The High Cost of Copyright:

In my classes in IP law and copyright, I sometimes have difficulty conveying to students the “cost” side of the copyright regime. That is, though we often make reference to implementing the right copyright “balance” in our law, I think students (and others, for that matter) are often uncertain as to exactly what is being balanced against what. The benefits of a copyright regime are pretty obvious – if you give people a property interest in their creations, they’ll be able to work out market arrangements to receive compensation for them; knowing that in advance, they’ll create more works of art than they otherwise would absent that protection, and we’re all better off as a result. That’s easy enough to see. What’s harder to see is why that principle should ever be limited – if protection yields more creative works, why won’t more protection yield more creative works (to the benefit of all)? Why not make copyright perpetual, and copyright rights as broad and as deep as possible — won’t that get us even more creative works to enjoy? [That’s a viewpoint that many in Congress apparently share, as copyright protection has indeed gotten longer and longer and deeper and broader over the past 50 years or so — helped along, I suppose, by those stacked bundles of unmarked hundred dollar bills left in Congressional anterooms by representatives of the “copyright industries” — hey, don’t sue me, that’s just a joke).

A story in yesterday’s New York Times caught my eye, and — unfortunately — it furnishes a perfect illustration of why copyright is not an unalloyed Good Thing. The National Jazz Museum (who knew there was such a thing?) has apparently acquired a true treasure trove of early jazz recordings. The collection — nearly 1,000 discs! — was recorded in the 30s and 40s by William Savory from on-the-air radio broadcasts, and includes performances by Lester Young, Benny Goodman, Coleman Hawkins, Lionel Hampton, Billie Holiday, Teddy Wilson, and many others of the great names of jazz (from the greatest era of jazz). Savory, apparently, is something of a legend in recording engineer circles, and many of the recordings are of stunningly high quality (and many of the performances masterpieces).

If you’re like me, and consider American jazz of the 30s and 40s to be one of the great artistic outpourings of all time, the story induces something like a swoon of ecstatic delight. When I read something like this:

Coleman Hawkins’ original version of “Body and Soul” is a landmark recording, in a class with “West End Blues” or “A Love Supreme.” On the [publicly-released] “Body and Soul” record, he plays only two choruses, because of the time limitation imposed by 78 r.p.m. records. But here, in a live performance a few months after the record’s October 1939 release, Hawkins stretches out, playing five increasingly adventurous choruses. By the last, he has drifted into uncharted territory, playing in a modal style that would become popular only when Miles Davis recorded “Kind of Blue” in 1959.

. . . I get pretty excited, as I do when I read that the collection also contains live performances of a Goodman-Wilson duet on “Lady Be Good” (with Wilson playing harpsichord!), Lester Young and Herschel Evans on “Tea for Two,” Charlie Christian playing electric guitar with the Goodman sextet in a 1939 performance of “Shivers,” the Count Basie and Duke Elllington bands’ performances at the 1938 “Carnival of Swing” on Randalls Island, . . . all previously unreleased. Oh, lordy – you’ve got to be kidding me! And listening to the excerpts from the recordings here, if anything, makes me even more delirious – this is truly great stuff by some of the greatest musicians that ever lived. It’s only slightly less exciting than reading that somehow, by some miracle, recordings of Beethoven playing the Hammerklavier Sonata, or Bach improvising on the theme from the Goldberg Variations, have suddenly surfaced . . .

So needless to say I can’t wait to hear the reissues. But alas, that may never happen. As the original article noted (with additional commentary here), the potential copyright liability that could attach to redistribution of these recordings is so large — and, more importantly, so uncertain — that there may never be a public distribution of the recordings. Tracking down all the parties who may have a copyright interest in these performances, and therefore an entitlement to royalty payments (or to enjoining their distribution), is a monumental, and quite possibly an impossible, task, and it may well be that nobody steps forward with the resources to (a) undertake the efforts required and (b) take on the risk of liability. Because copyright is a “property,” rather than a “liability” regime, you can’t just go ahead with redistribution, wait for those who have an interest to surface and prove their interest and then to pay them their fair share of the proceeds — copyright holders get injunctions, and injunctions mean they can “hold you up” for far more than their “fair share” of the proceeds. (The egregiously high statutory damage provisions of the Copyright Act, which provide for damages far in excess of any actual damage suffered, also serve an in terrorem function here for anyone considering taking on this task).

It’s not just that copyright protection lasts absurdly long, still protecting recordings made more than seventy years ago; it’s that copyright, inherently, operates to the detriment of the public when applied in retrospect, to works that have already been created. Lester Young, alas, can no longer be incentivized to produce these performances – they’ve already been created. We won’t get any more brilliant performances by Teddy Wilson if we protect these works. All we – the public — get from applying copyright here is a restriction on our ability to encounter magnificent works of art. Now of course, copyright is only ever applied in retrospect, and if we always ignored it when applied to already-existing works it would cease to exist, and would therefore no longer serve its incentivizing function prospectively.

And there’s your copyright balance; what we seek is a way to give creators enough of an incentive to create, but not too much, because too much gives us, the public, too much of an impediment to actually enjoying the works that have already been created.

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