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Copyright:  Why It Exists
Copyright:  Recorded Music
The Redskins Trademark

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What's Wrong with the Flat Tax

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All articles "recovered" written ©Mark Joseph Young, originally published on TheExaminer.com.  All other articles written ©Mark Joseph Young.  This site is part of M. J. Young Net.

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Intellectual Property

The subject arose in the latter half of this year, on multiple fronts.

Copyright:  Why It Exists

Our recent discussions on freedom of expression led to an article concerning whether an actor has a sufficient copyright interest in his own performance to block the release of a movie.  This opened a new subject, copyright, which is worth some time between major political events.  Copyright and copyright infringement have been hot issues in the digital internet age, when everything from essays to major motion pictures can be copied in minutes at no cost.

Originally, copyright law developed alongside printing, as a protection for the printing industry.  The theory was that printers, whose business encompassed all that which we now distinguish as printers, publishers, and booksellers, spent a fair amount of money obtaining books, but that with the new technology anyone with a printing press could make and sell copies by copying the originals.  There was an assumption that the authors who wrote the books were compensated by the printer for the right to print the book, who could then profit by selling as many copies as he wished; but that since obtaining the original was more expensive than copying a book someone else had already published, such copying was popular.  Several concepts were explored, and by the early eighteenth century there were laws in place that gave the original publisher of the book exclusive publishing rights within a country for a period of years, sometimes renewable, and usually with protections against competitive imports.

This was a time when literacy was rising, and reading was both a primary form of entertainment and a conduit for public education.  Governments wanted to encourage reading, and to do so they needed to encourage publishing:  there had to be books.  Gradually over the next century the right shifted, such that it was not the publisher but the writer who held the right to copy his own works, the "copy right", and gradually that right spread to artists, cartographers, poets, composers, filmmakers, and performers--creative arts of all sorts.  The theory here was that creative works themselves had value to society, and if we were to have any such works the creative people who created them would need to be compensated.  If I wrote a book, or a song, or recorded an album, and put my time and money into the effort, and then got nothing for my effort, I would be forced to abandon such creative endeavors and turn my attention to some form of labor that puts food on my table and pays my bills.  Certainly the market's failure to make some work successful culls some of those from the creative efforts whose work is substandard; but if no one can "make a living" from creative efforts, everyone will be forced to abandon them save those who are independently wealthy and can pursue their creative impulses without regard for whether they are any good.

In order for that to work, we have copyright law, laws that say I cannot take your writing, or your music, or your artwork, without properly crediting and compensating you.  If I read your book, or listen to your song, or put your painting on my web site, you deserve to be paid.  If you do not think that my work is worth your money, then do not use it.

Of course, there are several models for how this can work.  Here at The Examiner you do not pay to read the articles; but The Examiner pays its writers and collects revenue from advertisers.  When you watch broadcast television in the United States, you do not pay for it; either you watch commercials which pay for the program in the hope that you will buy what they are selling, or you watch pledge drives asking you to support public television.  (If you are in Great Britain, you do pay for broadcast television:  it is funded by your tax money.)  Yet there are some forms of copyrighted art that are being stolen today, taken without compensation, and it raises serious issues concerning what forms the future of creative enterprise will take.

Copyright:  Recorded Music

Let's take a short walk through some relatively recent history.

In the 1950s, even in the early 1960s, it was possible for a group of musicians to record a song on a quarter-inch width seven inch per second reel to reel tape deck in someone's garage, and have it be a hit record airing on radio stations all over the country.  Almost anyone could make a record, and there were a lot of "one hit wonders" who proved it.  Sales of such a hit record could make the artist modestly wealthy; sales of several such records could make him a star.  However, through this decade audio and recording technology was advancing, and by the late 60s the quality of the record had become a factor in its success.  By the late 70s studio time had jumped from the twenty-five dollars an hour (or twenty-five dollars to have the studio from 6 at night to 4 in the morning, immortalized by a Chicago hit) to over a hundred thousand dollars an hour for the top recording studios the record companies preferred.  Meanwhile, concert tickets were relatively cheap, and concert effects--pyrotechnics, laser light shows, sound and lighting systems--were very expensive.  Bands lost money doing concert tours, because they made money selling millions of copies of their albums; tours were named for the albums, so fans would know what record to buy.

Then the 80s started winding down, and there was a shift.  No one wanted to be out-of-pocket for expensive concert tours.  Cassettes had risen through the decades, and these were very easy to copy; CDs followed, which were even easier, with a lot less quality loss.  There had always been people who would steal songs rather than buy them--in radio, we tried to spot "tapers", people who would request a song they wanted not because they wanted us to play it but because they wanted to record it for their collection and not spend the money on the record.  Radio stations get free records so that listeners will hear them and go buy them, not so that people can steal them off the air, and DJs then made a point of talking over intros and outros in part so that tapers couldn't pirate clean copies.  Record sales began slipping, because people could copy their friends' copies and save the ever higher price of the disk.

