People not familiar with copyright law might be surprised to hear that McCartney-one-half of music’s most-successful songwriting duo-must pay royalties to perform his own hit songs.  The fact certainly seemed to grate on McCartney, who frequently made mention of it in interviews.  But even more surprising, at least to those not acquainted with the intricacies of copyright law, is that Sir Paul will one day be able to re-acquire the rights to his music without even having to pay to buy them back.

This is true because of the Copyright Act’s reversion provisions, which allow the original author of a copyrighted work to reclaim the work many years after assigning it away.  It is this same right to reclaim lost copyrights that will soon make millionaires of the heirs of Joe Shuster and Jerry Siegel, Superman’s creators, when they conclude their pending lawsuit against Warner Brothers. 

Congress, seeking to protect content creators who sell the copyrights in their works before understanding the works’ true value, inserted in the Copyright Act the right to reclaim a copyright-generally by terminating an earlier assignment-after a certain number of years have passed.  For copyrighted material created before 1978, these rights will most often be available 56 years after the work was created.  So in McCartney’s case, he should be able to reclaim the copyright to a Beatles song first published in 1964 in the year 2020, and he (or, likely, his children) will retain those rights for the final 39 years of the copyright term.  

For newer works-specifically, anything created after January 1, 1978-the original author has the right to terminate a copyright assignment after 35 years.  So, sticking with McCartney, he and Wings released the album “London Town” in 1978.  Assuming he immediately assigned the copyright to the record company-which is common in the industry-he would most likely be entitled to terminate that assignment 35 years later, in 2013.  These reversion provisions, then, will become an important news item in the coming years, when composers, authors, artists, and other content creators begin to reclaim works they created and assigned away in the late 1970’s.  Because of the complexity of the reversion provisions, these efforts to reclaim copyrights will no doubt spawn dozens of high-profile lawsuits as well. 

There are media rumors that Jackson has left to McCartney the publishing rights in Jackson’s Beatles catalogue.  If so, we may never see the coming legal clash between two of music’s biggest superstars.  But thanks to the Copyright Act, even if Jackson left the rights to somebody else, Sir Paul may still get his music back soon enough.

J.D. Salinger

American law differs from law in Europe (and elsewhere) by not granting-except in limited cases-any “moral rights” to the creator of an artistic work.  Moral rights are designed to protect the integrity of a work; for example, moral rights could stop a television station from editing a movie in ways the director believes undermine his artistic vision.  Copyright law, however, has no such interest.  The Copyright Act rests on Congress’ authority under the United States Constitution “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  Thus, the purpose of copyright law is to encourage creativity by giving artists, authors, and others the exclusive right to benefit from their creative efforts for a limited period of time. 

Copyright law, then, incentivizes the creation and dissemination of new works.  Without copyright law, U2 might not make music.  And even if they did, the band might not make any effort to disseminate the work publicly; there would be little or no economic incentive to do so since the songs could lawfully be copied and distributed by others for free.  But with copyright law, U2 has reason to make its works available worldwide, and now the means to own half of Ireland. 

There are, of course, limits to the temporary monopoly given to copyright authors.  Some uses of a copyrighted work are deemed fair, and thus lawful, even without permission from or payment to the copyright author.  Because of this “fair use” doctrine, I can sing “Happy Birthday”-a copyrighted musical composition-to my daughter without being liable for copyright infringement.  The “fair use” doctrine makes copyright law workable-without it, we would all be engaged in a string of infringing acts every day of our lives-and it is the primary issue in most copyright lawsuits.

But in many cases, application of the “fair use” doctrine has become divorced from the purpose of copyright law.  The Salinger case looks like the latest example.  Because of case law, the parties there will focus a great deal on whether Colting’s work is a parody of Salinger’s work, because the Supreme Court has held that parody-using a copyrighted work to the extent necessary to criticize or mock it-is entitled to substantial First Amendment protection.  But before a court even gets to that question, a more fundamental inquiry is in order: Does allowing novels like Colting’s undermine copyright’s goal of encouraging creative works?  It is not clear that it would.  Colting’s work would not harm the economic value of Salinger’s; it is hard to believe that people will see his work as a substitute for “The Catcher in the Rye” and buy the former instead of the latter.  If anything, Colting’s work would likely increase Salinger’s sales.  Thus, it is virtually impossible to imagine that allowing another author to borrow from Salinger’s work in a new novel would have dissuaded Salinger from writing and publishing “The Catcher in the Rye” in the first place.  Applying copyright law to Colting’s novel appears unnecessary; Salinger would likely have written and disseminated “The Catcher in the Rye” regardless of whether the Copyright Act allows Colting’s work to be published. 

We can sympathize with Salinger’s desire to keep other authors from using his characters and novels in ways he does not like.  But copyright law is not supposed to have an interest in Salinger’s desire to shield his work from disrespectful treatment or use by artists that Salinger believes are unworthy of his masterpiece. 

We are left, then, with an ironic and unfortunate result: a law that is designed to encourage creative works has been used to stifle one author’s creativity-to ban his book, at least temporarily-even while the decision would do nothing to encourage creative works by Salinger.  In this case, it seems, copyright law has failed.

