I get a lot of calls to my radio show asking if someone can use “classical” music in a film or podcast or something without permission since it’s so old. Seasoned listeners to Barely Legal Radio know that you can use the composition because it is in the public domain if it is from the classical period (1550 to 1900?) but you must get permission to use copyrighted recordings of these, or any works, regardless of whether they are in the public domain. Somehow this doesn’t sit well with some people.

According to Richard Esguerra from The Electronic Frontier Foundation (EFF), a group is “doing something about this “problem. The organization “Musopen” is raising money from “philanthropists” to create high quality digital recordings of works from masters such as Beethoven and Brahms so that they can “generously” donate these recordings to the public domain so that no one will have to worry about licensing recordings of them ever again.

Does this sound nice to you? If it does, you are forgetting one thing.You are forgetting that if these recordings have some commercial value it creates a market for them which not only employs musicians, it encourages better and better recordings and orchestrations that benefit all of society. Destroy their commercial value, and you destroy a lot more than you realize. (more…)

Last week, a federal judge in New York issued an injunction precluding the publication of a novel based on J.D. Salinger’s “The Catcher in the Rye.”  The new novel, by Swedish author Fredrik Colting, describes the adventures of the elderly “Mr. C,” a not-so-veiled pseudonym for Salinger’s famous “Holden Caulfield.”  The federal court enjoined publication of the book in the United States after finding that it is a likely copyright infringement.  The Salinger lawsuit illuminates a weakness in copyright law that threatens to undermine copyright’s central purpose-promoting creativity.  

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.  (more…)