The Founder's Copyright

By George Ziemann

Every once in a while, usually a very long while, you will stumble across what initially seems like a good idea that suddenly sparks something in your brain and appears to be the solution for a much greater problem than it was ever designed to address.

I found this one on Slashdot, and here is the specific link. This article showed up under the "Books" heading, but it is the answer to correcting the music industry's copyright issues as well -- or at least my copyright issues with the music industry. I don't expect the RIAA, Sony, EMI, Warner Music, BMG or Vivendi/Universal to like this idea at all.

But it's a thing of beauty. It's called the Founder's Copyright. Tim O'Reilly (O'Reilly and Associates), a book publisher, technical guru and generally all-around smart guy, has arranged for most of his publishing company's works to be registered under this plan, which is a part of the Creative Commons.

Here is a link to O'Reilly and Associates'press release, and another to the Creative Commons' web page explaining theFounder's Copyright.

How It Works

In 1790, the U.S.'s first copyright law granted authors a monopoly right over their creations for 14 years, with the option of renewing that monopoly for another 14. Unfortunately, during the past 213 years, and especially the couple of decades, this original intent of the founding fathers as been distorted beyond recognition. Currently, a copyright extends for 75 years after the death of the author.

On one hand, this may seem like a good thing for the author. The reality is that it is really a much better thing for the publisher of the work, who shares the copyright and maintains control of its commercial use and exploitation for the duration of the copyright. In most cases, the publisher will either buy the material outright from the author or continue to share the royalty with the author or their heirs, provided it continues to be a commercially viable product and the publisher keeps it in print.

The Founder's Copyright circumvents all changes to the copyright law since 1790 in a simple, yet elegant manner. And it is totally voluntary. You have to already own a copyright to apply the Founder's Copyright.

The Creative Commons buys your copyright for $1. In exchange, you get an exclusive license to exploit the work for 14 years. You can renew it once for another 14 years. When the license expires, the Creative Commons offically releases the work into the public domain.

Why This is a Good Idea in General

It doesn't matter whether you have written a book or a song or own the rights to a movie. There are a variety of works which this licensing method can be used to control.

As someone who owns several copyrights and fully intends to collect the contents of this website into a book as soon as its current purpose has been achieved (because I'm ready to talk about things that are actually useful, like promotion and production), I think that if I can't cash in on whatever the copyrighted work is in 28 years, well, it wasn't that great anyhow.

What about the flip side? What if the work is a huge success? Currently, my children would inherit my copyrights and retain those rights for much, if not all, of their own lives. If I write a mega-hit song or a best-seller, could it continue to support my daughters in 30 years? 40 years?

In all likelihood, after 28 years, it will probably no longer be in print.

Why This is a Great Idea for Music

No matter what else happens, if this catches on, in the next 7-10 years the music industry will be irreversibly changed for the better. The Founder's Copyright not only completely circumvents any changes made to the copyright law, it also circumvents a great many clauses of standard recording industry contracts. Additionally, it can prevent the recording industry from taking ownership of anyone's copyright and exercising the abuse of that privilege to the extent which is being accomplished today.

Scenario

My band, Hayden's Wall, who collectively already feels like the "Big City" CD is really just a demo (even if it is starting to grow on us and we are really proud of it), sell the Sound Recording copyright (Form SR) to the Creative Commons for $1. We get a license which grants us all the same rights as copyright ownership for 14 years. If necessary, we also sell the individual copyright for the words and music (Form PA) as well.

If nothing ever happens with the music on that CD, no one has lost anything. If we remain small potatoes forever, it really makes no difference what we did. The copyright will still be relatively worthless.

So let's look at the other extreme. The day after we sell the copyright for the song, "Criminal Mind," everyone in the world suddenly wants to buy it. We sell 12.3 bazillion copies and make a mint. For 28 years. We lose nothing.

But what about my daughters? They'll still be around in 28 years. And I'm going to let the gravy train run out of the station without them. That's pretty cruel isn't it?

