The U.S. Supreme Court issued an incredibly ill-considered and poorly-reasoned decision last week in Golan v. Holder – one that will cost American orchestras and opera companies millions of dollars and one that does nothing to promote artistic development. The court ruled Congress could retroactively apply copyright protection to works in the public domain. At issue were Iron-curtain works, such as the symphonies of Shostakovich and Prokofiev, not subject to copyright treaties.
The point of copyright is to “promote the Progress of Science and useful Arts” (US Constitution, Article 1, Section 8). Copyright in this country is entirely too long, especially since the passage of the Sony Bono-sponsored “Mickey Mouse Protection Act” of 1999. Although this policy is good for Disney, it negatively impacts classical music. If current copyright law had been in effect in the 19th century, works such as Richard Strauss’s 1886 “Aus Italien” would still be in copyright for another 20 years. Do Hitler’s heirs really need the protection granted to Mein Kampf (1925)?
Recently, I attended a Canadian mimed performance of a pastiche of works by Shostakovich. Such a production would be impossible after the Supreme Court’s ruling because the nonprofit theater company would have to secure permissions from over twenty publishers for quite hefty fees. Publishers are content to sit on their old popular works rather than promoting, commissioning, and publishing new work. I recently purchased a $110 score of Appalachian Spring – 39 pages, paperback, on acidic paper, with performance rights withheld. Copyright is meant to encourage artists to create by giving them reasonable assurance they can profit from their works. Copland has been dead for some time.
And what about freedom of speech? Suppose an artist used Tarkovsky or Eisenstein film clips as part of a video art installation and this came under the disapproval of a newly-protected publisher (usually a media conglomerate). The FBI, armed with the Supreme Court decision, could walk into a museum and tear it out. So much for promoting useful arts…