Copyright and the World's Most Popular Song

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28 pointsyannis22 comments

I remember reading a sci-fi novel that impressed me as a child about the wife of a recently deceased composer corrupting a politician to not vote for a proposal to extend the copyright on the basis that there are only a limitited number of possible "interesting" combinations of notes. Hence an unlimited copyright is like a death sentence to the creativity of all future musicians. I believe that the actual limit of 50 years is already too much.

I remember this too -- saw it on reddit, had a title that had something to do with elephant's memory or something to that. Anyone know exactly what this was?

Edit: found it! melancholy elephants: http://en.wikipedia.org/wiki/Melancholy_Elephants

Thank you, I couldn't remember the title.

Here it is if anybody want to read it:

http://www.baen.com/chapters/W200011/0671319744___1.htm

It is strange the way in which a random quote stays in our mind for years, I still remembered the following almost verbatim.

"Artists have been deluding themselves for centuries with the notion that they create.

In fact they do nothing of the sort.

They discover.

Inherent in the nature of reality are a number of combinations of musical tones that will be perceived as pleasing by a human central nervous system.

For millennia we have been discovering them, implicit in the universe—and telling ourselves that we `created' them.

To create implies infinite possibility, to discover implies finite possibility.

As a species I think we will react poorly to having our noses rubbed in the fact that we are discoverers and not creators."

This is very similar to the philosophical implications that all mathematics are out there and we are just discovering them. In this light one can always use the example of the infinite monkeys typing random characters and producing all the works of Shakespeare. If you do the Maths though you will need more time than the predicted life-span of our Universe.

Thanks for the link though very interesting.

Along this line, perhaps you have seen this Elizabeth Gilbert video: http://www.ted.com/talks/elizabeth_gilbert_on_genius.html

50 years is definitely excessive. One can argue that for very successful authors/artists it can provide income for heirs. In most cases it only benefits publishers. 30 years sounds like a reasonable period for me.

It seems to me that a reasonable compromise would be to make automatic copyright a relatively short term deal in the neighborhood of 15-25 years. But at the same time, allow copyright holders to pay a fee to extend the copyright for a further term. If the fee went up on each term, it would encourage owners to only maintain their hold on particularly marketable properties, allowing the rest to lapse into public domain.

As a side benefit, this would go a long way towards reducing the ambiguity that plagues older copyrighted works that don't have a clear owner, but still haven't reached a date where their copyright has expired. Either there would be a clear chain of documentation from when the rights were extended, or else you could safely assume the copyright had lapsed.

In the UK the Gowers review did some economic analysis and found that the current length (50 years) was too long to benefit the UK economy.

They didn't bother trying to argue that point though, as they were too busy trying to prevent the length from being increased to 95 years, which was being lobbied for strongly by various interests.

http://en.wikipedia.org/wiki/Gowers_Review_of_Intellectual_P...

I wonder why there aren't copyright trolls similar to patent trolls. They could just release huge libraries of computer generated music with all of these interesting combinations of notes. Then do automated comparisons of popular songs to find "violations." Could also be another one of those cases of getting an absurd law revoked by exercising it.

One of the main differences between copyrights and patents is that in order to infringe on a copyright, you have to be willfully imitating it. Coincidentally creating an identical work is not copyright violation if you didn't know about it.

I'm no lawyer, but that doesn't seem consistent with any other law in the US. Ignorance is never an excuse. Also, the first result from a google search for 'copyright infringement willful' yields this:

  http://www.ladas.com/NII/CopyrightInfringement.html

which says:

'Copyright infringement is determined without regard to the intent or the state of mind of the infringer; "innocent" infringement is infringement nonetheless.'

As with patents though, I think the intent does play a role in determining damages.

IANAL either, but I think you're misunderstanding. Ignorance of the law is not generally an excuse for breaking the law. But if you're not copying the original copyrighted source, you're not breaking the law in the first place. Copyright only protects against copying, and unlike patents, does not protect against independently creating the same or similar work (operative word "independently").

