Wednesday, August 09, 2006

Disco Inferno Hell

One of my all time favorite movies is the 1980 "Airplane," with Leslie Nielsen (Dr. Rumack), Robert Stack (Rex Kramer), Julie Hagerty (Elaine) and Robert Hays (Ted Striker; says that David Letterman screen tested for the Striker role). The movie is perfect (except for lots of continuity gaffes), and shows the best comedy can be played straight. Who can ever forget Barbara Billingsley taking jive (link to wav file here), or the bar fight between the Girl Scouts? I particularly love and did so even more when it came out, the scene near the end when the airplane knocks off the antenna for the disco station. If there ever were people who deserve their own rung in Dante's Hell, it is those people involved in foisting disco on us; that wasn't music, it was torture. I am surprised the U.S. Army didn't use disco to force Manuel Noriega to surrender; I would have surrendered faster than one of the Village People could put on his lipstick.

It was, therefore, with great trepidation that I read two opinions involving a "song" from that era, "Disco Inferno," Dimension Music Publishing, LLC v. Kersey, 2006 WL 1983189 (E.D. Pa. July 12, 2006), 2006 1716568 (E.D. Pa. June 23, 2006). The opinions illustrate the continuing importance of registration and the foresight of those who drafted the 1992 Automatic Renewal Act (ahem, ahem, ahem). Readers will recall that the 1992 Act abolished for all times the requirement of renewal as a condition for copyright. If one counts back 28 years from 1992, you get 1964. Since December 31, 1977 was the last effective date for works created under the 1909 Act, the ARA has relevance for works first published between 1964 and 1977.

Here's the connection between disco "music" and renewal. "Disco Inferno” was performed by The Trampps, and reached number one on the Billboard disco chart in 1977, and was included on the soundtrack for the film Saturday Night Fever (no comment). It was written by two Philadelphia songwriters, Tyrone Kersey, a/k/a/ Ron “Have Mercy” Kersey and Leroy Green (Yo! Leroy?)Through lots of transfers, plaintiff came to allegedly own all rights, including the renewal rights. I am deeply skeptical the original agreement conveyed renewal rights, but for purposes of a summary judgment motion that issue was conceded for reasons that aren't explained.

The foresight of the 1992 drafters is seen in an obscure fact setting: an author files an application for renewal within the 28th year but dies before the renewal term begins. The 1992 Act takes care of this situation in Section 304(a)(2)(B)(ii). It is one of those nitpicky sections that can have important consequences. Those who want a different result might think of hiring a special care nurse until the beginning of the 29th year.


Anonymous said...

Prof. Patry--
Readers will recall that the 1992 Act abolished for all times the requirement of renewal as a condition for copyright.

Of course, that was a gigantic mistake, as was dropping the registration formality.

At best, copyright is nothing more than a useful evil. Granting a monopoly over a work is not good in itself, and giving artists a reward at public expense is not good in itself either. These things are only good when, and to the degree that, the public enjoys a net benefit. And let's remember that encouraging the creation of works is one kind of benefit, but far from the only kind, or the most important kind.

When an author is willing to create a work without the incentive of a copyright, we should always be willing to let him. This results in a public benefit (i.e. that the work was created) without the unfortunate public harms (i.e. a copyright on the work) which simply results in an even greater public benefit (i.e. the work enters the public domain immediately, and is free to be the basis of derivative works).

This means that artists should be required to make some indication that they want a copyright. Registration performs this service well. It allows us to only grant copyrights to those artists who are willing to self-identify as artists who want one and thus are likely to have been incentivized by them. Artists who don't care need only do nothing and will receive no unwarranted monopoly.

Renewal is similar in that while it only acts upon those artists who have self-identified, it lets us make copyright more granular. It is only common sense that different authors would require differing levels of incentive in order to create their work. Granting a surplus of copyright is just as bad as granting an unnecessary copyright. Multiple terms and a renewal formality let us repeat the self-identification test, with the hope that some authors who have stepped forward in the past will cease to do so, and thus not be unduly given a copyright. Those who remain interested in copyright will continue to step up.

Personally, I'd like to see lots of very short terms. Preferably terms of only a few years, maybe less initially, since copyrights lose their economic value so rapidly in the vast majority of cases.

Arguments that this will harm authors who remain interested, yet miss the deadlines, are of course quite foolish. If someone is a homeowner, they are required to pay their property taxes, their mortgage, etc. lest they lose their property. If someone earns an income, they are similarly required to pay their income taxes. If someone has a business, there are often periodic permitting and inspection requirements.

Artists for whom copyright is relevant are adults, with other adult responsibilities such as those above. To suggest that they are so childish that they cannot remember to file paperwork periodically with regard to something important for their income is the height of paternalism. Plus, as already shown, it results in the waste of public resources, viz. the works that ought to enter the public domain due to authorial neglect.

The hurdle need not be high at all, but it is essential that it be there. History already shows how beneficial for the public registration and renewal requirements are. We need to restore them and strengthen them.

William Patry said...

I was quite proud of the 1992 Act at the time, but have, in light of term extension come to regard it differently as well as the 1976 Act's approach in general. The old formality ridden system has more positive features than I realized at the time. Those benefits were always there; I just had a different ideology and so discounted them.

Anonymous said...

I guess Kersey picked a bad day to quit sniffing glue!

William Patry said...

Bravo, Bruce, very funny!

Max Lybbert said...

anonymous: When an author is willing to create a work without the incentive of a copyright, we should always be willing to let him.

Patry: The old formality ridden system has more positive features than I realized at the time.

I have to admit I'm very happy that it's possible for me to get a copyright without resorting to hoardes of lawyers. I also like the little "free to get a copyright, but register to sue" aspect of current law.

There are things I'd change, no doubt. But there's a lot to recommend the current system.

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