bono Copyright Extension Act, named for Cher’s former partner, then a congressman from California. Unofficially, it became known as the "Mickey Mouse Act," since it passed because of heavy lobbying by Disney. Its signature rodent would have escaped into the public domain without it. Hollywood had become the world's biggest culture exporter and wanted copyright to last as long as possible; Jack Valenti joked about overcoming the Constitution's ban on perpetual copyright by making it "eternity minus one year."
Congress will have to reauthorize the Bono Act in 2019; perhaps there will be a fight this time. Research is suggesting it would be warranted. For example, a massive and elegantly designed study using Italian opera found that the prospect of posthumous copyright creates no measurable incentives to authors.
EXTENDING COPYRIGHT HAS HURT SOME MUSICIANS, AND SIBELIUS MIGHT RELATE
But would musicians welcome any extension of copyright? Many do not. That's because many of the changes benefit not artists, but more politically connected parties like heirs, publishers and media conglomerates. Consider a 2011 ruling by the EU that retroactively extended copyright on sound recordings from 50 to 70 years. Recordings made during The Sixties would have been going into the public domain in this decade, and the music industry was freaking out. It was ecstatic at the ruling.
But many musicians were not. Nick Mason of Pink Floyd, Ed O'Brien of Radiohead and singer Sandie Shaw were leaders of the Featured Artists Coalition, and Shaw said, according to the New York Times, "This is extremely good news for record companies and collection agencies, but bad news for artists. It means they have 20 more years of servitude to contracts that are no longer appropriate to the digital age." The Times backed her up with numbers, noting that the Center for Intellectual Property Policy and Management and Bournemouth University found that "72 percent of the financial benefits from the new directive will accrue to record labels." Another 24 percent will go to superstars like Taylor Swift. Only 4 percent ends up in hands of non-superstar musicians.
Those statistics would not have surprised Jean Sibelius. "Valse triste" was by far the biggest hit he was to write. But when he signed the contract with Breitkopf and Hartel in 1905, he was still a bit of a rube, and Breitkopf took advantage of his naivete. It convinced Sibelius to sign away the piece for just 300 Finnish marks without further royalties. For the rest of his life, Sibelius was haunted by the sense that his little waltz could have made him a mega-millionaire. He might have managed a dour smile thinking of the irony of Breitkopf's getting nothing on New Year's Day from owning this bit of Sibelius.