Relevant quotes from wikipedia:

> "... two authors may own copyright on two substantially identical works, if it is determined that the duplication was coincidental, and neither was copied from the other."

> "Infringement requires... that the defendant copied the protected work... if two individuals both create a story that by pure coincidence is nearly identical, but each without knowledge of the other, there is no infringement since there is no copying."

So in the example the poster above gave, you can't just own the copyrights. You also have to get your work distributed widely enough to claim that the author was aware of your work, from which you can build a troll-ish infringement claim.

Ignorance of the law is never an excuse, but ignorance of the facts is frequently an excuse. "Innocent" copyright infringement can occur when you think it is legal to copy something (e.g. the copyright has expired, it is fair use, etc.), but it turns out that you are mistaken.

However, for copyright to apply, you actually have to copy something. If you coincidentally come up with the exact same song that someone else wrote already, but you never heard about the other person's song, you would not infringe copyright in the other person's song.

In contrast, patents infringement is "strict liability," meaning that you can infringe a patent without even knowing that the patent exists.

If this is really the case, then it seems to be a loophole for a reverse scenario. You write a computer algorithm to generate vast collections of music. Since the computer, pretty much by definition, is ignorant of other music then you can claim copyright over everything it generates. Wait for it to produce "copies" of popular melodies and then you can publish cheap clones or license popular songs to people for a fraction of the cost of the originals.

If there is an objection that the computer isn't considered a person, then form a corporation and copyright the songs to the corporation. The corporation is equally ignorant of any other music. Human judgment is only exercised by a second corporation that searches the first corporations extensive database to find popular melodies to license.

Courts are not computers; they apply subtle judgments based on a total reading of scenario.

If your intent was to discover and then market tunes identical to popular copyrighted tunes, a court can view the totality of your system as 'copying' existing works. If your two corporations exist to obscure the real intent of the people behind them, a court can treat them as co-defendants.

But coincidence is not copying. The quote you've excerpted is when someone actually copies something, but thought it was alright to do so.

I wouldn't mind it being 50 years if it were non-transferable.

It is, after all, an incentive to create, not to seek rent.

"...was the product of intense creative labor"

I don't mean to downplay the amount of work that goes in to writing a song, but this seems a bit over the top. Short little melodies like this are trivial to write. My pre-school age children come up with these all the time.

The tune of Happy Birthday doesn't seem particularly catchy to me. We've just heard it repeated so many times.

> I don't mean to downplay the amount of work that goes in to writing a song, but this seems a bit over the top. Short little melodies like this are trivial to write. My pre-school age children come up with these all the time.

> The tune of Happy Birthday doesn't seem particularly catchy to me. We've just heard it repeated so many times.

Read the story. The authors actually did a lot of work on Happy Birthday. (They had a couple of conflicting goals and did a lot of testing.)

While short little melodies are trivial to write, HB isn't just any short little melody. Disagree? Come up with a few that work as well. Riches await.

I read the story. It claims to be "a product of a highly focused, laborious effort to write a song that was extremely simple to sing yet musically interesting and emotionally expressive, undertaken by a composer and an educator who happened to be sisters."

I still don't really buy that it was "laborious effort." And I don't think the song is popular because of some fantastic musical merits. If the song was still "good morning to all" then it would be just another song. The only reason it has any monetary value is because it became associated with birthdays.

> I still don't really buy that it was "laborious effort."

Having read accounts of said effort, I wonder what you think qualifies as laborious. They did days of testing with groups of kids.

> And I don't think the song is popular because of some fantastic musical merits.

And no one said that it has fantastic musical merits. Instead, they say that it has fantastic kid music merits.

That's a hard market to crack. Lots of people try to write Barney, but few actually pull it off.

There are lots of songs that could have become the standard. That one did, by design and labor.

As an aside, just in case anybody is interested (as I was), here's the scoop on the Happy Bday copyright from Snopes: http://www.snopes.com/music/songs/birthday.asp

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