Progress and Property

From the Deputy Director

By Joan Channick

An ironic consequence of the Sept. 11 terrorist attacks is that Irving Berlin’s "God Bless America" will generate triple its usual $200,000 in royalties this year because of the song’s numerous public performances. Those royalties will go to Berlin’s favorite charities--the Boy Scouts and Girl Scouts.

Originally written for a 1918 revue from which it was cut, the song was revised into its familiar form in 1938, when it became a "peace" song for a world on the brink of war. Two years later, Berlin gave the song’s copyright to a fund established "for the benefit of the youth of America," the God Bless America Fund. The Fund has given royalties amounting to more than $6 million to New York City Scouts organizations that are using this year’s windfall to help children cope with the effects of Sept. 11. "God Bless America" will be under copyright until 2033, so the royalties will continue to flow for many years.

This story offers insight into two cultural policy issues: how long artists’ work is protected by copyright, and how the arts are funded in America.

Artists’ intellectual property rights stem from the U.S. Constitution Patent and Copyright Clause, which provides: "The Congress shall have power…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." The federal copyright law, enacted under this Constitutional grant of authority, provides copyright protection to "original works of authorship." Copyright lasts for a finite term, but the work eventually enters the public domain.

Our country’s attitudes about the arts are rooted in this decidedly capitalistic approach. The Constitutional scheme establishes economic incentives for creativity. Copyright gives authors the exclusive right to exploit and profit from their own work. But the Constitution also recognizes that after a period of time, works should be freely available, allowing people to use, adapt and build upon the earlier creative efforts of others. In the Supreme Court’s words, "Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music and the arts."

The balance struck between these two interests—private incentive and public access—has shifted with the recent 20-year extension of the copyright period. Under the 1998 Sonny Bono Copyright Term Extension Act, copyright terms were extended by 20 years: the author’s life plus 70 years for works created in 1978 or later, 95 years from publication for pre-1978 works, and 95 years from publication or 120 years from creation, whichever expires first, for works made for hire.

The extension brought U.S. law into conformity with other countries, eliminating the absurdity of U.S. authors receiving less protection in their own country than in foreign countries under international copyright treaties. Media corporations that own the copyrights of works created by their employees under the "work made for hire" doctrine, whose valuable properties were about to fall into the public domain, and the heirs of authors, composers and other creators who were still earning royalties from their forebears’ works lobbied for the change.

Opponents of the extension, including one rogue media company, the New York Times, have argued that the term is now too long, far beyond the "limited times" needed to provide an incentive for creation. It’s doubtful that artists are motivated by the prospect of royalties for their great-great-great-great-grandchildren.

The theatre world involves both creators and users of intellectual property. While the revised law provides additional protection for artists who create copyrightable work, it simultaneously imposes an additional financial burden on the theatres, which must pay royalties for the production of plays and the use of music, photographs and other works. Some plays will undoubtedly be produced less often than if they had been allowed to enter the public domain 20 years earlier.

A decade ago, when copyright extension was first debated in Congress and the National Endowment for the Arts was under siege, Robert Brustein proposed that the royalties from an extended term endow the NEA rather than go to authors’ heirs. This provocative idea—a way for artists to support artists and achieve independence for the NEA—could never prevail in a country that regards artists as entrepreneurs, works of art as property, and artists’ rights as primarily economic.

Which brings us back to Irving Berlin, who donated the copyright for a song that would have lasting value to benefit organizations close to his heart. While few playwrights earn enough from their plays to contemplate such a gesture, those few who can afford to do so might consider Berlin’s example. Playwrights might donate or bequeath the copyright of just one of their plays to a theatre that has contributed significantly to their career, or leave the copyright to their families for a period and then to the theatre for the rest of the 70-year period. Playwrights might jointly create an endowment to support young playwrights, funded by the proceeds of donated copyrights, and contribute to the future of their art form. There are precedents; Tennessee Williams and Eugene O’Neill, for example, left portions of their literary estates to the University of the South and Yale, respectively. 

Now if only Irving Berlin had taken the "God Bless America" approach with the royalties from "There’s No Business Like Show Business"….