Can you believe copyright law is even dumber that patent?
Has it ever occurred to you that we pay lawmakers a lot of money to sit in Washington and churn out some really, really retarded stuff? And that they've been doing it for hundreds of years now, which means there are probably millions of laws on the books that do more harm than good?
Today my hackles are up about copyright law. If you've ever read my blog before, you know I'm no big fan of patent law. Actually, that's not true. It's not the law I dislike, but rather how we go about enacting it. As far as I'm concerned, we hand out too many patents to things that ought not be patented. But that's not my point today: today I take on copyright law.
This story begins with my buddy Ian and I talking about a book he read on music copyright. Ian is a musician and a pretty darn good arranger, and he was interesting in making his arrangements legitimate so we could perform them. He started by telling me that before you make an arrangement you have to contact the copyright owner to get permission, which will usually entail some arranging fee and a per copy fee for distribution (and that doesn't even begin to cover performance rights). I objected, because why would I go drop a few hundred dollars on permission for an arrangement that is still in my head? It may suck on paper, and then I'd be out the money. All the same, Ian is right, the law is very clear that it is a violation of copyright to make and distribute an arrangement without permission of the holder, even if the distribution is one lonely copy that he hands me to look at, we never perform it, and he never makes a penny on his derivative.
So where does this put us, the arrangers? First off, this violates the spirit of the law, which is meant to protect the copyright holder when it comes to making money (a reason I like, because I like music, and I want musicians to have employment so they can write more music, especially the ones that write good music, so they can make more money than the hacks). Since the holder has no financial incentive in my arranging hobby, because I don't distribute the work, then the law seems to be stretching things a bit. Even still, I'm a farsighted thinker, and what if one of my friends kept an arrangement, and years later decided to use it? Ultimately the buck stops with me - the instigator - because I enabled the infringement y distributing my unliscensed work. But where do we draw the line? What if I'm just humming a tune, or humming some harmonization to something playing on the radio, and somebody hears and makes a recording, which gets around and pretty soon everone is doing it? The harmony is still my work, even though I didn't write it down. Am I still the cause of the infringement - the 'enabler' - because I didn't bother to get the holder's permission before humming along?
The next thing he brought up was that, after he made the arrangement, it would be the property of the copyright owner. I said that can't be right (turns out it is), but here was my reasoning:
A patent attorney once told me this anecdote about derivative works (which arrangements certainly are). Imagine you lived ten thousand years ago, when a lot of patentable stuff had yet to be invented. One day you come up with this clever idea to sharpen the edge of a rock or bone, which you use for cutting. You call your idea 'knife' and patent it. Along comes another cave dweller and sees your idea and says to you (in a series of clicks and grunts) that he'd like to liscense the rights to 'knife' so he can manufacture and distribute them. The two of you come to an agreement (more grunting), and production ensues.
Later, your caveman friend and liscensee stumbles across a new concept for 'knife' that doesn't require sharpening. He patents his derivative work 'serrated knife.' Unfortunately for him, he can't make 'serrated knife' without your approval, because a derivative is still protected by the original patent. Besides, without the original concept of 'knife' he probably never would have made the leap to 'serrated knife.' However, you can't go out and make serrated knives, either, because that's the intellectual property of the other guy, and his patent prevents you from taking advantage of that derivative. So for any serrated knives to reach caves everywhere, the two of you need a cross-liscensing agreement.
Not so with copyright. Apparently a derivative work becomes the property of the copyright holder. So after you discuss your intentions, pay for the arrangement liscense, and pay for copies after that, they can sell your work. At first I thought this can't be right - it must be that you don't have the right to sell your arrangements without permission from (i.e. commission to) the original copyright holder. (That is, the 'knife' guy doesn't have any rights over 'serrated knife' but to prevent their distribution). But no, the law states that your intellect is their property. It just doesn't seem right, does it?
You'll note that I haven't even taken on the topic of defining derivative, and I'm not going to, either. I hate subjectivity - it's too squishy for me. But their are some things I'd like to know, just for the record. I think we can all agree that if you keep the text and tune from a song in an arrangement, then it is a derivative. Even if you keep the text but drop the tune I'll consider it derivative, because the text on its own is a poem. But what if you change the text but keep the tune? Will Smith has done this a number of times with his songs like "Just the two of us" and "Wild, Wild West" (the melody and accompaniment is almost identical to songs by Stevie Wonder). One of Jessica Simpson's first hits, "I think I'm in love," totally took the popular riff from John Cougar's "Jack and Diane," but the melody was completely different, as was the text. Which (if either) is derivative work? My wife claims that the melody is more important than the words (so when you're in an elevator, you still recognize the piece), but she also never understands the words anyway, so she's hardly a fair judge (I actually heard her sing, "Hold me closer, Tony Danza" to Elton John's "Tiny Dancer"). To that end, I listen to stuff by Alan Menken (of Disney's Aladdin and Beauty and the Beast fame) and hear four-bar excerpts from Leonard Bernstein and Andrew Lloyd Weber. So do we call "A Whole New World" a derivative medley?
Ok, I'm done ranting. But realize, all of you computer nerds out there, that if this copyright crap applies to music, it probably applies to code, too. Keep that in mind when you're polishing a bit of Microsoft code to do your job better. In essence, you're giving Bill Gates something more to sell, only you're paying him for the priviledge.
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