25 September 2009 — Public Domain
This post is a response to this competition that happened a while ago (via Kottke) The winning concept resonated with me, and this is an attempt to deal with the thoughts I've had about public domain art since then (It's worth reading the Jury comments on the website, which sum up some things I don't bring up in this post).
The idea of art in the public domain is a powerful one, I think. It doesn't just mean that it's free for someone to use, it also means that they don't have any restrictions on how they use it. This is, by itself, a good thing for art. Let's assume that Michael Jackson's music became public domain tomorrow. The recordings would still be covered (under separate laws), so it wouldn't mean everyone would be free to sample those without fear of legal action, although getting the clearances for Jackson's recordings appears to be much easier than for, say, The Beatles. Here are some things that would result:
• Artists wouldn't have to pay, or seek permission, to record their own versions of the songs.
• Artists would be free to incorporate any musical idea found within the songs, without threat of legal action.
• While, like with recordings, specific published versions of the sheet music would still be protected, people would be free to publish and distribute their own transcriptions of the music, even for commercial use.
Some likely implications would be:
• The songs would be used more often in commercials, films, musicals, ringtones, etc, as the costs would be limited to, at most, paying performers to cover the work in question.
• We would hear a lot more music that would obviously incorporate elements of Michael Jackson tunes.
• His music would feature heavily in educational texts.
As a result of these points, you might say that Jackson's music would be overly re-recorded, and used to sell anything, while the brilliance of the original recordings would be diluted by the endless crap surrounding them. Not only that, but artists would unduly profit from Jackson's talents by stealing his ideas to use in their own compositions. These are fair points, possibly, though certainly not the main objection most people would have to art entering the public domain immediately after death (or even before). Musicians, typically, do not earn much money through performing, or even recording, their works. They do, however, earn reasonable amounts of money through royalties, which they wouldn't be entitled to if their work was considered public domain. However, if a work retains currency in popular culture, someone is going to profit from it. If not the composer, through royalties, then it will be the company that uses the song on an advertisement, or the band that records their own version for an album, or a publishing company that sells the sheet music for the songs. Surely the artist, or their estate, should receive some compensation in these situations?
I'm not so sure, but it's a tough question. The thing about the Michael Jackson clock, though, is this:
We live in an era of constant change. Since the advent of sound recordings, the popularity of musical groups has changed dramatically over the course of a couple of years, if not months. Things that are culturally significant now may be completely forgotten in 70 years (the opposite is, of course, possible too). When Michael Jackson's music enters the public domain, who will care? Will young music students, sick of playing Beethoven or Dvorak, get excited by the opportunity to play "Billy Jean"? Will musicians suddenly get to release their song that sets the melody and text of "Smooth Criminal" to something else, something we possibly haven't even heard of? Most likely not, because his music will probably be dead to popular culture.
People of all ages get excited by Michael Jackson. His music (and his dancing and his video clips) inspires us, and it tugs at us and it makes us grin and laugh and cry in wonder, and it compels us to listen! If his music were in the public domain now, it could mean something, it could enable people to more readily tap into their feelings about his music. In 70 years, those people who were fortunate enough to be teenagers when Thriller was released will be over 100. Who does it serve to keep his music copyright until then?