When does a musician not own their music?
My reflections from Week 2 of the CopyrightX programme at Harvard Law School.
Dmitri Shostakovich (1906 – 1975) was a Soviet and Russian composer and pianist, whose piano concertos (such as this one) I really enjoy, and often listened to while studying in law school. Shostakovich is regarded as one of the major composers of the 20th century, and has significant historic importance due in part to his years of work under Stalin. This political context is important to note in light of one of the copyright cases I read this week: Shostakovich v. Twentieth Century-Fox Film Corp. In this case, Shostakovich unsuccessfully sued Twentieth Century-Fox Film Corporation for using musical works of his in the 1948 film, The Iron Curtain. The court held that all of the music used was in the public domain, and therefore enjoyed no copyright protection.
When works fall into the public domain, they can be thought of as “common property” and are therefore free for others to use. The intellectual property rights may have expired, been forfeited, expressly waived, or may be inapplicable. Most commonly, works fall into the public domain 70 years after the death of author or artist. But as noted above, Shostakovich was still very much alive in 1948. So why had his music fallen into the public domain? Well, as I learned this week, it’s because for much of USSR’s history, it had no international copyright relations to speak of. Accordingly, it was not until 1973 – when the USSR signed the Universal Copyright Convention – that foreign jurisdictions (to include the United States) recognised the copyright of Soviet authors and artists like Shostakovich.
The Supreme Court of New York held that Twentieth Century-Fox Film was well within its remit to use use his music. As a citizen of the USSR who had created works in the Soviet Union, due to the USSR’s lack of international copyright law, Shostakovich lacked the requisite rights to enforce his copyright in the United States. But what about Shostakovich’s “moral” rights to his music? Should intellectual property stretch beyond the letter of the law, and grant inherent, inaliable rights to those who labour and bless the world with their creative output?
In Week 2 of CopyrightX, we explored several theoretical frameworks underpinning the evolution and development of copyright law, namely: utilitarianism, labour theory, personality theory, and social planning theory. For more on each of these in detail, I do strongly recommend Prof Fisher’s Theories of Intellectual Property essay (Cambridge University Press, 2001).
I have a lot of thoughts about each these theories, and consider myself a proponent of the personality theory – not least because of my European bias! But for the purposes of this blog post, I just wanted to focus on the critique of John Locke’s labour theory of property. As most political science, economics or law students will know very well, in his Second Treatise of Government (1690), Locke asserted that a labour owns the fruits of her labour, because she worked for them. Time and time again, many judges as well as legal academics have returned to this philosophy to support and extend strong intellectual property rights for creators. The labourer – in this case, the artist or author – “conquers” the wild unknown of nature and raw materials, and transforms them into something of meaning and use. The law then rewards the labourer with certain intellectual property rights in their creation,
But if we pause and look a little deeper, a few inadequacies begin to show. In the intellectual property context, what counts as “intellectual labour”? Consider the following different possibilities. Does intellectual labour mean time and effort, for example the hours spent in front of the computer typing away? Does it mean activity that one does not enjoy, such as the hours spent in the studio instead of watching TV? Does it mean only that intellectual activity that results in social benefits? What about creative actions that produce new ideas, which may or may not necessarily be beneficial?
Our answers differ depending on which of those four perspectives we choose. It’s also worth considering what we consider to be the “raw materials” referenced above. When someone mixes their labour in with existing “materials” – to include facts, cultural concepts, language, artistic heritage, and so on – at which point does it tip over into the realm of individual ownership? When does something go from being a “raw material” to a transformed, finished piece of “property” that a single person can call their own?
Locke imagined that when you apply labour to a plot of land, the land and the fruits become the property of the worker. But this simply cannot work in practice for copyright: the “raw” materials of the idea are incapable of individual ownership. Furthermore, even when an artist obtains copyright ownership over a particular painting they’ve done, for example, it does not prevent other people from parodying or discussing that work! When seeking to understand the relationship as between intellectual labour and intellectual property ownership, it quickly becomes obvious that Locke’s theory only gets us part of the way to the answer.
By way of conclusion for this week, it’s safe to say it’s all a bit dense. But what else can we expect when considering the philosophies of Locke, Kant, Hegel, Dworkin and Radin!? That said, I actually really love this stuff, and in my opinion Prof Fisher does a good job at distilling the key issues for further analysis. Even if none provide a solution to conceptualising the perfect intellectual property laws, discussing IP theory is still are valuable because “they can catalyze useful conversations among the various people and institutions responsible for shaping the law”. Ultimately, “through continued conversations, there may lie some hope of addressing the inadequacies of the existing theories.”
For what it’s worth, Locke’s labour theory aside, my personal (non legal!) opinion is that Shostakovich should have been entitled to enforce his copyright claim. This is because, as mentioned above, I’m a huge advocate of the personality theory of intellectual property. Amongst other things, I consider that the right to control one’s creative output is necessary to enable the individual to be independent and self-directing, and enables a person to assert free will and autonomy. In my view, ownership of one’s creative output speaks to their psyche and identity, and enables them to shape their position in society. But this, of course, is a subject for another blog post…
Featured photo by Dayne Topkin via Unsplash