By Tom Murphy
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By Kiernan Maletsky
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Lawrence Golan knows firsthand that classical music can be a tough sell. As a professor of conducting and director of the Orchestral Studies program at the University of Denver's Lamont School of Music, Golan spends his time teaching the classics to music students and conducting the school's orchestra. Along the way, he's struggled to uphold a musical tradition that has seen its commercial appeal shrink and audience age over the last couple of decades.
"The major labels are dropping classical music," Golan says. "You look out into the audiences and see a lot of gray hair."
Yet he and others who remain committed to the classical style see it as something worth fighting for -- even if that battle pits them against forces that don't seem to have much to do with the world of music. Last fall, Golan became the lead plaintiff in a suit filed in U.S. District Court in Denver challenging two pieces of legislation that make it harder and more expensive for instructors, performers, publishers and cultural organizations to access works of art, including classical-music compositions. In the complaint, Golan points his baton at the Uruguay Round Agreements Act (URAA) and the Sonny Bono Copyright Term Extension Act -- laws that he, his fellow plaintiffs and his attorney say ignore the Constitution's requirement that copyright statutes be of a limited length and that they "promote the Progress of Science and useful arts." Instead, they claim, the acts have created a loophole that yanks the sheet music of many great pieces right out of the hands of performers.
"In a city the size of Denver," Golan says, "no children will hear 'Peter and the Wolf' live again. It won't happen for another twenty years. It's horrible."
"The [laws] don't promote the 'Progress of Science,'" adds Edward Lee of the Stanford Law School Center for Internet and Society in California, which is handling Golan's case pro bono. "How can you promote learning and knowledge when you're removing work from the public domain and making it more difficult to have access to it?" The list of plaintiffs in the case includes distributors of books and films who Lee says are also being hurt by the laws; Festival Films (a distributor of recordings of vintage films and TV shows) and ESS.A.Y Recordings, a distributor of classical music, are among those named in the suit.
The URAA and the Sonny Bono Copyright Term Extension Act are as complicated as they are controversial. The URAA, an international treaty signed by the United States in 1994 and made effective in 1996, grants copyright protection to foreign works that were previously in the public domain, ratcheting up the price an organization or individual must pay in order to perform or use them. The Sonny Bono Copyright Term Extension Act -- sponsored by Cher's former singing partner and passed by Congress in 1998 -- prolonged the life of current copyrights from fifty to seventy years past the death of a work's author. At the time of their respective passages, both laws were viewed as protective shields for artists both living and dead, designed to ensure that they and their families received compensation for their work.
But according to Golan, both have dire implications for teachers, aspiring artists, arts groups and consumers. For one thing, they make the use of certain scores too expensive for all but the nation's wealthiest symphonies. Many works -- such as Prokofiev's "Peter and the Wolf" and pieces by Rachmaninov, Tchaikovsky and other Russian and foreign composers -- did not previously fall under U.S. copyright laws regarding authorship. (The U.S. government refused to recognize the copyrights of many Russian artists in response to the former Soviet Union's denial of international copyrights.) Other foreign composers didn't receive protection because of technicalities on their part, some as minor as not placing a copyright notice on their works. (Until the late '70s, the United States was the only national power that required such symbols for copyright protection.) For this reason, many works by international artists, writers and composers were in the American public domain prior to the creation of the URAA, their rights available for rent or purchase by symphonies for relatively small amounts of money.
Today, those same works have attained newfound copyright status, a fact that has made them largely inaccessible to arts organizations with meager budgets, including the Colorado Symphony Orchestra.
Rodolfo Betancourt, an artistic and education assistant with the CSO, says the orchestra has felt the pinch caused by these higher fees. For its educational performances, the CSO typically spent about $100 for the sheet music for public-domain pieces in the past; that fee covered the music and the publisher fees. Contemporary works by modern composers -- a John Williams score, for example -- are generally reserved for larger-budget shows; rentals for these can go as high as $10,000 or more. Thanks to the new laws, Betancourt says, his days of $100 rentals of many foreign compositions are now over. CSO purchased sheets for "Peter and the Wolf" years ago, he notes, when it was a public-domain piece. Now the CSO would be required to pay fees ranging "from a couple hundred dollars to $6,000" for the piece. For an organization whose financial woes have worsened in recent years, those fees are simply not affordable. Betancourt's department has stopped scheduling works that are protected under the Uruguay and Bono acts.
"We have found that, especially with foreign composers, we can't afford some of their music for these programs," he says.
Golan points out that it's not only foreign works that will no longer reach the ears of American music lovers as a result of the Bono act. He and his peers across America "have been champing at the bit for the year 2002, because that's the year that Gershwin's 'Rhapsody in Blue' [was] to become public domain." Now, because of the extension the work's copyright has received under the new law, it will be another twenty years before most symphonies can afford to perform it. "Now, unless you're one of the big-budget orchestras, you can't afford to play it, because it costs a thousand bucks for each performance," Golan says.
