Santa Claus Is Coming To Town... And EMI Is Keeping The Copyright

from the terminate-this dept

We were just talking about the latest efforts to remove termination rights from musicians (and other artists), and a number of termination rights battles are still ongoing. Most of the existing ones are slightly different from the ones we're talking about -- and it gets pretty down in the weeds technically. In short, there are different rules for works created prior to 1978 and those after 1978. Most of the focus is on the termination rights for works created after 1978 -- though there are some interesting ongoing battles concerning works created prior to 1978... including that song you just can't stop hearing this time of year: Santa Claus is Coming to Town.

Judge Shira Scheindlin (yes, the judge who recently got attention for killing NYC's stop and frisk program, and then being removed from the case for a rather bizarre claim of bias) has now ruled that the heirs of the authors of that song, John Frederick Coots and Haven Gillespie, cannot terminate the copyright assignment, currently held by EMI, and thus EMI gets to retain the rights to that jingle you can't get out of your head no matter how many times you try.

You can read the details of the ruling at the link above or embedded below. I don't have any particular problem with the details of the ruling itself. The whole termination process is a mess -- especially for pre-1978 works -- and this is yet another case where unclear contracts likely led to this result. The reason I'm bringing up this bit of Christmas music copyright fighting is just to note that the song was written in 1934, at which time the maximum copyright that Coots and Gillespie could have hoped for was 56 years (28 years upon registration, with another 28 years if they renewed). That means that for the two of them, the incentive of having that copyright (which they then assigned away to Leo Feist, Inc.) last until 1990, was clearly all the incentive they needed to write and release that song. Under the basic terms of the deal that the public granted to the copyright holder, in 1990, that song belonged in the public domain.

Of course, thanks to the 1976 Copyright Act -- which extended copyright terms massively -- and then the Sonny Bono Copyright Term Extension Act of 1998, which extended copyright terms, yet again, for another 20 years, the song didn't go into the public domain in 1990. Nor has it reached the public domain today, 23 years later. Nor will it reach the public domain for many more years -- potentially never, if the recording industry is successful in extending copyright terms, as many expect. However, it seems somewhat ridiculous that the work did not go into the public domain in 1990. That was the deal that was struck when it was written. The song was to become part of the public domain. That didn't happen and the public got nothing in return for not being given what it was promised.

So, go ahead and sing whatever Christmas songs you like this seasons, but remember that thanks to the recording industry and Congress, you better not pout, you better just pay up your royalties in perpetuity, because the public domain is never coming to this town if they can help it.

Filed Under: copyright, public domain, santa claus is coming to town, termination rights
Companies: emi


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  1. icon
    That One Guy (profile), 19 Dec 2013 @ 9:24pm

    Re: Re: Re: Re: Re: Re: Re: It adds to our culture.

    We already have laws for that, it's called 'Murder', and assuming copyright ended at death, how exactly would that benefit someone else to such a degree that they would risk jail?

    Assuming they managed to get away with killing the creator, the work would be in the public domain, so everyone would have the ability to potentially profit off of it, not just the one person/group that committed/ordered the murder.

    Currently I'd say the two biggest failures of copyright are duration and penalties. With the duration set such that anything created will only enter the public domain(if it ever does) long after those that created it, and the culture it was created in are long past, the system hardly encourages the growth of culture and the enrichment of the public(the sole purpose it's supposed to serve).

    Ideally copyright should be a 'give and take and give again' system, where the creator borrows ideas from the public for their creation, makes their money, then the public incorporates the new ideas back into culture, for the next creator to use and build off of. With how it is currently though, it's very much a 'take and nothing more' system, where a creator borrows ideas from the public, and then those ideas are locked up, with the public unable to use them in return unless they want to tempt a lawsuit.

    As far as the penalties, where to even start...

    The massive penalty amounts have enabled shakedown/extortion schemes around the world, as people, guilty or innocent, are forced into paying out hundreds, even thousands to avoid being fined astronomical amounts in court(on top of the significant amount it takes to even defend yourself in court, though that's a mostly separate problem).

    When a single infringed copyright is considered to be a more serious crime than stealing a car, assault or other crimes with verifiable harm, it shows how broken the system is.

    When the law is set up in such a manner than a person/company doesn't even have to prove any harm was incurred by them due to actions by the accused to be awarded massive amounts in court, is shows how broken the system is.

    When a CD, if flat out stolen, is worth little more than a slap on the wrist, maybe a minor fine, but the same CD if downloaded is considered to be worth hundreds of thousands, possible over a million... yeah, the system is broken.

    Fix these two major problems with copyright law as it stands today, and you'd likely find a lot more people agreeing that copyright is a good thing, but as it stands now the downsides to the system are huge, and the more people learn about it the less respect they have for it.

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