Welcoming Recorded Music to the Public Domain(blog.archive.org)
blog.archive.org
Welcoming Recorded Music to the Public Domain
https://blog.archive.org/2022/01/01/welcoming-recorded-music-to-the-public-domain/
31 comments
Interesting link, thanks for sharing!
Per that article and one it links to, there seems 100 year old (1922) and 50 year old (1972) music to be coming into the public domain, and I'm wondering why this happens in bulk on January 1st and not x years after whatever release date mid-year?
I don't remember ever seeing a copyright date more granular than the year, in any copyright notices on blogs and source code.
From everything I've ever heard, copyright notices don't mean a lot though, in that regardless of if I put one on my website or not, I still have a copyright on my works.
Well, at least in the US, copyright wasn't automatic until 1978, which is important context when discussing works from 50 or 100 years ago.
So what has Disney done this year to contort our public domain laws?
Nothing new so far, Steamboat Willie isn't scheduled to enter the public domain until 2024. And considering only the properties that Disney actually cares about, Snow White has until 2032.
Let's also keep in mind the difference between copyright and trademark; even if art containing Mickey Mouse enters the public domain, that doesn't mean that Disney loses the trademark to Mickey Mouse. AIUI you would be able to reproduce Steamboat Willie verbatim, but if you attempt to publish a new work derived from Steamboat Willie that includes Mickey Mouse they may be able to stop you based on trademark protections.
Let's also keep in mind the difference between copyright and trademark; even if art containing Mickey Mouse enters the public domain, that doesn't mean that Disney loses the trademark to Mickey Mouse. AIUI you would be able to reproduce Steamboat Willie verbatim, but if you attempt to publish a new work derived from Steamboat Willie that includes Mickey Mouse they may be able to stop you based on trademark protections.
I think including a "Not official Disney merchandise" warning would get past any trademark concerns, since the goal of trademarks is preventing confusion between similar products.
> AIUI you would be able to reproduce Steamboat Willie verbatim
The cynic in me suspects that even this might be challenged. Is there anything specifically preventing trademark protections from applying to unauthorized verbatim reproduction, and only derived works?
The cynic in me suspects that even this might be challenged. Is there anything specifically preventing trademark protections from applying to unauthorized verbatim reproduction, and only derived works?
The goal of trademark is to protect one's reputation by preventing other people from attributing work to you that you did not authorize. Disney unambiguously did authorize Steamboat Willie and its representation of Mickey Mouse, so a verbatim reproduction clearly cannot cause consumer confusion. Trademark law does not need to specifically prevent it, because there's no trademark violation in the first place. Only once you start making unauthorized changes to the source material does there start to be an argument that you are threatening Disney's reputation.
Of course, just because using trademark in this way is nonsensical doesn't mean that Disney won't try and/or succeed. But it would be pretty outrageous. The only reason to entertain this notion at all is because Disney's past actions regarding copyright have been outrageously evil to begin with.
Of course, just because using trademark in this way is nonsensical doesn't mean that Disney won't try and/or succeed. But it would be pretty outrageous. The only reason to entertain this notion at all is because Disney's past actions regarding copyright have been outrageously evil to begin with.
> The goal of trademark is to protect one's reputation by preventing other people from attributing work to you that you did not authorize.
I wouldn't put it that way. Trademark [0]:
* Identifies the source of your goods or services. * Provides legal protection for your brand. * Helps you guard against counterfeiting and fraud.
> consumer confusion
Yes, preventing consumer confusion is an important reason for trademark laws to exist, as a protection against counterfeiting and fraud.
[0] https://www.uspto.gov/trademarks/basics/what-trademark
I wouldn't put it that way. Trademark [0]:
* Identifies the source of your goods or services. * Provides legal protection for your brand. * Helps you guard against counterfeiting and fraud.
> consumer confusion
Yes, preventing consumer confusion is an important reason for trademark laws to exist, as a protection against counterfeiting and fraud.
[0] https://www.uspto.gov/trademarks/basics/what-trademark
> Nothing new so far, Steamboat Willie isn't scheduled to enter the public domain until 2024. And considering only the properties that Disney actually cares about, Snow White has until 2032.
It makes me wonder if they will push DeSantis for president just to extend copyright?
It makes me wonder if they will push DeSantis for president just to extend copyright?
No. The last major term extension was a perfect storm of Germany, Disney, and everyone else in the industry bullying around the EU and US to go life+70. Mickey Mouse was also arguably one of Disney's flagship works back then. This was also in a world where copyright was a boring part of the law nobody cared about except the people who benefited from it's imposition.
This isn't really the case anymore:
- Copyright law was already harmonized up. There are very few countries that regularly grant longer terms: Mexico, Columbia, Jamaica, St. Vincent and the Grenadines, Samoa, and Equatorial Guinea. None of those countries are international dealmakers and I do not see the US or EU raising terms to match them.
