1:35pm

Thu June 9, 2011
Deceptive Cadence

The Supreme Court To Consider ... Prokofiev?

The Chronicle of Higher Education recently published a fascinating — and troubling — article depicting one of the cases making its way to the Supreme Court: one conductor's struggle to overturn copyright law that makes it nearly impossible for many musicians to afford to play much music written during the past century.

At the center of this battle is Lawrence Golan, who among his other activities conducts the Lamont Symphony Orchestra at the University of Denver. The issues he has raised have broad impact not just within classical music circles, but to arts and literature lovers in general.

The issue at hand in the suit, Golan v. Holder, regards the concept of public domain. When the rights to a given work expire after a given term — which as of 1976 in the United States extended throughout the creator's lifetime plus another 50 years — anyone can share, copy, quote or republish it without needing to pay royalties or to seek permissions.

In 1994, however, Congress passed a statute that effectively put many works — not just music compositions and recordings, but all kinds of creative materials, from literature to visual art to film — back under firm copyright control. The move was made to meet the requirements of an international treaty, and was limited to works created outside of the U.S. But as Golan points out, works by such Russian composers as Prokofiev, Shostakovich and Stravinsky have disappeared back into private control.

Four years later, under lobbying by such industry superheavyweights as Disney, Congress passed the Sonny Bono Act, which extended copyright protection for another 20 years for individual creators and — not incidentally considering the lobbyists' very targeted interests — 120 years after creation or 95 years from publication for corporate creators.

So what are the consequences on a practical level for classical musicians and their audiences? Well, the copyright extensions have prevented the digitization of scores, an effect that has great implications for scholars, students and performers alike.

The financial differences between a public domain work and a work under copyright can very effectively be the deciding factor between whether or not an orchestra — particularly student, community or smaller groups — can afford to play a work at all. And in an era where so many ensembles have to take a microscopic look at every line in their budget, it's not hard to envision many artistic directors deciding against repertoire that is simply more expensive than what they can afford, and thereby limiting their repertoire choices in a way that deprives both audiences and musicians of a fuller artistic range and some very rich cultural treasures.

The Chronicle of Higher Ed piece includes some alarming stats on what "affordable" means to today's college orchestras:

...Mr. Golan's university ensemble gets only about $4,000 to rent and buy music each year. That means it can perform some copyrighted works but must rely on the public domain for about 80 percent of its repertoire. And $4,000 is relatively generous. Other colleges might have only $500 to spend on music. When the Conductors Guild surveyed its 1,600 members, 70 percent of respondents said they were now priced out of performing pieces previously in the public domain.

The case is scheduled for the Supreme Court's coming term, which begins in October.

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