On paper, the Uraguay and the Bono acts seem like a boon for domestic artists. The former allows American writers and composers to receive more payment for works used overseas, while the latter enables them to earn that money for longer periods of time. Among their supporters are I. Fred Koenigsberg, an attorney with White & Case, the firm that represents the royalty collection agency ASCAP. "The benefits of those additional twenty years flow to the families of authors and artists in a very considerable manner," says Koenigsberg, who's also a former president of the American Intellectual Property Law Association. Longer terms, he adds, also give publishers and corporations who trade in published work an inducement to "exploit them, in the best sense of the word," since they can reap dividends for longer periods of time. Copyright extensions don't take anything out of the public domain; they simply keep them there longer, Koenigsberg says.
But Golan argues that instead of boosting income for the heirs of composers, the acts actually reduce artist earnings.
"If there are only five orchestras that can afford to rent a piece for a thousand dollars," he says, "the publishers and heirs of the composers would earn $5,000. If you were able to purchase the piece for a hundred dollars, there would be 2,000 orchestras that could buy it, and [copyrights holders] would make $200,000."
Besides, he adds, extending the copyright terms does nothing to foster the creativity and promise of future artists. "We're talking about composers who are dead," Golan says. "Gershwin made millions of dollars back in 1920, when he was alive. His great-great-grandchildren don't need to make more money on something they had nothing to do with in the first place."
Morton David Goldberg is a partner with Cowan, Liebowitz & Latman, a New York City firm that represents publishers, entertainment corporations and music consumers, and one of the nation's leading experts on intellectual properties. He says the Bono Act was approved to bring U.S. policy in line with European Union countries that honor copyrights for seventy years: "The only way the U.S. copyright owners would get the benefit of the additional twenty years in Europe is by having the additional twenty-year term in the U. S."
Koenigsberg says the laws have great benefits for the United States as a whole. "Copyrights are an export product," he says. "We get far more money from foreign countries for the use of American copyrights than we pay for the use of foreign copyrights here in the United States. We have a trade surplus in copyrights. That means money and jobs for the United States economy."
But according to Stanford's Lee, Congress's decision to extend copyrights for twenty years was the result of pressure from both foreign and domestic parties, including Capitol Hill lobbyists. On an international level, U.S negotiators were willing to give up access to works in the public domain in order to gain other benefits for America. "If you want to bargain with another country," Lee says, "you're going to be trading little chits." Stateside, "you get powerful copyright holders that lobby Congress at key moments when their copyrighted works might fall into public domain." The Bono Act, he points out, has been dubbed the "Mickey Mouse Protection Act" by its opponents. "The first movie with Mickey Mouse was to fall into the public domain had the extension not been enacted." (Works for hire, as Mickey Mouse was for Disney, already receive the protection of an extra 25 years.)
Representatives at two of the nation's largest music publishers declined to comment on Golan's pending federal case -- which is expected to be reviewed by the court this summer -- as did a spokesman for the U.S. Office of the Attorney General. In a brief filed in response to the complaint, U.S. attorneys claim that Congress has the right to extend copyrights to works whose protection is due to expire, and that it has done so several times in the nation's history. (The most recent extension was in 1978.) Regarding the URAA, government attorneys believe that powers granted to Congress through international treaty practices allow them to place public-domain work back under copyright protection. "Plaintiff's suit should be dismissed," reads the brief, "because so long as the Constitution delegates to Congress the power to pass a statute, and the statute does not trample on other parts of the Constitution, that statute is acceptable."
In the meantime, Golan and his allies want the rest of the nation to know about the cost of these laws that they say "are preventing the majority of the audiences of the world from hearing all this great music."
"It's like saying people can't go see a Monet or a Picasso because you're charging people a thousand dollars to see it," Golan says. A composer himself, he's also not worried about the impact lost royalties might have on his peers. "Creative inspiration comes from somewhere else, and if you happen to get paid for it, great."
"The focus of the case," Lee says, "is to voice the public's right to works in the public domain. Some of these acts were enacted with very little, if any, voice expressed by the public to see how the public's being harmed. We have to think about what kind of society we want in terms of how freely information can flow."
"We want to have variety," CSO's Betancourt says. "If we have to rent 'Peter and the Wolf,' that will be a very big issue. The cost would be almost impossible. Only big orchestras will be able to afford it; it will fade away. And it's a staple of music education all over the world."
"As a conductor, one of my primary missions is audience development, to help revive an art that one can argue is graying these days," Golan says. "Anything that hinders that has to be fought."