Copyright-work protection under assault from all sides

Recent court decisions seem to be changing the law in ways that favor those who feel free to appropriate another person’s work over those who produced the work and bothered to seek copyright protection. The willingness of courts to undermine copyrights feeds an ever-increasing public attitude that whatever an artist does is there for the taking.

This is not good news for artists and other innovators – private or corporate – and in the long run it will stifle progress. Only the altruists – who are few and far between – willingly work for nothing. Everyone else expects to be paid – and hopes to be paid fairly – for the work they do. And, further, they expect to be able to pass on to whomever they wish the residual value of their work.

Happy birthday to whom?

Copyright law never stopped any family from gathering around a decorated cake and singing “Happy Birthday to You,” but it did stop people from singing the song in a commercial setting. That’s what a copyright is designed to do.

The holders of the “Happy Birthday” copyright were more assiduous than many others in asserting their rights, which is one of the reasons that chain restaurants were forced to come up with their own ditties to sing at the tables of celebrating diners. Had they sung “Happy Birthday to You” they risked getting a letter from the copyright holder demanding payment.

That may all be changing, after a ruling last month by Judge George H. King of U.S. District Court in Los Angeles voiding a copyright on the song claimed by music publisher Warner-Chappell since 1988. It’s a complicated case, and the judge’s 43-page ruling may or may not be upheld through inevitable appeals, but its effect is to reward those who claim they have an unfettered right to work they didn’t do. The music publisher claims the copyright will lose about $2 million a year, a quarter of which has been going to the Association for Childhood Education. That charity was designated by the family of Patty Smith Hill, a Kentucky kindergarten teacher, and her sister, Mildred J. Hill, who composed the song in 1893.

One of the principals bringing the suit was Jennifer Nelson, a documentary filmmaker who balked at paying $1,500 for the right to use the song in a documentary she was making about the song. We suspect that if and when Nelson completes her film, she’ll seek copyright protection for her work. The ultimate irony would be to see her file suit against someone who produced and sold a bootleg copy of her movie.

You could Google it

In 2004, Google began creating digital copies of books – some copyright, some past copyright; some out of print, some still in print – without seeking the permission of the books’ authors or publishers.

Groups representing authors and publishers filed suit, leading to a court battle that continues today, although most of the plaintiffs have reached out-of-court settlements over the last eight years. But one plaintiff fought on, the Authors Guild, even after an initial loss in U.S. District Court in 2013. Now the Authors Guild’s argument has been rebuffed by the 2nd U.S. Circuit Court of Appeals in Manhattan.

The courts have ruled that Google did not violate copyrights by making digital copies of entire works because Google is making those works only available online in “snippets.” That, says the courts, is “fair use.”

Fair use has long been legally recognized – and newspapers have been the beneficiaries of that recognition. Fair use has traditionally involved using a brief portion of a copyright work for purposes of criticism or review, news coverage, teaching and research or satire. None of those exceptions would seem to cover Google’s word-for-word digitalization of – at last count – 20 million books.

The court decisions consistently refer to Google’s display of “snippets” from its digitalized books. But those snippets can run up to 10 pages, with a page or two omitted, and then resume for 10 more. The end result may not be a complete book, but it would seem to be far more than a snippet.

The appeals court said while Google is profiting off its digital library, that doesn’t justify denying the company fair use, because the end effect is to enhance public knowledge.

Perhaps most galling is the contention by the lower court that Google is helping to create new audiences and potentially creating new sources of income for authors and publishers. Shouldn’t it be up to the creators of the work – not Google or the judge – to determine what’s in their best marketing interest?

Increasingly, many aren’t seeing the appropriation of literature, motion pictures, music, broadcast sporting events, live theater or other creative works as the theft that it is. That is a giant step backward for a civilized society.