Public Domain
October 04 2009 — Guest Post by Huw Murdoch
This post is a response to this competition that happened a while ago (via Kottke). The winning concept resonated with me, and this is an attempt to deal with the thoughts I've had about public domain art since then (It's worth reading the Jury comments on the website, which sum up some things I don't bring up in this post).
The idea of art in the public domain is a powerful one, I think. It doesn't just mean that it's free for someone to use, it also means that they don't have any restrictions on how they use it. This is, by itself, a good thing for art. Let's assume that Michael Jackson's music became public domain tomorrow. The recordings would still be covered (under separate laws), so it wouldn't mean everyone would be free to sample those without fear of legal action, although getting the clearances for Jackson's recordings appears to be much easier than for, say, The Beatles. Here are some things that would result:
Artists wouldn't have to pay, or seek permission, to record their own versions of the songs.
Artists would be free to incorporate any musical idea found within the songs, without threat of legal action.
While, like with recordings, specific published versions of the sheet music would still be protected, people would be free to publish and distribute their own transcriptions of the music, even for commercial use.
Some likely implications would be:
The songs would be used more often in commercials, films, musicals, ringtones, etc, as the costs would be limited to, at most, paying performers to cover the work in question.
We would hear a lot more music that would obviously incorporate elements of Michael Jackson tunes.
His music would feature heavily in educational texts.
As a result of these points, you might say that Jackson's music would be overly re-recorded, and used to sell anything, while the brilliance of the original recordings would be diluted by the endless crap surrounding them. Not only that, but artists would unduly profit from Jackson's talents by stealing his ideas to use in their own compositions. These are fair points, possibly, though certainly not the main objection most people would have to art entering the public domain immediately after death (or even before). Musicians, typically, do not earn much money through performing, or even recording, their works. They do, however, earn reasonable amounts of money through royalties, which they wouldn't be entitled to if their work was considered public domain. However, if a work retains currency in popular culture, someone is going to profit from it. If not the composer, through royalties, then it will be the company that uses the song on an advertisement, or the band that records their own version for an album, or a publishing company that sells the sheet music for the songs. Surely the artist, or their estate, should receive some compensation in these situations?
I'm not so sure, but it's a tough question. The thing about the Michael Jackson clock, though, is this:
We live in an era of constant change. Since the advent of sound recordings, the popularity of musical groups has changed dramatically over the course of a couple of years, if not months. Things that are culturally significant now may be completely forgotten in 70 years (the opposite is, of course, possible too). When Michael Jackson's music enters the public domain, who will care? Will young music students, sick of playing Beethoven or Dvorak, get excited by the opportunity to play "Billy Jean"? Will musicians suddenly get to release their song that sets the melody and text of "Smooth Criminal" to something else, something we possibly haven't even heard of? Most likely not, because his music will probably be dead to popular culture.
People of all ages get excited by Michael Jackson. His music (and his dancing and his video clips) inspires us, and it tugs at us and it makes us grin and laugh and cry in wonder, and it compels us to listen! If his music were in the public domain now, it could mean something, it could enable people to more readily tap into their feelings about his music. In 70 years, those people who were fortunate enough to be teenagers when Thriller was released will be over 100. Who does it serve to keep his music copyright until then?
Cross-posted from The Man Without Qualities
Comments
For the hundredth time. This is not a good thing for art because it means you will not have professional artists with time and energy to create extraordinary works of art. Except for ones from a certain socio-economic and educational background. Do you want this to happen?
Well, it might have been unclear, but I said that the freedom of use "by itself" is a good thing. I agree that the lack of royalty income for artists does make it more likely that fewer people will be able to spend time making art, and this is a problem, for sure.
I started to write a very long comment in response to this, but it got a bit out of hand, so I posted it on my blog, where this post originated. You can read this here: http://withoutqualities.com/tmwq/post/more-on-public-domain-art1/
Yours is a perfectly reasonable response. So reasonable that in the world to come it could be reprinted in full in "The Australian" without acknowledgement or payment. And your first album could be sold in the millions by Sony without acknowledgement or payment. The only people who will benefit from the removal or undermining of copyright are the megacorporations.
This is the same old argument that is based on the premise that because it is art it should be free for everyone to enjoy because the artist does it for love, and love is enough. Might work in a utopian world where money wasn't necessary to live, but that's not reality. I'll support putting artstic creation freely into the public domain the day CEOs of banking, insurance and mining companies decide that they'll do it all 'for love' and donate their million dollar salaries to the artists.
I disagree with your arguments on many levels. I think you are making an artificial distinction when you separate the concept of freedom of use with the reality and from the artist. Really good music will not disappear in 70 years time just because it is copyrighted - who are you kidding. I think the artist should decide on what type of copyright they want (or their families after death).
I noticed that in your response to Paul's 'crazy' comment, you counter that "my original post was explicitly about Michael Jackson. That is, it was a post about dead artists, not live ones." In fact, your post is about art in the public domain and some of the implications. You extend your argument from the example of Michael Jackson to 'Artists' in general AND you extend your discussion further to include 'alive' artists. At one point you say that "surely the artist, or their estate, should receive some compensation in these situations?" then you say "I'm not so sure". But rather than answer this uncertainty, you say but look over here at Michael Jackson again. Your argument, and your very carefully constructed response, appear on the face of it to be incredibly misleading and possibly even deceitful.
A call to order here, please. I totally understand that some of you may disagree with Huw's argument. But comments stating it's deceitful, or just being generally rude, won't be tolerated after this. IT IS very complicated issue. It needs to be discussed in a reasonable fashion. I invite people to write guest posts on Spike because I'm interested in their perspective, and because I respect their intelligence, not because I want to set them up for sledging.
Sorry - the above, comment wasn't anonymous, it was Sophie - Meanjin's editor.
I think you all make entirely valid points. When I said I was posting explicitly about MJ, well, you're right - it may not have been particularly explicit, unless you follow the link that I mention as being the reason for this post: a competition about a monument to MJ.
Gabrielle, I think you're probably correct about the trouble of making artificial distinctions between things that can't easily be separated, but I also think it's worth considering who benefits from the status quo as it stands now. Some artists do, certainly, but many others don't have any thought for royalties at all, certainly royalties they may earn after death.
To Brad, I didn't answer the uncertainty because I am uncertain, and I don't have an answer. I tried to keep the post about Michael Jackson, because I was wary of leading it astray, knowing all too well that a post about copyright in general would likely require a much more substantial piece. I had no intention of being deceitful, however, and I would always be happy to discuss the issue further.
As Sophie says, it's a complicated issue. I'm glad it evoked such a passionate response, even if it's all in disagreement with me.
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