Copyright and St. James Infirmary - a personal rant

Who owns a song?
Or anything else?
image © Robert W Harwood  ; )

I recently exchanged some comments with a fellow photographer. She had found, quite by accident, that a painter had incorporated one of her images as a chief design feature in one of his paintings. That painting was on display (and for sale) in a gallery. She, Lorrie, commented:

    It was a surreal experience for me to see my work manipulated and presented as fine art for sale. I pondered whether to contact him, but I let the impulse go, as my reaction was not one of indignation but rather befuddled amusement. Yes, he had violated copyright by using my photo for commercial purposes, but I was swept up in philosophical thoughts about what constitutes original content.

It is that question of Lorrie's, "what constitutes original content?" that is at the heart of any copyright argument. Here is my response to her:

    It is an interesting discussion you are entering into, Lorrie. 
    Things related to "intellectual ownership" and "copyright" become complicated. Things related to "courtesy" do not. Informing a person of your use of their work (or even asking permission) is common courtesy.
    Copyright use, the question of who owns these sorts of images, is related to courtesy, but is entangled with bureaucratic tape. So, here are my few words on that.
    Copyright was originally - and we're talking 18th and 19th century in the U.S. - intended as a way of limiting a person's ability to profit from something he or she created. It was recognized that everything - from a painting to a spinning wheel - was based on something that preceded it, that nothing is original, and so ultimately belongs to our commonality. In other words, copyright ensured that the item returned, within a reasonable amount of time, into the public stream; in this way others (the public in general) could benefit from it and incorporate it into their own explorations, without fear of repercussions. And thereby to help us all progress.
    The notion of copyright changed as corporations became more influential in legal processes, and it segued into a means of preventing commodities or ideas from becoming public property - they would probably refer to it as protection of investment. So, in effect, the notion of copyright did an about-face. And that might be why something about current copyright law has a peculiar, and not attractive, smell.
    One thing it does, this contemporary interpretation of ownership, is undermine common courtesy. We are not, in this legal notion, participating in a mutual undertaking (that is, living life with concern for each other) but are instead isolated from each other in a kind of pecuniary or egoistic selfishness.

The history of "St. James Infirmary" is intimately entangled with copyright law. In the case of SJI, copyright removed it from the public domain. This is a peculiar thing, and it is a disturbing thing. Were it not for the fact that SJI is so obviously not an original composition, it would still be restricted by copyright protection. But, you see, that returns us to Lorrie's question of "what constitutes original content." Even the most cursory thinking on this matter should reveal to us that we are not the originators of anything - we modify what went before. And it is this incremental increase in knowledge and creativity that moves civilization forward. The intention of copyright law was to encourage people to innovate, to develop new ideas and contraptions, by offering a period of exclusive remuneration. That period was limited in order to ensure that society as a whole benefited. Everything arises from the common ground, and the common ground needs to remain fertile.

If you doubt this, the following quote - cited in Lewis Hyde's "Common As Air: Revolution, Art, And Ownership" (2010) - is from a 1988 review of copyright law from the U.S. House of Representatives:

    Under the U.S. Constitution, the primary objective of copyright law is not to reward the author, but rather to secure for the public the benefits derived from the author's labors. By giving authors an incentive to create, the public benefits in two ways: when the original expression is created and . . . when the limited term . . . expires and the creation is added to the public domain.

Now, having said all this, I have to admit that if I was the author of a song, or a book, or a spinning wheel that was returning significant profits, I might want the copyright extended for as long as possible. (Thus the stance of Walt Disney Corp, Paul McCartney, and so on.) Well, at least part of me would. Another part, I hope my primary part, would recognize the place from which I received inspiration and would prefer to, as at least a gesture of gratitude, return my creation to that place, to the human race.

This is only reasonable.

Common As Air - a reading recommendation

I have been away from this blog for some time, and this will be one of my last posts for some time yet. More about that later - for now, though, here is a reading recommendation.

Lewis Hyde's book Common As Air - Revolution, Art, and Ownership was released about a month ago. The book offers a stimulating discussion of copyright and ownership of "intellectual property," areas that I have found unavoidable in my researches into "St. James Infirmary" and its ilk. We know something about how a song like "St. James Infirmary" grew organically, and what happened to the song when it was suddenly transformed into an owned thing, "protected" by copyright from the very processes that gave it life.

"Common As Air " brings a fresh perspective to questions - today more important than ever - arising out of ownership of the intangible. I recommend it highly - although I doubt that Irving Mills would have given it much praise.