It made a change in the industry.  At one time, artists lost money on concert tours so they could make money selling recordings.  By the mid nineties concert ticket prices had skyrocketed (on the Three Dog Night live album the artists joke about the expensive seats in the front costing seven dollars fifty cents; major concert tickets under fifty dollars gradually became rare in the extreme).  Now artists lost money selling albums to promote concert tours to make the money.  Where once record companies financed albums (the way studios do movies), now some companies expect the artist to pay for the album.  Artists have little return from the records, only from the concerts.

Complicating it, recording equipment has been microminiaturized.  It is now possible for someone to record a concert on a cellphone and upload it to the Internet before leaving the concert hall.  Any interest the artist has in making money from recordings of his work is virtually unenforceable.  He might have a legal copyright at the moment of the performance, but he cannot possibly prevent his work from being copied by millions, if millions want it.

All of this raises questions about copyright in the modern era.  What has happened to music is happening to movies, television, photographs, and soon books.  We might maintain the law that says an author, artist, musician, or publisher has a protected interest copying his own work, but can we enforce such a law--and is it necessarily the case that we want to do so?

To the latter, the answer might be yes.  In the long term, authors and artists are vulnerable.  If I sell a hundred thousand copies of a book, I probably make a decent living; but if there are a hundred thousand copies of my book in circulation because I sold a hundred and everyone copied it from someone else, I will not be able to afford to write another book.  Artists are on some level accustomed to that.  J. K. Rowling reportedly received four thousand pounds for the rights to release the first printing of the first of the Harry Potter books--somewhere between six and nine thousand dollars for the labor of several years.  All artists live with the hope that their next work is going to be the one that breaks through and starts bringing real money--Steven King struggled financially until his first movie deal.  Yet if those books can be copied that cheaply and circulated without compensation to the author, there will be no more breakthroughs, and people who might have written truly excellent books you would have enjoyed will have to do something else.  It will take longer to reach movies, perhaps, because of the value of the theatrical experience; and musicians might be able for a time to make money on expensive concerts promoted by popular albums.  But the theft of artistic property weakens the structures designed to make such property possible, and may ultimately reduce the number of people trying to produce it.

Artists and authors and musicians are experimenting with other ways to fund such efforts.  It remains to be seen where these will lead.

The Redskins Trademark

If you are a sports fan, you are probably aware that the United States Patent and Trademark Office rescinded the trademark protection of the Washington Redskins in response to a claim by five Native Americans (from four tribes) that it was a racially derogatory name in violation of Federal law.  The matter has been appealed to a Federal court; a similar decision was overturned by the Supreme Court some years back.

To be clear, the Redskins are not being told they cannot use the name; they are told they cannot have trademark protection for it.  That is significant in the world of billion dollar sports franchises.  It means that anyone can print T-shirts or jersies or anything else with the name "Washington Redskins", and as long as they do not print the team logo (which is not reportedly affected by the decision) they do not have to pay licensing fees.  National Football League teams make a great deal of money on sales of team merchandise.

It is a strange case.  No one has objected to the name of the Cleveland Indians (although its mascot and those of several other teams with Native American themes in their names, such as Chiefs and Braves, have been protested).  The objection is because at least for some Native Americans, "redskin" is the equivalent of "nigger", and even if (predominantly black) Newark New Jersey were to field a team, it would be very difficult to get permission to call it the "Newark Niggas", with or without trademark.  On the other hand, the Redskins have time on their side--they have used the name since 1933 and trademarked it in 1967, and no one contested the name until 1992, a quarter century later.  Even then the Supreme Court agreed with the lower court's reasoning that the plaintiffs waited too long to complain.  Nearly another quarter century has lapsed, but apparently the new plaintiffs are hoping that the rules have changed, that even well-established egregious names cannot remain trademarked.

Of course, billions of dollars from licensing and sales are at stake, not to mention the years of "good will" (a technical legal term for the value of positive attitude surrounding the name of a business).  We also run the risk Ray Bradbury foresaw in Fahrenheit 451 (see Freedom of Expression:  Hate Speech), that if we allow ourselves to be censored by that which offends anyone, we ultimately will be unable to say anything.

I am not in a position to say how offensive the name "Redskins" is to Native Americans generally; I think that has to be part of the test.  After all, if most of the class is proud to have a football team named for their epithet, the fact that a few are offended counts about as much as whether the N.A.A.C.P. should have to change its name because a few are offended at being called "Colored".  The team owners are right that the courts should not be permitted to rob them of millions of dollars with the stroke of a pen absent compelling reason; the question is whether the reason is really compelling.  I am inclined to think not, but then, I am not in the offended group.

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