Santa Claus Is Coming To Town... And EMI Is Keeping The Copyright
from the terminate-this dept
We were just talking about the latest efforts to remove termination rights from musicians (and other artists), and a number of termination rights battles are still ongoing. Most of the existing ones are slightly different from the ones we're talking about -- and it gets pretty down in the weeds technically. In short, there are different rules for works created prior to 1978 and those after 1978. Most of the focus is on the termination rights for works created after 1978 -- though there are some interesting ongoing battles concerning works created prior to 1978... including that song you just can't stop hearing this time of year: Santa Claus is Coming to Town.Judge Shira Scheindlin (yes, the judge who recently got attention for killing NYC's stop and frisk program, and then being removed from the case for a rather bizarre claim of bias) has now ruled that the heirs of the authors of that song, John Frederick Coots and Haven Gillespie, cannot terminate the copyright assignment, currently held by EMI, and thus EMI gets to retain the rights to that jingle you can't get out of your head no matter how many times you try.
You can read the details of the ruling at the link above or embedded below. I don't have any particular problem with the details of the ruling itself. The whole termination process is a mess -- especially for pre-1978 works -- and this is yet another case where unclear contracts likely led to this result. The reason I'm bringing up this bit of Christmas music copyright fighting is just to note that the song was written in 1934, at which time the maximum copyright that Coots and Gillespie could have hoped for was 56 years (28 years upon registration, with another 28 years if they renewed). That means that for the two of them, the incentive of having that copyright (which they then assigned away to Leo Feist, Inc.) last until 1990, was clearly all the incentive they needed to write and release that song. Under the basic terms of the deal that the public granted to the copyright holder, in 1990, that song belonged in the public domain.
Of course, thanks to the 1976 Copyright Act -- which extended copyright terms massively -- and then the Sonny Bono Copyright Term Extension Act of 1998, which extended copyright terms, yet again, for another 20 years, the song didn't go into the public domain in 1990. Nor has it reached the public domain today, 23 years later. Nor will it reach the public domain for many more years -- potentially never, if the recording industry is successful in extending copyright terms, as many expect. However, it seems somewhat ridiculous that the work did not go into the public domain in 1990. That was the deal that was struck when it was written. The song was to become part of the public domain. That didn't happen and the public got nothing in return for not being given what it was promised.
So, go ahead and sing whatever Christmas songs you like this seasons, but remember that thanks to the recording industry and Congress, you better not pout, you better just pay up your royalties in perpetuity, because the public domain is never coming to this town if they can help it.
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Filed Under: copyright, public domain, santa claus is coming to town, termination rights
Companies: emi
Reader Comments
The First Word
“Re: I've never paid a cent of royalty for it.
what's the down side to keeping CRAP locked up with copyright rather than spread yet more by every yahoo with a music-making program?Imagine, for a moment, if a book publisher had somehow managed to snag the copyright for the works of Shakespeare at around the same time as this song’s publication.
Now imagine that the same copyright problems that plague this song now apply to the entire body of work attributed to William Shakespeare.
Dozens of movies, stage plays, and books which relied on the freedom to build of Shakespeare’s work due to its public domain status might never exist (or, at least, wouldn’t exist without paying a hefty licensing fee). That includes both direct adaptations of his works and works ‘based on’ his plays (e.g. ‘The Lion King’/‘Hamlet’, ‘Ran’/‘King Lear’).
Our culture would end up worse for wear if it lost the ability to build off the culture created by one of history’s greatest playwrights.
Old culture breeds new culture. We must have access to that old culture in order to create new culture.
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I've never paid a cent of royalty for it.
And again, in general, what's the down side to keeping CRAP locked up with copyright rather than spread yet more by every yahoo with a music-making program? Your examples just make me hope for LONGER copyright, Mike! Are you picking out CRAP just for these examples, or do you really want it to spread?
Masnicking: daily spurts of short and trivial traffic-generating items.
08:44:21[j-937-3]
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Re: I've never paid a cent of royalty for it.
Imagine, for a moment, if a book publisher had somehow managed to snag the copyright for the works of Shakespeare at around the same time as this song’s publication.
Now imagine that the same copyright problems that plague this song now apply to the entire body of work attributed to William Shakespeare.
Dozens of movies, stage plays, and books which relied on the freedom to build of Shakespeare’s work due to its public domain status might never exist (or, at least, wouldn’t exist without paying a hefty licensing fee). That includes both direct adaptations of his works and works ‘based on’ his plays (e.g. ‘The Lion King’/‘Hamlet’, ‘Ran’/‘King Lear’).