No way. I've got something even more valuable. The more money the song makes while it is paying to the license owner (aka me) the more valuable the extra bonus that I possess is worth. You see, I have the original master recordings and, in some cases, the handwritten lyrics or notes which were made when the song was created. I possess the actual physical work that the copyright protected in the first place.

Once the song goes into the public domain, that physical work will be more valuable than any of the commercial copies which were borne from it. My kids cash in big time, at their convenience, own personal greed and whim. Have at 'em, girls.

Looking at Lennon's Lyrics

This is the most striking example of this principle that I can think of.

Day Tripper ©1965 by John Lennon and Paul McCartney.

When my eldest daughter, Rachel graduated from high school in 2001, I went to the Cleveland area to attend her high school graduation. While there, some of us took a side trip to the Rock and Roll Hall of Fame, where a John Lennon exhibit was the featured attraction. On the RR HoF's top floor were several of the original handwritten lyrics for many oif Lennon's songs and a number of Beatles songs. Among them was "Day Tripper."

Many of the lyrics were written on hotel stationery, giving them a place as well as a moment in time. Some had coffe stains on them, torn edges, scribbled notes and drawings in the margins.

What I remember most about "Day Tripper" was that part of it (perhaps only one line) had been crossed out and replaced with the words we know today. I don't even remember what the edit said (if it was indeed possible to determine) or how it differed from the current version, other than it only slightly modified the meaning.

Looking at that piece of paper, I was looking at the actual copyrighted work. I've got a copy of "Day Tripper" on a Beatles CD. Actually, I think I've bought a couple of copies of it. If I took that CD to a swap meet, I might get 5 or 10 bucks for it. It's really not that valuable.

What has value to me is the meaning of the song or how it makes me feel, either when I hear it or when I play it. My physical copy is not the song. It is a aural reference to it. But the actual song lives on that piece of paper and the master recordings of the studio sessions when it was recorded.

Even when the copyrighted works enter the public domain, those original works will retain their value. If they had any value in the first place. Once in the public domain, it is possible that some sort of retrospective look back may bring them before the public again for a second chance. Again, even though the actual copyright has expired (or at least the license to it), the originals will suddenly regain their value, perhaps even to an enhanced degree.

Why the RIAA will Hate This

This is very, very simple and is what I love about the entire concept. It is so genius due to its utter simplicity. nAre you ready for this?

A record label cannot take possession of your copyrights if you have already sold them. If you sell your copyright to the Creative Commons, you own a license, not a copyright. The record label can stipulate whatever they want in a contract, but you simply no longer own the song for them to negotiate away from you.

You could, theoretically, sell the record label a secondary license to use your song for commercial purposes. But they would never own the song. The RIAA would never be able to use it to influence the government. The labels would not be able to take possession of the music written in the 21st century.

Right now, everything is about licensed this and authorized that. The labels and the RIAA are making the determination about what is an is not authorized or licensed or whatever. But if you hold the only legitimate license, now the tables are turned. The labels have to negotiate for a license to your work. Just like they're making everyone else do right now.

It gets better.

Since you are the actual license owner and the only person authorized to renew it (and only once), if you allow a secondary license and the licensee (your label) abuses the right they have purchased from you, you don't HAVE to renew it. You could let it drop into the public domain in 14 years and chop their profit-making days in half.

I think I can safely say that Janis Ian and many other artists would be much better off today if those copyrights, and the label's control over them, had expired after 14 years. Janis is still trying to regain control of her back catalog. Her label doesn't really feel like making those old records anymore.

And Janis isn't authorized to.

The Answer to Tomorrow

The Founder's Copyright has the ability to completely restore the balance of power in the music business. With any luck, it will also restore some of the balance of nature and art to the music.

But it is up to us, the tens of thousands of unsigned acts, to take it upon ourselves to avail ourselves of this opportunity. If you're a musician and a major label ever becomes interested in you, their biggest bargaining chip has already been rendered useless. They can give you a "big break," but they cannot make money off of you (or your heirs) in perpetuity as they are aiming for now.

