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Blurred Lines: Are Music Copyrights Becoming Patents?
Without patents or copyrights, “idea space” would be a commons. “Idea space” is the realm of potential ideas. A patent and a copyright both permit their owner to declare a region of “idea space” his own private property for a period of time, but under different terms. A copyright encloses a particular expression of an idea and was originally intended to prevent, well, copying during the duration of the copyright. A patent encloses not just one particular expression of an idea, but the idea itself, declaring all other expressions of the same idea, whether they’re copies or not, off-limits for the duration of the patent. A patent is thus a much broader right than a copyright, enclosing a far larger region of the intellectual commons than does a copyright; consequently, a patent inhibits others’ right to stake their own claim in idea space much more than a copyright does.
Copyrights have been expanding. Complaints about the increasing length of the copyright period are common. More problematic, though, is copyrights’ increasing breadth. As a copyright expands to inhibit expressions which aren’t fairly obviously copies, it becomes more like a patent in its scope, enabling rent-seeking and inhibiting creativity. This appears to be happening in the music industry. In March 2015, the creators of the hit “Blurred Lines” were convicted of infringing the copyright on Marvin Gaye’s “Got to Give it Up.” This is a blow to unoriginal songwriters everywhere. Worse, it does a lot of collateral damage in the process. As a “Blurred Lines” defense attorney put it, “This ruling elevates ‘groove’ and ‘feel’ to the level of copyright infringement.” Forensic musicologists and lawyers can expect to profit from such expansion, but artists – and listeners – can expect to suffer.
It’s possible to compose many songs with the same “groove” and “feel,” none of which are copies of one another in any meaningful sense, and many of which may be worth listening to. It makes no sense to declare the first person to publish a particular musical “groove” the owner of that “groove”, entitled to a cut of the profits from music which is not, in fact, a copy of his song, but merely “sufficiently” similar according to some costly and laborious vetting process. Unlike patents, copyrights aren’t supposed to be that costly to vet.
David Friedman, in his “Law’s Order,” explains the rationale for treating copyrights and patents differently as follows:
Providing an incentive to write books or make inventions is one obvious purpose of intellectual property law. What we want however, as I have pointed out before, is not merely an incentive but the right incentive. The gain to the producer of intellectual property should be at least a rough measure of the value to other people of what he produces in order that he will bear the costs of producing it if and only if it is, on net, worth producing.
When I write a book and enforce my copyright on it, I make it difficult for another author to write the same book; although independent creation is a defense against the charge of infringement, it is, in practice, difficult to prove. I have taken a tiny bit of property out of the commons: the opportunity to write that book. But the number of books that can be written is so enormously larger than the number that will be written as to make what I have taken worthless to anyone but me—nobody else was going to write that book.
…I can ignore the effect of my copyright on the opportunities available to other writers. They lose nothing through not being permitted to write my book, since they wouldn’t have written it anyway.
The same is not true when I make an invention. The opportunity to invent something is often quite valuable, as demonstrated by patent races in which two or more teams are competing to make and patent the same invention. The first team to make the invention gets the patent and collects seventeen years of royalties. But if the second team would have made the invention six months later, the social value of the first team’s work is six months of the invention, not seventeen years. The commons that the inventor depletes is very much more depletable than the commons depleted by the writer. It follows that the gain to the inventor may in part consist of a transfer from others who might have invented the same idea a little later. So patent royalties may over reward the inventor, providing too much incentive to make and patent new invention. If so, invention becomes in part rent seeking, an expenditure of resources by one actor in order to obtain benefits at the expense of another.
Putting all these arguments together, we get a simple explanation for the observed laws. Copyright protection against literal copying creates a form of property that is easy to define, cheap to enforce, relatively easy to transact over, and subject to no rent seeking problem. Hence we give copyright easily and for a long term. Patent protection creates a form of property that is hard to define, hard to enforce, costly to transact over, and contains a potential inefficiency due to patent races leading to duplication and inefficiently early inventions. Hence we give patents grudgingly and for a short term.
If copyrights remained easy to define, cheap to enforce, relatively easy to transact over, and subject to only negligible rent-seeking, then having copyrights last longer than patents would make sense. Even under such narrow terms, we wouldn’t want to extend the copyright period to ridiculous lengths. Nonetheless, the length of copyright is supposed to reflect its narrow breadth and ease of enforcement, while the brevity of a patent reflects its much wider breadth and difficulty of enforcement. When copyrights expand in breadth as well, increasing copyright length becomes much more pernicious. Taken to extremes of length and breadth, a copyright would become a perpetual patent and an inexhaustible opportunity for rent-seeking.
“Blurred Lines” isn’t a copy of “Got to Give it Up” in any reasonable sense. “Look and feel and cowbells” does not a copy make. Listen for yourself if you’re unsure. In the meantime, though, parodies remain fair use:
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Published in Law
I suspect it wasn’t previous composers’ originality up to this point, but rather their acceptance that pieces within the same genre could sound a lot a like without being thievery, which kept suits to a low roar before now. Besides, we (or at least I) don’t know how often these suits have simply been laughed out of court, no matter what a musician claimed. I am surprised that this suit was not, and the jury awarded the plaintiff.
Well, surprised and not-surprised. Juries are often quite generous to plaintiffs over stuff outsiders find rather absurd.
On the one hand, we say copyrights should exist for the life of the author plus a few years (or 70 years now). We also say that corporations have the same rights as individuals. Given how many people are involved in the making of Disney’s stories, it’s hard to say that the author isn’t the corporation as a whole. Taking this to its logical conclusion, Disney (and other corporations that produce content) should be able to hold its copyrights as long as the corporation is alive.
On the other hand, that could extend a copyright for a really, really long time. And that has problems too, especially if the breadth of copyright protection is expanding as the OP suggests. And with the constant chipping away of fair use exceptions, that really limits what can be done.
Obligatory link to Melancholy Elephants.
Good point, and if that were the case, every creator of copyrighted material should label his work as published by a corporation consisting of “his estate”, so that the copyright can be kept alive as long as the estate can be kept alive.
Corporate persons don’t have to be treated identically to natural persons to be recognized as persons before the law. Specifically, corporations aren’t, as far as I know, assumed to be alive in the biological sense. If the standard were “life of the original creator(s) in question as biological unit(s) or X number of years, whichever is longer”, corporations might get the “X number of years”. Or, all creators (natural and artificial persons both) might hold their copyright for a generous-but-not-ridiculous number of decades, then it expires, whether or not they’re sill alive.
Whatever the details, something longer than a patent, but shorter than several generations, seems reasonable.
Wait’ll somebody sues over a back beat.
The thing to consider I think is this. Who owns the culture? Disney is a corporation its characters are owned by that corporation and serve as its symbols, but this company and its products also serve as a major part of the larger culture from which they emerged. Mickey Mouse may belong to Disney, but I think he also belongs to the American culture at large and with time and exposure I think he becomes more the property of the culture than that of its creator. No one owns the Odyssey though we all acknowledge its author. No one owns Shakespeare either. Walt Disney’s creation may not be at the level of Shakespeare or Homer, but in time they may well be, just as Shakespeare was not at the onset on the same level as Homer in Western literature, but now undoubtedly is. I actually think that by keeping copy rights for so long the companies are hindering the cultural growth of the art they own and by doing so dishonor the artists that created them.
It seemed to match my (second-hand, admittedly) knowledge rather well. You were rather specific.
Everybody in Celebrityville wants us to be like Europe, so why don’t we just do like was done in Europe: Set up a landed aristocracy with inheritable, non-alienable property and titles of nobility to be passed down through the generations forever.