Our culture would end up worse for wear if it lost the ability to build off the culture created by one of history’s greatest playwrights.
Old culture breeds new culture. We must have access to that old culture in order to create new culture.
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No consistency
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Re: I've never paid a cent of royalty for it.
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Re: No consistency
Copyright law has only ever expanded.
Don’t think for a minute that the major media conglomerates will ever let it shrink without the biggest legal/PR fight you have ever seen in your life.
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Re: I've never paid a cent of royalty for it.
Pretty much ALL of your comments are CRAP from my point of view.
It's almost like you have declared yourself The Ultimate Arbitrator of Culture. Thankfully, your OPINION is simply that, an OPINION.
BTW: The Boss' version of this song is currently 22 on iTunes Top Christmas Songs list. So basically, your OPINION isn't shared by many.
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Re: Re: No consistency
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Re: I've never paid a cent of royalty for it.
Please, read the fucking article.
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Re: I've never paid a cent of royalty for it.
But go ahead and find your stupid reasons for disagreeing with every article ever written here, since your whole pathetic life involves bitching and moaning about Techdirt.
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Re: Re: No consistency
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I wish I wasn't right
It seems that my analysis on what copyright is all too consistent with reality. We have corporate rights invading on the people and the public. Whatever shareholders and corporations want, they are pushing into being through corporate sovereignty.
As such, it seems that people need to focus on corporate rights and turn them into public rights.
The public's right to copy and share has been harmed through these corporate rights. Copyright is no longer a human concept. It is a corporate concept put into being to promote the interests of corporate control.
How do we promote access to knowledge and innovation? We can no longer believe in the reduction of copyright. As has been shown, that concept will be extended for those with the most money. The only available decision is the abolishment of this form of corporate property. There is no dichotomy of expressions of an idea. The ideas have been stifled by corporate rights. As such, copyright can no longer be considered compatible with the First Amendment. It is used to censor and control public discourse through laws that harm free speech.
Reform was tried and at every turn, from Aaron's law in the legislative, the constant enhancements of time in the Supreme Court, to the president's support of the TPP in the executive, the public has been rebuffed and neglected.
The fight, at its core, is against these corporate rights.
Abolish copyright.
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Thanks and happy holidays from Mike Masnick and the entire Google corporation!
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It adds to our culture.
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Re:
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Re: No consistency
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Re: It adds to our culture.
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Re: Re:
All he wants for Christmas is more than 20 page views a month on that silly Trichordist site.
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Re: It adds to our culture.
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Re: It adds to our culture.
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Re: Re: It adds to our culture.
As Mike commented at the time:
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Re: No consistency
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Re: Re: Re: It adds to our culture.
Personally, twenty-eight years to start with a renewal option of another twenty-eight years seems reasonable. Anything around fifty years seems to be too long for a lot of consumers/appropriation artists, and too short in the eyes of many original creators, which leads me to believe it might be fair balance. Everyone walks away a little disgruntled.
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Re: Re: No consistency
Please, that's not how they'll do it, they'll just have a few 'chats' with members of congress and the senate, a few 'promises' will be made for 'potential future employment opportunities', and suddenly they'll have a good number of bought and paid for congressmen and senators going on and on about how, while life plus infinity(minus a day) is the proper duration of copyright, they'll graciously accept another expansion adding 20, 30, or 40 years to the current law.
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J Fred Coots
Jazz musicians would know the name from the lead sheets to "You Go to My Head" and "For All We Know" and pop aficionados would recognize, "Love Letters in the Sand", which were just a few of Coots' great songs.
He's said to have written "Santa Claus is Coming to Town" in just ten minutes. That was in the Tin Pan Alley days when songwriters were expected to churn out popular tunes. Generations of jazz musicians used those tunes as frameworks for their improvisations, including Coltrane, Charlie Parker, Miles Davis, Clifford Brown and countless others.
J Fred Coots isn't put in the same category as greats like Jimmy Van Heusen, Harry Warren or Cole Porter, whose songs every jazz musician is expected to know, but he sure was a talent.
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Re: Re: Re: Re: It adds to our culture.