They have to buy a license. Or they're just not authorized.

Don't sell yourself short. Make them pay. Dearly.

I have had occasion to consider the "circle P" copyright and wonder if its invention has become an ugly monster. Copyright concepts seemed to have worked fine for 200 years, being an elastic device.

Then some genius foists off a new concept, "circle P," which empowers a corporation to be the owners of the "property." Once again, any romantic values you attach to the artists' creation is lcoked up for eternity by a corporation. To add further insult, the original master is reassigned along the way, such as Dot Records to ABC to MCA to Universal to Steve Jobs/Barry Diller/Vivendi.

I am intrigued that the Eagles have started their own record label and plan on selling through Amazon. Now they can sell their own merch in the concert lobby.

I think the next step is for artists like Fleetwood Mac to re-negotiate the rights to replicate their original masters. The labels are looking at the hard reality of legislation to revert masters older than 30 years.

For exmple, I believe that the copy-protected masters of such things as 'Suite Judy Blue Eyes" SHOULD revert to CS&N. Or "Houses of the Holy" to Led Zep. And some great deal of goodwill emanates from the public, to pay direct to the authors of your favorite works.

However, we have a window of opportunity to negotiate such s license--say- 75% to Fleetwood and 25% to WEA. Given the increasing lawsuits and embarrassing exposure to the fraudulent record clubs, I say, it's time to revert the masters to the artists.

Why should "circle P' exist anyway, when "circle C" covers all the bases and always has?

Copyright trivia: The symbol (c) has never been legally shown as a valid copyright symbol

More trivia: In typical american style, the ASCII character set includes symbols for copyright and trademark but has no non-dollar currency symbols. A situation so bad that many people are forced to use # to indicate the pound symbol.

The "why the RIAA will hate this" misses a big flaw. If the label cant get control of a song it just moves on to the next artist or band. Plenty to choose from.

tomsong -- the "circle p" symbol indicates the ownership of the phonorecording copyright (the sound recording; SR copyright).

Both symbols are merely the way that the copyright owner marks a physical copy to remind the public that they own it.

Neither has any actual weight if you are required to prove it.

goldenpi -- There are plenty to choose from TODAY. If this catches on, what happens in 5 years? Even 3?

All it takes is for one or two people to leverage this to their advantage and explain to everyone else how they did it.

I'm going to try it, as soon as I find out how the rest of my band feels. If they don't want to buy into it totally, I'll at least sell the Creative Commons my own songs.

I'm just waiting to hear back on a few specific details.

Unfortunately for the major artists, this doesn't help them at all. They've already sold their careers to their label.

I haven't. Now I never have to. Neither do any of the other tens of thousands of "unsigned artists." It's a badge I intend to proudly wear forever.

I may license some work to a label in the future, if the price is right. But sign away my career and my contribution to culture so they can lock it away for 100 years like a miser hoarding his gold?

No way in hell. I'll give it to the public first. For $1.

I.I.N.M., the "circle P" was shorthand for "Recording First Published . . . " I have an article in "Beatleology" magazine dealing the first U.K. Beatles release to carry the "circle P" symbol, "Ticket to Ride," whereas all Fab Four releases aforehand had the more long-winded explanation.

IINM?

I give up. What is it?

The only problem with this is that the mafiRIAA can simply not work with those who have sold their copyrights; it would be equally damaging to the RIAA if artists did NOT give their copyrights to the Association, but can anyone name someone who dictated those kinds of terms?

I do agree with you on many points; copyrights have gotten completely out of line (as well as the patent office, but...). "IP" is the new, hip thing. I can't wait until it goes out of style.

Why cant people just keep their own copyrights and release them themselves after the correct time?

goldenpi. Theoretically, they could.

Unless they are forced to sign those rights away under the terms of a recording or distribution contract as a condition of doing business.