What, exactly, is the principle that Moakler must resign to protect?  It likely has nothing to do with the scandal over Prejean’s topless photos, since Moakler has shown far more of herself in Playboy.  No, Moakler’s concern is Prejean’s insistence on pressing a political agenda: “In the entire history of Miss USA, no reigning titleholder has so readily committed her face and voice to a more divisive or polarizing issue.” 

Carrie Prejean with Shanna Moakler

Funny – I don’t recall Prejean injecting the issue of same-sex marriage into Miss USA; the blame for that falls in the lap of celebrity judge and gay activist Perez Hilton, a man best known for decorating celebrity photographs with bodily fluids and infantile commentary.  Prejean did not cause this conflagration.  It must be clear to everybody-even Moakler-that she would have preferred to avoid the question entirely.  

It is not Prejean’s fault that she became a spokesperson on same-sex marriage.  But Moakler isn’t upset that Prejean is speaking out on the topic.  Not really.  Moakler herself has taken a very vocal position in favor of same-sex marriage.  Recently, she even posed for an advertisement with two other beauty queens, all three with mouths taped shut, presumably to make the point that somebody-it isn’t entirely clear who-is muzzling them on the subject of same-sex marriage.  

Moakler’s advertisement is ironic, even if she will never understand that.  The idea that gay-rights activists are somehow being muzzled from speaking their minds is beyond absurd.  Hilton-the other major player in this drama-has certainly been able to speak his.  He intentionally injected this issue into the pageant and, having prompted an answer he didn’t like, published a profanity-laced tirade trashing Prejean.  Yet Hilton’s post-pageant invective-delivered with all of the class and grace we’ve come to expect from Hilton-did not cause Moakler to resign.  Moakler’s children can apparently handle mom’s association with people who speak about young women in such a degrading fashion.  

What they cannot handle, it seems, is Moakler’s association with a young woman who had the temerity-the gall!-to answer a question she did not want to answer, on an issue she did not want to address, in a way consistent with the overwhelming opinion of the American people.  Had Prejean simply lied-had she simply given Moakler, Hilton, and the rest of the gay-rights lobby the answer they demanded-she might be Miss USA today.   

And that, of course, is exactly what Moakler and Hilton want.  They have not been muzzled, and there is no threat that they will be.  It is they who are looking to muzzle us, us being anybody who does not agree with their desire to impose same-sex marriage on a skeptical public.  Those who disagree must be punished.  Prejean has been.  But with Trump letting Prejean keep her Miss California title, Prejean’s public humiliation will not be fully complete in Moakler’s eyes, nor in the eyes of the other activists who simply want to shut down the debate and declare themselves the winners.  

Moakler has resigned from the Miss California organization.  I hope the people of California can somehow manage to survive without her.

Don Henley makes no effort to hide his political leanings.  In addition to performing at scores of fundraisers, Henley has given about $750,000 to partisan, liberal causes, including $10,000 to Barack Obama and $9,000 to DeVore’s soon-to-be opponent, Barbara Boxer.  Henley also exploits his music to advance a liberal, political agenda. 

Henley’s “Boys of Summer” is no exception.  On the surface, “Boys of Summer” is a wistful look at an old romance, a fling between two kids, now grown, who have moved on with their lives.  But the song also has a clear political message.  Henley says that the second verse of the song-the one with the famous line about seeing “a Dead Head sticker on a Cadillac”-was about the essential failure of Sixties’ politics: “I don’t think we changed a damn thing, frankly….  After all our marching and shouting and screaming didn’t work, we withdrew and became yuppies and got into the Me Decade.” 

DeVore and Hart’s parody turns “Boys of Summer” on its head.  It substitutes Barack Obama for the singer’s love interest and has Henley (and other outspoken celebrity liberals) dreaming wistfully of the time before President Obama’s election: “We will never forget those nights/ We wonder if it was a dream/ Remember how you made us crazy?/ Remember how we made you beam.”  The song asks whether the parties’ naïve love affair can survive the circumstances since, particularly President Obama’s broken promises and failure to deliver on the promised “hope.” 

DeVore and Hart’s parody is not for everybody.  Hart’s vocal performance may not be for anybody.  It may be bad art.  But it’s not copyright infringement.  As Henley’s own lawyer puts it, “[T]he purpose of copyright law is to encourage the production of new, original works….”  But  DeVore and Hart have done nothing to discourage the creation of new, original works.  They have not reduced the value of Henley’s song; they have not made Henley or anybody else less likely to create pop songs in the future.  Copyright law has no legitimate interest here.   

But the First Amendment does.  This country was, in Lincoln’s famous phrase, “conceived in liberty,” and our national constitution contains a very clear protection of every Americans’ right to speak freely.  This protection applies with special importance to political speech.  DeVore and Hart’s parody is core political speech, a creative effort to reach voters with a message.  Don Henley is free to dislike the parody.  Everybody is free to dislike the parody.  But nobody has the right to suppress DeVore’s speech. 

Chris Arledge is a partner of Turner Green LLP, an Orange-County based intellectual property firm.  He represents Chuck DeVore and Justin Hart in the Don Henley lawsuit.  He can be reached at carledge@turnergreen.com.