The 'sliding scale' model mentioned above by Gwiz(Via Mike, via Derek Khanna), with increasing fees to renew sounds like a pretty solid way of handling it personally, though I'd suggest a hard and fast part of the law should be that copyright should never last so much as a single day beyond the death of the creator.
'Life plus X' copyright duration only serves to enrich companies, not the public, not the creators, and as such has no business being involved in a law meant to enrich and serve the public, via incentives given to creators.
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Re: Re: It adds to our culture.
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Re: Re: Re: Re: Re: It adds to our culture.
How would that work for artistic endeavors that require a lot of different talents to achieve, like an epic film production or some other thing in the future we haven't thought of yet?
If you give the copyright to a single person, like the executive producer, and that person dies tomorrow, you could be screwed. I guess my question is: whose life would you base that on for things that require collaborative efforts.
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Re: Re: Re: No consistency
They are attempting to get another extension to copyright through with the TPP.
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Re: Re: It adds to our culture.
Somebody else made money from my work.
BooHoo
WAAAAAHHHHH
Most people find that more than desirable, they find it preferential. Culture would stop being locked up by the heirs of a work, regardless of what the actual creator wanted.
Copyright maximalists have corrupted the agreed upon deal so many times with bought and paid for laws, that the general population no longer respects copyright.
You have no one to blame but yourselves.
Copyright was originally 14 years, you know, back when it could take a year to travel around the globe to distribute your work. 14 years then made sense. I can even understand that, if the author decided to pay to extend the copyright, they could get an additional 14 years.
Today, the time to distribute a work around the globe is measured not in years, not in months, not in days, not in hours, it is measured in minutes, yet you want 150 year monopolies. There is no longer a register that has the expiry date of all copyrights.
You want to corrupt and remove the exemptions to copyright. You want to continuously extend copyright beyond its limit.
You want copyright to apply to things that it was never meant to cover. (Cell phone comes to mind)
You bribe politicians to back door in laws to remove my rights.
Can you explain why Hollywood executives have not been investigated for fraud, money laundering and theft? WHy there has been no investigation into why they are not paying their share of Tax. (crooked accounting practices ensure that they do not pay their share of tax, let alone the people who worked on it - Return of the Jedi has still not made a profit.)
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Re: Re: Re: Re: Re: Re: It adds to our culture.
I am supportive of copyright because I believe the creator should be given ample time to commercially exploit his or her creation. However, the length of terms are greatly in need of re-evaluation.
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Re: Re: Re: Re: Re: Re: Re: It adds to our culture.
In 1700, a 14 year copyright made sense. It took time to disseminate a work around the civilized world. it could take a year to reach the market.
In 2013, life plus 70 years makes absolutely no sense at all. a work can be disseminated in minutes, not year.
Copyright applying to electronic devices makes absolutely no sense.
Copyright being used to censor critisism makes absolutely no sense.
Retroactive extensions to copyright make no sense.
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Re: Re: Re: Re: Re: Re: Re: Re: It adds to our culture.
I see it more then dissemination. Life plus 70 yrs granted is a long time. However, I see it as being able to commercially maximize a creation, I see that as the right of the creator.
A writer rights a story and creates a character. Years later someone wants to make a film based on his story. Then toys are made....maybe an amusement park ride...who knows. I feel the creator should be able to profit from that idea as opposed to someone else. A creator is not lazy for wanting this. The continuing extension of the right I do not agree with.
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Re: Re: Re: Re: Re: Re: Re: It adds to our culture.
Assuming they managed to get away with killing the creator, the work would be in the public domain, so everyone would have the ability to potentially profit off of it, not just the one person/group that committed/ordered the murder.
Currently I'd say the two biggest failures of copyright are duration and penalties. With the duration set such that anything created will only enter the public domain(if it ever does) long after those that created it, and the culture it was created in are long past, the system hardly encourages the growth of culture and the enrichment of the public(the sole purpose it's supposed to serve).
Ideally copyright should be a 'give and take and give again' system, where the creator borrows ideas from the public for their creation, makes their money, then the public incorporates the new ideas back into culture, for the next creator to use and build off of. With how it is currently though, it's very much a 'take and nothing more' system, where a creator borrows ideas from the public, and then those ideas are locked up, with the public unable to use them in return unless they want to tempt a lawsuit.
As far as the penalties, where to even start...
The massive penalty amounts have enabled shakedown/extortion schemes around the world, as people, guilty or innocent, are forced into paying out hundreds, even thousands to avoid being fined astronomical amounts in court(on top of the significant amount it takes to even defend yourself in court, though that's a mostly separate problem).
