When Is Art Free?

Mortimer (a.k.a. Mickey) Mouse could be up for grabs by 2004, along with the first talking film, "The Jazz Singer," and the classic hit songs of Irving Berlin, Cole Porter, Hoagy Carmichael, and George and Ira Gershwin. Up next: the novels of Ernest Hemingway and William Faulkner and the poems of Carl Sandburg. All are part of a critical bulge of classic films, songs, and books about to lose copyright protection.

To copyright owners, this shift into the public domain could mean the loss of millions in revenues. To the public, it means open access to ideas that helped define the 20th century.

The last time these works teetered on the edge of the public domain, Congress extended copyright protection 19 years. Now entertainment corporations, trusts, and estates are urging Congress to add another 20 years to the term of copyright protection. Opponents say this proposal is a formula for cultural stagnation.

"If I could stop this bill by giving perpetual copyright to Mickey Mouse, I'd do it - not that they deserve it: Disney doesn't pay royalties for Pocahontas and Snow White, so why shouldn't Mickey Mouse go into the public domain?" says Dennis Karjala, a law professor at Arizona State University.

"I'm more worried about the vast run of the rest of American culture that is being tied up. There will be no additions to the public domain for 20 years if this passes. We'll have another 20 flat years where everyone has to work with what is already in the public domain. The existing cultural base on which current authors can build simply can't grow," he adds.

Under current copyright law, musical, dramatic, audiovisual, and other works are protected 50 years after the death of the author; and 75 years if the copyright holder is a corporation. That means that the work cannot be performed, reproduced, or adapted - as in writing a screenplay from a novel - without permission from and payments to copyright owners.

The case for extending copyright protection is anchored in corporate profit. The so-called copyright industries (including television, movies, music, books, and computer software) are the nation's No. 1 exporters and contributed $60 billion in foreign sales in 1996, according to the Washington-based International Intellectual Property Alliance.

In 1993, the Europeans extended copyright protection for their own works for the life of the author plus 70 years. US industry spokesmen insist that Congress match that level of protection. "As the world leader in producing copyrighted works, it would be unseemly, and just plain unthinkable, for the US to lag behind other nations in protecting its copyright industry," said Fritz Attaway, Washington general counsel for the Motion Picture Association of America (MPAA) in congressional testimony last year.

Moreover, without copyright protection, there would be no incentive for movie companies to maintain the quality of films or to aggressively market them, he added. MPAA spokesmen renewed calls to extend copyrights in testimony last month before the House Subcommittee on International Economic Policy and Trade.

It's more difficult to assign a dollar value to what is lost to the public, writers, and other artists by blocking access to these works for another 20 years. You'd need to know what biographies or histories were not written, because heirs refused access to copyrighted materials or what plays were not performed, because payments were too high or terms of performance too limiting.

For example, when Washington's Shakespeare Theatre decided to cast a white actor, Patrick Stewart, as Othello along with an all-black cast last year, they didn't need permission from Shakespeare's heirs, because the play was already in the public domain. But a theater group wanting to perform "Porgy and Bess" with an all-white cast could not, because the Gershwin Family Trust stipulates that the work can be performed only with an all-black cast.

The US Constitution assigns to Congress the power to provide copyright protection "for limited times" in order to promote "the progress of science and useful arts." But critics argue that the tendency of recent legislation is to extend protection indefinitely.

"The large corporations controlling copyrights in this country would like additional revenue obtainable by limiting the public domain even more than at present, and, I suppose, would go so far as to make copyright perpetual if they possibly could," says Hayward Cirker, president of Dover Publications Inc., Mineola, N.Y., which publishes $1 editions of classic books.

What troubles opponents of copyright extension is that no witnesses at the congressional hearings last year spoke to the public interest. In letters to Congress, the Association of Research Libraries argued that the proposed legislation "affords the public virtually no benefit."

"Corporate copyright is increasingly enforced so vehemently that it enormously hinders artists who are trying to use what has come before as building blocks for the future," says Steve Zeitlin, director of City Lore, a New-York based center to promote urban folk culture. "Even tracking down the copyrights for the materials you are using is an enormously expensive task."

But critics concede that it's been hard to organize opposition to this proposal. Lobbying Congress is easier for the Gershwin Family Trust than for the tens of thousands of high school chorus directors or local band leaders who can't afford the fees to perform his work.

The House passed copyright extension last year, and the issue is awaiting action in the Senate. Ironically, what's bogged down swift passage of the bill is a fight between performing societies who collect licensing fees and the powerful National Restaurant Association, which wants to use radio, television, or cable programming without paying royalties.

Restaurants argue that performing rights associations have been excessively zealous in coming after fees. "They send representatives into a bar, don't say who they are, and then demand that owners fill out a check," says Christina Howard, a lobbyist for the National Restaurant Association. Some restaurants have stopped singing "Happy Birthday" to customers to avoid copyright litigation.

Exhibit A in the case that copyright holders have gotten too aggressive is a 1995 episode where Girl Scouts were filmed dancing to the Macarena in silence around a campfire because of a dispute over copyrighted songs. The incident was picked up by more than 15,000 media outlets, and proved deeply embarrassing to the industry. The American Society of Composers and Music Publishers (ASCAP) later apologized for the misunderstanding.

Sen. Orrin Hatch (R) of Utah, chairman of the Senate Judiciary Committee strongly opposes the House version of the bill, so long as it includes the restaurant amendment.

But even if copyright extension stalls another year, critics worry that the current debate has focused so exclusively on cash flow that the original rationale for copyright protection - an incentive to create - has been obscured.

"Copyright law isn't about making sure that people have money, but making sure that society has culture. It's about creating things," says Adam Eisgrau, a spokesman for the American Library Association. "The ultimate objective is to have information out in society to do all the good it can for all the people it can," he adds.

For lawmakers, the issue boils down to keeping copyright in balance. What has been missing in the current debate over copyright extension is the case for why the great works of the 1920s and beyond should ever go into the public domain.

Who owns it?

Peter and the Wolf, Sergey Prokofiev

Owned by Walt Disney

Yesterday, Paul McCartney

Owned by L. Michael Jackson and Sony Music

God Bless America, Irving Berlin

Owned by Girl Scouts of America

That'll Be the Day, Buddy Holly

Owned by McCartney Productions Ltd. (which also owns 'On Wisconsin,' and once owned 'The Ramblin' Wreck From Georgia Tech,' fight song)

Some Artistic Works About to lose copyright

Rhapsody In Blue, George Gershwin

The Student Prince, Sigmund Romberg

The Man I Love George and Ira Gershwin

The Grand Ole Opry (began broadcasting country music, live on Radio Station WSM, Nashville, in 1925)

The Desert Song, Sigmund Romberg

Someone to Watch Over Me George and Ira Gershwin

When the Red, Red Robin Comes Bob, Bob, Bobbin' Along, Harry Woods

Blue Skies, Irving Berlin

I'm Looking Over a Four-Leaf Clover Mort Dixon and Harry Woods

I Scream, You Scream (We All Scream for Ice Cream), Robert King, Howard Johnson, and Billy Moll

Ol' Man River, Oscar Hammerstein II and Jerome Kern

S'Wonderful George and Ira Gershwin

Star Dust, Hoagy Carmichael

Show Boat, Oscar Hammerstein II and Jerome Kern

The Jazz Singer (first sound film) music and lyrics by Walter Donaldson, Sam Lewis, Joe Young, Irving Berlin, Gus Kahn, and Isham Jones