Waltzergate, Sibelius, & the Copyright Wars: Part 1 of 2

Dec 30, 2014

Jean Sibelius "created Finnish national identity in music." Asked to characterize their culture, Finns "invariably mention… ‘our Sibelius.’” But just who, literally, owns Sibelius? It was a hot question in 2014. The composer died in 1957, but our era's copyright wars pull him in like a twenty-something megastar. While Taylor Swift set off one copyright scuffle this year, 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." The heirs had registered it in 2008, but didn't file proof that they used the trademark in its first six years - and that caused it to be canceled automatically in November. (My thanks to Matthew Hintz of Servilla Whitney LLC for clarifying this for me.)  Trademarking Sibelius's name seems to have been an attempt to keep at least something coming after his music enters the public domain, as it will in 2027; at that point, the mighty river of royalties it generates will run dry. I don't know how the strategy is faring in Europe, but it foundered this year in the US. (Mr Hintz tells me that the estate of Arthur Conan Doyle is trying something similar.) 

Nice mazurka!
Credit wikipedia

The second skirmish, also in November, was reported widely. The Vienna Philharmonic announced that it was "regretfully" dropping the most famous single work by Sibelius, Valse triste, from its 2015 New Year's Day concert.  The performance had been intended, said the orchestra, "to mark the 150th anniversary of the birth of the composer," which is in December of 2015. But the orchestra changed its program because of "unacceptable demands made by the publisher.”  That vague wording inspired Viennese humorist Edwin Baumgartner to riff that 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." 

 But the demand was, of course, for money - specifically, for film (a.k.a. "synchronization") rights. A journalist reports that 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.  

(What  the orchestra does play is being broadcast live on New Year's Day on Iowa Public Radio from 10AM to 12 noon, and even without horses, headstands or Sibelius, it looks like it will attain the Olympian heights of froth and gemutlichkeit we’ve come to love. The loss of Valse triste may make it that much rosier, in fact, since the piece represents a young woman dancing with death; what we'll hear instead is Johann Strauss Jr.’s  Anna Polka, a delight named for St. Anne only because it was first performed on her festival day.)

More contested than Taylor: Sibelius in 1913
Credit wikipedia
 But I digress. To return to the standoff that I hope will become known as "Waltzer Gate," I don't know enough to judge who is right in this particular case. But I can say that the outcome - no Sibelius on New Year’s Day - points to a widespread consequence of copyright law today. In the US and UK, the original purpose of copyright was to foster “the progress of Science and useful Arts”  - to maximize the amount of arts and sciences produced and made available to the public. Yet today, copyright law has the unintended effect of keeping a great deal of music from being heard at all.

How much? William Patry, in a scathingly brilliant 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 sits unavailable to any of us today, not because these works would be expensive to publish but because the corporations can’t afford to track down every possible owner of copyrights on them. Publishing this material might expose companies to so much liability that they instead let the pages mold and the tracks degrade in the vaults. It’s hard to see who benefits from this arrangement: the musicians whose music is forgotten? The authors who go unread? Their descendants? You and me?  

It's an example of what legal theorist Michael Heller calls The Gridlock Economy, which results when "too many people own pieces of one thing" and "block each other's use" so that "cooperation fails" and "nobody can use the resource" at all. Among his examples of this "tragedy of the anti-commons" are  documentaries that can't get made and TV shows and movies that can't be broadcast or streamed because the producers can't afford the "synchronization rights" they'd have to pay to the owners of the music. Those rights are exactly what Breitkopf wanted from the Vienna Philharmonic.

Berry Gordy
Credit wikipedia

 Waltzer Gate also reflects another major reason that copyright concerns keep so much music unheard: the duration of copyright has gotten longer and longer. If an author of a Motown song lived  beyond 1945 -  and all of them did, given that Berry Gordy didn't found the label until 1959 - then in 2014, that author's heirs could still claim royalties. Those claims weren't foreseeable when Gordy founded Motown. At that point copyright in the US lasted only for 56 years, so that many of the songs would now be in the public domain. To understand how copyright has gotten so much longer since then, I need to give a little background on the overriding copyright war of our day, the dispute between American and European theories of copyright. 

In a superb history for the general reader, The Copyright Wars: Three Centuries of Trans-Atlantic BattlePeter 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 by government). They also saw early on that what we now call "intellectual property" differs fundamentally from physical property. Unlike, say, a country estate in Finland, thousands of exact copies of a book or recording can be made at very little cost per extra unit. Unlike a house or a horse, a printed book can be "used" by many people at once without affecting the original manuscript or interfering with other readers' use - my reading a copy of a book does not get in the way of your reading another copy at the same time. Unlike a house, intellectual property gains value to the author precisely from its being shared: that great novel or treatise you've written makes you less happy if nobody else ever finds out about it. Finally, the sharing of intellectual property can benefit society in a way that the unlimited sharing of, say, a horse could not. 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, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one.......No one possesses the less, because every other possesses the whole of it."