- Disney's flagship properties aren't Disney works anymore. They're the Star Wars and Marvel universes. Those have greater cultural cachet, remaining copyright terms to match, and Disney owns them lock, stock, and barrel. Snow White isn't even their own work; it's a German folk tale that the Brothers' Grimm made a children's version[0] of, a century prior to Disney's animated adaptation. The characters and story are already public domain, Disney only owns an animated adaptation of it.
- In the sense that Disney might not fully control the Marvel Cinematic Universe, they stand to benefit by weakening copyright (so they can stop having to share Spider-Man with SONY), not extending it.
- There's less appetite among other creators for longer terms. The big hot-button issue with authors is the market power of large platforms; the sort of thing that can't be fixed by just lengthening terms out more. Furthermore, the Sonny Bono act was pushed through with a promise that the extra licensing money publishers got would result in more artists getting more money; this has not happened and I don't think they'll get fooled again.
- Stop SOPA/PIPA happened. Furthermore, thanks to a combination of YouTubers having terrible copyright discipline and actual scammers using DMCA 512 as an extortion mechanism; there's far more public awareness of the downsides of having strongly-enforced copyright laws.
[0] Ironically, the Grimm versions of these fairy tales are perceived as more "hardcore" and "uncensored", mostly because Disney softened them down more.
This isn't really the case anymore:
- Copyright law was already harmonized up. There are very few countries that regularly grant longer terms: Mexico, Columbia, Jamaica, St. Vincent and the Grenadines, Samoa, and Equatorial Guinea. None of those countries are international dealmakers and I do not see the US or EU raising terms to match them.
- Disney's flagship properties aren't Disney works anymore. They're the Star Wars and Marvel universes. Those have greater cultural cachet, remaining copyright terms to match, and Disney owns them lock, stock, and barrel. Snow White isn't even their own work; it's a German folk tale that the Brothers' Grimm made a children's version[0] of, a century prior to Disney's animated adaptation. The characters and story are already public domain, Disney only owns an animated adaptation of it.
- In the sense that Disney might not fully control the Marvel Cinematic Universe, they stand to benefit by weakening copyright (so they can stop having to share Spider-Man with SONY), not extending it.
- There's less appetite among other creators for longer terms. The big hot-button issue with authors is the market power of large platforms; the sort of thing that can't be fixed by just lengthening terms out more. Furthermore, the Sonny Bono act was pushed through with a promise that the extra licensing money publishers got would result in more artists getting more money; this has not happened and I don't think they'll get fooled again.
- Stop SOPA/PIPA happened. Furthermore, thanks to a combination of YouTubers having terrible copyright discipline and actual scammers using DMCA 512 as an extortion mechanism; there's far more public awareness of the downsides of having strongly-enforced copyright laws.
[0] Ironically, the Grimm versions of these fairy tales are perceived as more "hardcore" and "uncensored", mostly because Disney softened them down more.
At this point, it's not a question of whether or not they need to buy off politicians of either party, who will pass pretty much anything asked for. It's a question about the Supreme Court, which has so far upheld the extensions but has showed signs of being increasingly crabby about them. But so far it's all words.
They'd have to get a law passed, control of the White House wouldn't be enough. I don't think they could get a copyright extension through again because the issues are better understood now and it couldn't be done quietly.
It's probably cheaper to just pay off all the necessary politicians.
Copyright law in the US has a preemption clause specifically intended to prohibit people from constructing copyright-shaped legal claims out of things that aren't actually copyrightable[0]. So you probably couldn't sue someone for trademark infringement purely because they stuck a hypothetically public domain Mickey Mouse in an otherwise unrelated book, or remixed the crap out of Steamboat Willie. As long as you avoided implying that your work was an official Disney product, they probably wouldn't have a claim.
What you would have to worry about is the split between public-domain Mickey and copyrighted Mickey. The minimum standard for copyright infringement is access plus substantial similarity, so you'd have to make sure to either...
1. Only ever watch public-domain Mickey Mouse shorts, and hope nobody can argue access to the still-copyrighted works. This sort of sequestration would be rather difficult to pull off; though fortunately the whole "inverse ratio" nonsense that got Katy Perry in trouble has been overturned.
2. Intentionally watch all of the copyrighted shorts and use that knowledge as a guide of "what not to do". What actually constitutes substantial similarity is rather difficult; it's typically something juries decide on a case-by-case basis.
You'd be best protected if you were doing something entirely different to what Disney was doing with his[1] own characters. The idea behind substantial similarity is that if I can squint at your copy a little and see the copyrighted original, then you're not legally distant enough to be a separate work. So you want to make sure to keep novelty in mind when reusing old Disney works. Things that would be "obvious to try" likely have already been tried and are thus still under copyright[2].
