Thursday, April 09, 2009

Barbara Ringer

Former Register of Copyrights Barbara Ringer died this morning at 83. A very private person, there will be no ceremony. It is impossible to overstate Barbara's contributions to U.S. copyright law, including her highly distinguished service as Register of Copyrights from 1973-1980 and as Acting Register from 1993-1994. A career Copyright Office lawyer, she worked with the legends of the Office, including Abraham Kaminstein and Arthur Fisher. Her knowledge of both U.S. and international copyright law was breathtaking and unsurpassed, making me look like a pisher. There was no one who knew more about arcana, such as renewal, the manufacturing clause, and conceptual separability. The regulations, which she and then General Counsel Jon Baumgarten drafted on passage of the 1976 Act to implement that Act involved a herculean effort, and it was hardly the only one going on at the time: an 1,100 page report to Congress performance rights was also being prepared and was issued in June 1978. But she was also a big picture person, with moving law U.S. so that we could eventually join the Berne Convention as a top goal, one widely shared within the Copyright Office; she assisted with that effort even after leaving the Office.

Its not that things came easy for her; they didn't. Barbara had to sue to get her position as Register. But Barbara had personal and political skills that could meld together the contentious factions that threatened to tear apart every compromise in the 20 year road to passage of the 1976 Act. Her influence with the Congressional committees was unrivalled, especially in the House of Representatives, where Chairman Robert Kastenmeier had a warm, trusting relationship with her, a relationship made possible by Barbara's impeccable integrity, her concern that every voice be heard, her refusal to let an injustice be done but her pragmatic willingness to take less than what she might want for the greater good. She also was not afraid to speak her mind, especially on behalf of authors, the real authors. While one hears, constantly, corporate chieftains claiming that they're out there fighting for the creators, we all know that is b.s.: the creators are merely an expense item on a balance sheet, to be reduced as much as possible. We also hear politicians make similar paeans to creators, yet when was the last piece of legislation that was passed that benefited creators at the expense of corporations? When was the last time you heard a government official suggest such a thing?

Barbara did. In what is, I believe, the most arcane copyright case the Supreme Court has heard, Mills Music, Inc. v. Snyder, 469 U.S. 153 (1985), the Court, in a 5-4 decision, rules against the songwriter in favor of the music publisher in interpreting Section 304(c)(6)(A). In brief, the question was who receives the royalties from exploitation of a derivative work prepared during the term of the grant, after termination? It was clear that during the term of the grant, the songwriter received royalties according to his or her contract with the music publisher. But what after the songwriter terminated the music publisher's contract? Did the songwriter receive 100% of post-termination royalties, or, would the songwriter continue to receive royalties according to the contract? (The derivative work, in that case a sound recording of the song, could be exploited post-termination because the statute says so). The Second Circuit, per the great Judge James Oakes held for the songwriter, but the Supreme Court reversed.

Barbara was outraged, and testified before the Senate about the Court's error and the injustice it worked to authors. About music publishers, she said that had not bargained for the post-termination windfall and had done nothing to deserve it. We shall not see the likes of Barbara again; farewell.