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The not-quite-sure-if-it’s-public domain: Prokofiev, Joy Division, and confusion over who can do what for how much money

I recently finished jury duty, and I’ve been in a bit of a jurisprudential kinda mood ever since.

Given all of the recent brouhaha about SOPA (and yes, it was definitely a brouhaha — not a kerfuffle and much bigger than a hubbub), I’m a bit surprised that there hasn’t been more discussion in the classical music blogosphere about the recent U.S. Supreme Court decision about intellectual property rights.  It’s not every day that Prokofiev and  “Peter and the Wolf” are mentioned directly by the justice writing the majority opinion.

If you want to know why there’ll be less Shostakovich or Stravinsky or Bartok being performed in the future, you’ll want to read more below.

Coincidentally, the past week also saw a different sort of musically-related intellectual property dust-up, this time involving Disney (the corporation, not the concert hall) and the fans of the post-punk band, Joy Division.  The folks at Disney are no strangers to intellectual property battles; however, this time was a little different. . . .


Just to make sure everyone’s on the same page, let’s talk about the difference between works that are public domain and those that aren’t.  The most important difference to everyone involved is this:  pieces in the public domain — like those by Mozart or Mahler or Francis Scott Key — are free to perform.  Pieces that are still covered by copyright protection, and therefore not in the public domain — like those by Gershwin or Ligeti or Elvis — are decidedly not free, and performers are required to pay royalties.

One lesser known example:  that little ditty we all sing at birthday parties — Happy Birthday to You — is surprisingly NOT in the public domain.  You want to use it in a movie or on TV?  Probably going to cost you  a few hundred dollars.  The Walt Disney Company allegedly paid $5,000 to use the song at EPCOT on a ride that doesn’t even exist anymore (maybe that is what these guys are playing).

Over the past few decades, the U. S. Congress (and its European counterparts) has been slowly extending copyright protection.

  • Between 1909 and 1976, a composer or writer in the U. S. would have exclusive rights to his/her work for a total of 56 years after its publication.
  • By 1998, the rights extend for 70 years after the death of an individual; for corporations, they get 125 years after creation or 95 years after publication, whichever came first.  The late Sonny Bono, entertainer and lawmaker, sponsored the bill and it has often been referred to as “The Sonny Bono Act.”    The Walt Disney Company lobbied heavily for the bill, leading opponents to refer to it pejoratively as “The Mickey Mouse Protection Act.”

Lawrence Golan

The real stickler was an additional law Congress passed in the mid-90’s taking works that had been in the public domain and withdrew them.  Though the law covered all sorts of copyrighted material (e.g. books, films), it has a particularly musical bent because the lead person who contested the case was Lawrence Golan, conductor and music educator.

Mr. Golan took issue with the fact that works that had been free for him to perform all of a sudden cost some serious money.  (A very good article about his point of view is HERE; an interview with him before the decision was rendered is HERE)

That brings us to Golan v. Holder, the Supreme Court case in question.  For those of you unfamiliar with it, the short version is this:   can works that are already in the public domain be withdrawn from the public domain on the whim of Congress?  According to a 6-2 decision by the Court, the answer is, “Yes.”  (Justices Breyer and Alito dissented).  Here’s a snippet from an article from The New York Times on the ruling:

The precise number of affected works is unknown but “probably number in the millions,” Marybeth Peters, the United States register of copyrights, said in 1996. . . .

Justice Ruth Bader Ginsburg, writing for the majority, said the law had merely put “foreign works on an equal footing with their U.S. counterparts.”

“Assuming a foreign and domestic author died the same day, their works will enter the public domain simultaneously,” she wrote. She gave examples.

“Prokofiev’s ‘Peter and the Wolf’ could once be performed free of charge,” while now, she said: “The right to perform it must be obtained in the marketplace. This is the same marketplace, of course, that exists for the music of Prokofiev’s U.S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U.S. concertgoers.” (Adam Liptak, The New York Times; January 19, 2012)

While I agree that Congress is perfectly entitled to do this and that the long term results may be good, I think the short term result is quite sad.  Most of these composers are already underrepresented on many orchestra’s programs, and now there is a new reason for budget strapped orchestras to ignore them.  I feel sorry for classical music fans in places where that may happen.  Unless copyright holders are willing to make accommodations, the biggest losers will likely be educational institutions of all kinds and those wanting to present children’s concerts.  Mr. Golan stated:  “We used to be able to buy it for $100 and then play it for children’s concerts morning after morning after morning, with busloads of kids taken to the auditorium every day. And all of that for that $100 purchase.”



The Walt Disney Company has been a vigorous defender of its copyrights.  So it was a bit amusing to watch the fallout that occurred after it decided to sell a t-shirt apparently inspired by the iconic album cover to “Unknown Pleasures” by Joy Division.  The blogosphere of Joy Division fans and Disney haters went ballistic.  Disney pulled the shirt shortly thereafter.  Many people revel in the irony that one of the biggest enforcers of their own intellectual property gets slammed for allegedly violating someone else’s rights.

The real irony, however, is that despite all the noise being made combined with Disney’s reaction to it, The Mouse wasn’t actually violating anybody’s copyright:  Joy Division had taken their album cover from an image in the public domain from the Cambridge Encyclopedia of Astronomy:

The “Unknown Pleasures” album art didn’t include any other identifying information on the front cover, so it’s a rare occasion of an instantly recognizable cover that anyone is, essentially, free to repurpose. The Disney shirt, while claiming to have been inspired by Joy Division, doesn’t use the band’s name on the item, so there’s not much the band could even do to contest it (even if the branding wisdom of Disney appropriating an image associated with a rock band defined by sonic bleakness and its young singer’s suicide is debatable).  (August Brown, Los Angeles Times; January 24, 2012)

On top of that, Joy Division fans have collectively been the biggest violators of the band’s intellectual property rights — bootleg recordings of their concerts were circulated, bought, and sold back in the days before MP3s and the internet, back when these things required real effort (not that I have first hand knowledge of this whatsoever.  Really, that wasn’t me).  Hi, Pot;  meet Kettle, and feel free to call/text him at B-L-A-C-K.

As he told the Los Angeles Times (HERE) and Rolling Stone (HERE), Peter Hook — bassist for Joy Division and its 80’s scion, New Order — makes it clear that he finds the whole thing rather amusing.

As for me . . . I thought the shirt was one of the best pieces of merchandise that Disney has done in a long, long time.  I might have actually bought it.    I guess I’ll have to wait until Disney decides to pay hommage to Oingo Boingo’s “Only a Lad” EP cover — um, I mean the guy who painted the psychedelic cat that they used on the cover.   Does anyone know if it’s in the public domain or not?

One thought on “The not-quite-sure-if-it’s-public domain: Prokofiev, Joy Division, and confusion over who can do what for how much money

  1. Hi there, the kitty was drawn by Louis Wain “he’s dead Jim” (5 August 1860 – 4 July 1939), much of what is going on it seems is greed, it seems, closer inspection shows that for many years people have been using creative works without compensating the artist or their families in any way. The first artist I think of is a writer who was named David Eddings (great books BTW) he was asked during the “Potter Craze” did he want his books to be tuned into a major motion picture. He told them NO that they would ruin the characters. If the law were not in place his wishes have less of a chance of being honored. So yea what they pulled with the classical music blows but …. it is what it is.


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