[0] The intended target of copyright preemption was actually state law; pre-1973 states had their own legal regimes for sound recordings which didn't get struck down until just today. Interestingly enough these common-law sound recording regimes also sidestepped the whole "for limited times" things and were actually perpetual in some states. That's why so much music is hitting the public domain today.
[1] Historians of early American animation would probably argue that Disney did not create Mickey Mouse, but that Ub Iwerks did. This is correct; but you must also remember Walt Disney's villain origin story of having Ub's prior work on Oswald taken from him. Disney insisted on copyright assignment or work-for-hire status for everything afterwards, and that's what actually matters legally.
[2] This is the same reason why it's legally perilous to use public-domain Sherlock Holmes as a character; the stories where Arthur Conan Doyle decided to let Sherlock emote are still under copyright, so the character's emotions are copyrighted, too. This is an absolutely silly legal argument that the Doyle estate has actively pursued in court.
What you would have to worry about is the split between public-domain Mickey and copyrighted Mickey. The minimum standard for copyright infringement is access plus substantial similarity, so you'd have to make sure to either...
1. Only ever watch public-domain Mickey Mouse shorts, and hope nobody can argue access to the still-copyrighted works. This sort of sequestration would be rather difficult to pull off; though fortunately the whole "inverse ratio" nonsense that got Katy Perry in trouble has been overturned.
2. Intentionally watch all of the copyrighted shorts and use that knowledge as a guide of "what not to do". What actually constitutes substantial similarity is rather difficult; it's typically something juries decide on a case-by-case basis.
You'd be best protected if you were doing something entirely different to what Disney was doing with his[1] own characters. The idea behind substantial similarity is that if I can squint at your copy a little and see the copyrighted original, then you're not legally distant enough to be a separate work. So you want to make sure to keep novelty in mind when reusing old Disney works. Things that would be "obvious to try" likely have already been tried and are thus still under copyright[2].
[0] The intended target of copyright preemption was actually state law; pre-1973 states had their own legal regimes for sound recordings which didn't get struck down until just today. Interestingly enough these common-law sound recording regimes also sidestepped the whole "for limited times" things and were actually perpetual in some states. That's why so much music is hitting the public domain today.
[1] Historians of early American animation would probably argue that Disney did not create Mickey Mouse, but that Ub Iwerks did. This is correct; but you must also remember Walt Disney's villain origin story of having Ub's prior work on Oswald taken from him. Disney insisted on copyright assignment or work-for-hire status for everything afterwards, and that's what actually matters legally.
[2] This is the same reason why it's legally perilous to use public-domain Sherlock Holmes as a character; the stories where Arthur Conan Doyle decided to let Sherlock emote are still under copyright, so the character's emotions are copyrighted, too. This is an absolutely silly legal argument that the Doyle estate has actively pursued in court.
IIRC, recently when works started entering the public domain again, one of the large Copyright orgs essentially said “We don’t think we could get an extension through congress this time around, so we’re not going to try.”
I was curious as to how much music is in the public domain with a per year breakdown. Equally, how much is released straight into the public domain per year these days compared to older copyrighted material lapsing into the public domain.
Alas a quick search yielded nothing standout at all data wise.
Alas a quick search yielded nothing standout at all data wise.
So what software can be used to clean up the hissing and cracking?
These days, there are more audio plugins to add hissing and cracking than remove it; but iZotope RX is scarily good and the best noise removal plugin I've ever tried. ML has enabled a lot of pretty revolutionary capabilities in audio, songwriting, and music production over just the past couple years.
Adobe Audition is good for this, but I'm sure other free offerings like Audacity can do it. In Audition you can sample a quiet section of the audio to fingerprint the type of noise and then apply that noise reduction across the whole track.
Audacity has the same "fingerprint" feature for noise reduction and it works pretty well.
I'm curious how https://jmvalin.ca/demo/rnnoise/ would do. Might work.
Audacity
foxhop(1)
At Google, I was running the Cinema Club (in-person only showings of movies on DVD every Thursday night). I came across this movie and loved it. It had 4 stars from Roger Ebert. How you gonna beat that? Lots of people including me wanted to show it at Google.
It turns out that Ms. Paley had figured her 12 songs from the 1920s must be out of copyright, right? Wrong. The songs were not, and the publisher asked for (if memory serves) $40K or so per song.
Rather than negotiate it down and use that 4-star review to make $$$ from it, she did this Creative Commons thing. But you can't give away what you don't own.
Google's lawyer said No. She did some more complicated stuff, and the lawyer said "I've spent an hour trying to figure this out, and it's way more time than I should spend. So: still No."
It's a fun movie, though. Watch it.
[1] https://www.sitasingstheblues.com/