When a single infringed copyright is considered to be a more serious crime than stealing a car, assault or other crimes with verifiable harm, it shows how broken the system is.
When the law is set up in such a manner than a person/company doesn't even have to prove any harm was incurred by them due to actions by the accused to be awarded massive amounts in court, is shows how broken the system is.
When a CD, if flat out stolen, is worth little more than a slap on the wrist, maybe a minor fine, but the same CD if downloaded is considered to be worth hundreds of thousands, possible over a million... yeah, the system is broken.
Fix these two major problems with copyright law as it stands today, and you'd likely find a lot more people agreeing that copyright is a good thing, but as it stands now the downsides to the system are huge, and the more people learn about it the less respect they have for it.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: It adds to our culture.
The copyright terms should be based on studies showing the economic life expectancy of various forms of art. Most creations diminish in value very quickly. Days, weeks, months... Some have no value at all and will never have any value. Not everything created can be sold. There's no good reason to keep all these works under copyright.
Some movies are still economically valuable after 100 years, but for every movie in print and available for sale on Amazon, there are a dozen others sitting in studio vaults because they can't sell enough of them to cover the expense of making it available.
This is where our culture has been robbed. Letting most things enter the public domain quickly, with the option to renew economically viable things so they can continue making money for their creators, seems like the best way to go. Better than making everything have the lifespan of Mickey Mouse.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: It adds to our culture.
You might have mis-read the people on this site, due to the... let's say 'less than polite' responses I've seen directed your way by those that lump you in with the standard maximalists that show up here, but with a few exceptions, just about everyone here agrees with that basic premise(despite what some of the trolls would have you believe).
Creators should be able to profit off of their work, and they do deserve the opportunity('opportunity' mind, not 'guarantee') to make a profit.
What people are opposed to is how the entire copyright system has been corrupted by corporate influence, how prone to massive abuse it is, how it provides little protection to smaller creators/companies while enabling larger companies to curb stomp any competition, how it locks up culture for ridiculously long durations, taking from the public while giving nothing back, and finally how it fails the very reasons it was initially written in as law:
'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
As far as making a profit off of your creations, check the following, it's an article that talks about two studies, one recent, the other not, that shows how insane copyright duration is, due to how fast the 'worth' of a work decreases.
Summed up, the vast commercial value of a work lasts a handful of years in most cases, so having a duration over a century is not helpful for a creator at all.
http://www.techdirt.com/articles/20130423/15252322813/bureau-economic-analysis-shows-why-copyrig ht-terms-should-be-greatly-diminished.shtml
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Re: Re: Re: Re: Re: Re: Re: Re: Re: It adds to our culture.
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Re: Re: It adds to our culture.
So?
If the series is popular, they're not going to stop writing and publishing the new books. I don't see the problem here.
It would also let companies screw authors out of money for adaptions.
Only if the author didn't get the work adapted sooner. For every Game of Thrones, there's a Twilight that is first published in 2005 and first adapted in 2008. And for every book that is ever adapted in any form, there are many thousands that never will be. Better for copyright terms to be based on the economics of the work in its original form, and to let adaptations, if they happen, be treated as gravy. It's not sensible to try to write a book with an eye toward getting made into a movie. It's just too rare.
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Re: Re: It adds to our culture.
I've always thought 20-25 years would be ideal, though I also support long periods where the copyright owner (i.e., the creator, not a corporation or distant descendant) can opt to extend copyright further if they wish.
It's a great discussion with lots of benefit - the problem is, the "other side" of the debate consists of corporate sycophants who see no value in something that's not currently commercially successful, and who see no harm in infinite copyright belonging to corporations
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Re: Re: Re: It adds to our culture.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: It adds to our culture.
Ideas and plots for all works of art are ten a penny, the execution is what determines whether is a popular work or not. It is the execution, i.e. original expression, that copyright is meant to cover, and making it cover ideas would prevent the creation of most new works.
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Re: Re: Re: Re: Re: It adds to our culture.
Also, the whole "life of creator" argument strikes me as spurious anyway as well as being yet another thing biased in favour of the few big artists vs the many little artists. For a start, few works have any direct monetary value beyond a couple of decades at most and more than this, exactly how long is a reasonable time to be paid for doing nothing further? I know I would love to still be being paid for work I did when I was 20, but I'm not arrogant enough to expect anyone to actually do so, even though I've got a good idea that some of it is still being used today.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: It adds to our culture.
