Yesterday I read an article on techdirt.com entitled "Copyright Once Again Being Used to Hinder Culture, Not Enable It." I posted a comment on Twitter starting out "Wrong-don't use songs." Then I got concerned that I might have broken some unspoken taboos or etiquette on Twitter by being so confrontational. Partly as a result, I think it is worth pointing out my objections to the point of view being presented by the blog.
First: What was the fact situation the blog addressed? Well, according to techdirt.com it appears that an independent film maker used some 1920s jazz music by Annette Hanshaw in her film. The film is reportedly really good. But the film will not be widely distributed because the licensor of the jazz music wants an incredibly large amount of money before she will give permission to use the music in the wider distribution. The film maker can't make any money that way and is bemoaning the misfortune. Notably, the film critique Ebert liked the film and noted the way the copyrights were being used to prevent the film from being distributed and that this likewise limited the public's knowledge of the music.
Second: So what's the problem? According to techdirt.com, a good movie is not getting out to edify the culture because some relatively unknown music author (or their representatives) is using their hefty copyrights to hijack the movie.
Third: So how do I see it? Under the U.S. Constitution Art. 1, Sec. 8, copyright law is "[t]o promote the Progress of Science and useful Arts…." Authors are therefore given "the exclusive Right" to their writings. The general idea is that the exclusive control of ones works will promote the creation of such works by giving author's a monopoly in order make money off the works, i.e., incentive.
Now there may be problems with the system in place, most notably, how long do copyrights exist. Every few years, Congress extends the length of copyrights, in large part because Disney lobbies to extend its protection of Mickey Mouse. The length of the copyright means that it takes longer for works to fall into the public domain so we can all use them and build off of them.
It seems people approach copyright from one of two positions. Either one believes that material should be available for use in order to promote art, or one believes the materials would not exist unless they are only available after the author gives permission. The first position is too shallow for me and seems more a product of our culture than good policy.
Specifically, the argument for availability almost always skips the foundational question of whether the work would exist if the exclusive rights did not exist. But more importantly, I think, is that the position has a sense of entitlement. For example, in the above fact example that spawned this discussion, nobody seems to care about the jazz music, the emphasis is on how we want access to the movie. The only reason we even discuss the jazz music is because it is a roadblock to getting the movie. That impliedly minimizes the music. And if the music is so unimportant, why don't you use other music and bypass the offending author?
It seems that there is more going on, like maybe the music is a key part of the film such that the quality of the film is intrinsically tied to the quality of that particular jazz music. And if this is the case, why should the filmmaker have any right to force the songwriter to license their quality music. And this brings up the main point in my mind. This "problem" is really about wise relationships and partnerships.
When one engages in a creative endeavor with other people, one is engaged in relationships and partnerships. Those relationships and partnerships are going to be directly affected by the personalities and character of the people. In copyright, the law provides only a backdrop of rights and responsibilities--namely, that the author has an exclusive right to their own work. This means the authors can be jerks if they are jerks. And it makes it extremely important that one develops a strong relationship with appropriate contracts, licenses, and negotiations. But, in the end, we are dealing with people, and one is being nearsighted to blame the law for the abuses of the author.
Too often, it seems we want to add a law or change a law because we cannot get what we want from someone, or because that person has used the law to defeat our interests. Copyright law is not the problem in this case. If we have ended up in a society where we have to change the laws in order to make the majority of people reasonable in our own estimation, we, as a society, are beyond any help the law could provide. Furthermore, such thinking is more or less a blame game where we evade taking responsibility for our own actions and decisions.
The filmmaker in the article has partnered with the songwriter and built her film on the back of the songwriter. (If this is incorrect, she should simply change the music and she would have no problem.) She must now engage that author and deal with the consequences.