Thomas Jefferson: Copyright is "a necessary evil"
Credit wkipedia

Jefferson regarded copyright not as a good but as a “necessary evil." He and James Madison referred to it in their correspondence as monopoly, a term surviving from the era when a publisher could print a book only if granted a privilege by the crown. Madison called monopoly "a sacrifice of the many to the few." Still, he said, copyright was "too valuable to be wholly renounced"; without it, authors would have too little financial incentive to create and publishers to publish. Yet the focus of American law had to remain on the public good. The solution was to grant only as much copyright as was necessary to create an incentive to authors, but no more. By 1774, British courts had banned almost all "perpetual" copyright; in 1790, our framers made that ban 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. 


Banned in Norway! (In 1960 for "infringing on the moral rights" of Grieg)
Credit wikipedia

Waltzer Gate is taking place in Europe, of course, 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 2oth 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 what they called the "moral rights" of authors to control how their works are treated even after they are sold.  To be sure, the rise of the moral rights doctrine had links to lucre - the first group to push for them had been publishers - and also to European nationalism and distaste for American commercialism. When the Norwegian Academy of Music charged that Duke Ellington’s 1960 read on Peer Gynt infringed on the moral rights of Edvard Grieg (d. 1907), Baldwin says, Columbia Records voluntarily withdrew Swinging Suites from Edward E. and Edward D. from the Norwegian market. 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.”  

But what's central to Waltzer Gate is that the 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 (doubled by 1909), in the 19th Century many European countries granted it for life plus several decades (50 posthumous years in France, 80 in Spain). In 1928, Europe's 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 justification (which is dubious, Baldwin says, partly because authors are also living longer), in 1991, the European Union increased copyright to life plus 70 years. If it hadn't, Sibelius's music would have gone into the public domain in 2007. 

Not so fast with this public domain stuff, Mickey!
Credit wikipedia

For much of our country's first two centuries, our constitutional law and Europe's "Berne Convention" stood in opposition, 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 to - get ready - the Nazis and Communists. But over the course of time, increasing 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 it happened. In 1976, the US extended copyright to life plus 50 years, and in 1988, after holding out for over a century, it 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, who was by then a congressman from California. Unofficially, it became known as the "Mickey Mouse Act," since it passed because of heavy lobbying by Disney, whose signature creation 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.") The last decades have imported into American law durations of copyright long enough protect the estates of  grandchildren, as well as concerns with the "natural rights" that Jefferson and Madison rejected and even with "moral rights."

l'll be writing about the Bono Act in a future post, for two reasons. First, it is not quite what the French call a fait accompli - Congress will have to reauthorize it in 2019, and it appears there's going to be a real fight this time around. Second, a massive and elegantly designed study came out in 2014 using Italian opera to shed light on the underlying issues in the Bono Act. It deserves to be posted about. I will, and when I do I'll also discuss some creative ideas from William Fisher and William Patry on just how long copyright should be and on how to make sure artists are compensated fairly.

Right now, though, back to Waltzer Gate. You might imagine that musicians would welcome any extension of copyright, but many do not. That's because many of the legal changes benefit not artists (whom almost everyone thinks should be paid for their work) but more politically powerful parties like heirs, publishers and media conglomerates. A recent example was a 2011 ruling by the EU that retroactively extended copyright on sound recordings from 50 years 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.


Singer Sandie Shaw on copyright extension: "20 more years of servitude"
Credit wikipedia

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 ever wrote, 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. The publishing house got 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 knowledge that the little waltz could have made him a mega-millionaire. That of all his pieces it was Valse triste that was dropped on New Year's Day might have had Sibelius reaching for his all-too handy bottle of gin.

One last point for now. While publishers and media companies have succeeded in expanding copyright, new forces have been blowing up everything they've fought for - and you're using those forces right now. I'm referring to digitalization and the Internet. So, yes, we'll have no Valse triste on New Year's Day - but really, you want a first-rate live concert broadcast of the piece? Go to youtube, my friend! Here's one I especially like. Enjoy it while you can -  you never know when that takedown order will come through - and enjoy the irony that it's played by the Chamber Orchestra of Europe, a large part of whose funding comes from the EU, which has done at least some things just right when it comes to giving the public access to Sibelius! :