Let's assume his book sells (far from a given). Great, he gets money for work he's done. Seems fair to me. There are other ways to monetise ephemeral creations like writing, but being able to stop anyone but you selling it for a while is certainly one way.
Now, years later as you say, along comes a screenwriter. He takes the ideas and perhaps dialog of the book and uses his own work and creative talent to change a written story into something suitable for screen. Perhaps the end product is quite close to the book, but likely not. Either way, the author of the book has done no additional work to create his screenplay and the only difference in what the screenplay writer has done to the what the author did is that the new work has a more obvious connection to one origin rather than many. (Unless we're talking about a Hollywood "book adaptation", where the only obvious connection may be the title...).
I can't see in that any innate or moral "right" of the original author to any profits from someone else's additional work when they have done none themselves so if you do I'd love you to explain how? Also, assuming the screenplay becomes a popular film, without copyright in the picture the original author is able to use the work of others to make more money for himself by doing additional work himself to cash in on the popularity of the film. To me this method of reward for someone else's work seems rather fairer than "give me money you worked for because I did some work years ago".
Perhaps the author could stretch his creative talents to create those toys you mentioned - doing work to turn a mental picture created by words into a visual 3d form. I'd be right alongside him being paid for that. Being paid because someone else did that piece of work many years afterwards, not so much.But the author's profited from many other people's ideas, so how is that different? I feel a creator should be able to profit from his work, assuming there is profit to be had in it at all. Sadly, while the theory of copyright agrees with me (as I understand it copyright is supposed to protect specific expression not ideas), the practice of it goes even further than you seem to want to.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: It adds to our culture.
In the case of "years later," if it should fall outside the term, it would be wise to make a deal with the film makers to write the screenplay and otherwise help with the making of the film. By providing input for character design, etc., he or she could get in on the merchandizing action.
As I said before, it's about engaging with the fans, and anyone who wants to bring your vision to life is surely a fan.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: It adds to our culture.
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Re: I wish I wasn't right
As far as I can tell, copyright has already been abolished. When either party to a contract breaks the terms of the contract, that contract is considered ended. The aggrieved party can seek damages in court, but the contract is still ended.
They broke the contract called "copyright" when they passed the very first extension. Therefore, that contract is ended.
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Re: It adds to our culture.
If we take an extreme example, Bach's "Mass in B minor", written shortly before his death, was unperformable at his life. In fact, he was longer dead than he had been alive when it was first performed in full. The reason was that it was written in an old Catholic rite no longer performable in Catholic churches and certainly not in his own Protestant churches.
It needed the time until semi-secular performances of masses outside of churches or chapels, or inside of them became possible.
Now for old Bach, that was no point. He wrote that thing as his Magnum Opus since he wanted to write it. He knew he would not make a dime from it but that he was writing his personal history and monument.
But if you write something before its time when you are actually young, the situation is different. Having it run out of copyright before the time has a chance to catch up with your vision seems to promote writing short-lived stuff.
On the other hand, I don't see the point in extending copyright significantly beyond 10 years after an author's death. He's not going to profit from it any more.
You might argue that this gives him the chance at 80 to marry an 18 year old bride by offering the prospect of caring for her for life due to his remaining royalties.
But if he's good, he probably has cash in the bank anyway, or should have. Nobody else gets these kinds of guarantee.
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Re: Re: It adds to our culture.
There's no good reason - for the public, artists, or even the corporations - to keep all this material out of the public domain, except to protect the few works that still earn an income (for the corporations.) We're not throwing out the bath water for fear of losing the baby.
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Re: Re: Re: No consistency
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Re: Re: Re: Re: Re: Re: It adds to our culture.
What I meant was that, not taking into account normal copyright duration(which pretty much everyone other than maximalists admit to being far too long. Personally I'd be for a couple decades at most for most works), the absolute maximum duration should be 'life of the author', regardless of whether the duration was 10 years, 70, or 149 for the '150+ year lifespan' you mentioned, and never extending beyond that.
'Life plus X years' only ever 'rewards' those that had nothing to do with the original creation, and if they want to get paid they can go create something themselves, there's no reason they should get to leech off of the work of the original creator, screwing over the public in the process by locking works up.
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Re: It adds to our culture.
https://youtu.be/CJn_jC4FNDo?t=3m50s
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Oh...
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