Supreme Court Takes Up Small Orchestras' Dilemma

By WGBH News


July 14, 2011

Lawrence Golan conducting the University of Denver's Lamont Symphony Orchestra in 2006. (Flickr/University of Denver)

BOSTON — Often seen as a luxury in a lagging economy, prestigious symphony orchestras find that government funding and endowments simply are not there when the concert halls are half-filled and the support is most needed. But the price of rights to famous and popular works are a huge stretch for smaller community and educational orchestras’ already modest funds.
This difficulty was compounded when many staples of the 20th century canon, the heart of a small company’s repertoire, began shifting out of the public domain. But Lawrence Golan, music director of the Yakima Symphony Orchestra in Washington state, says there is a specific culprit lurking in U.S. copyright law: the Uruguay Round Agreements Act of 1994. And now, as he stopped by The Callie Crossley Show recently to explain, he’s taking his complaint to the Supreme Court.
Copyright law has morphed into a complex and contentious beast over the years. Back in 1909, the original period for an artist to claim royalties for their work was 28 years, after which they had the option to renew. If they failed to do so, the work fell into the public domain. By 1978, the period was extended to the lifetime of the artist plus an additional 70 years.
In 1994, Congress passed the URAA, a foreign trade treaty, and set a whole new precedent. The act reclaimed many foreign works in the public domain back into copyright. Works that had been open to public performance by anyone were newly the property of publishers, who would be free to set their price.
The U.S. adopted this rule in the hopes that other countries would reciprocate and protect U.S. intellectual property more stringently. But the foreign works now reclaimed into copyright, as Don Gorder, chair of the Music Business and Management Department at Berklee explained, fell out in the first place because no one had renewed their protection after the initial 28 years. The URAA went out of its way to correct a simple failure to comply with a formality.
“Any American works in the public domain, they didn’t get that,” Gorder said.
So since 1994, because of U.S. efforts to coax foreign cooperation, small orchestras and educational institutions have been effectively barred from performing many beloved pieces.

Golan taught at a relatively small state university earlier in his career. One of his students intended to take a Profokiev concerto to competition, but since the school didn’t have the music in its small library, Golan would have had to rent it for $600. And his total annual budget for renting music came out to only $400.
“With the smaller orchestras, and universities, high schools, youth orchestras, in many cases a high rental price simply makes it prohibitive, and they simply cannot perform that piece,” he said.
Cynthia Woods, conductor of the Cambridge Symphony Orchestra, said that this hurdle is particularly vexing for small institutions and the new audiences they’re trying to attract. Many of these 20th-century foreign works represent the more avant-garde directions that younger people look for in classical music. And she believes that small, affordable orchestras need to be accessible for large audiences to learn what’s out there in the music world.
“We’re doing the grassroots work so that people are willing to spend $200 on a ticket to go see the BSO,” Woods said.
Beyond the audiences who aren’t able to see performances of exciting works, or even enduring classics like “Peter and the Wolf,” Woods said that the only beneficiaries of the law are large corporations with big trademarks, often at the expense of contemporary artists. “It actually leaves less money for commissions, less money for living composers right now,” Woods said. “It’s squashing the artistic field as we see it.”
All of which leaves us with the issue before the Supreme Court — a case that Golan said he took on in order to stand up for his many peers who have suffered. But he believes the case will hinge on the attitude the Court brings to it.
“It all depends on what they decide to judge upon,” Golan said. “It’s a no-brainer that it should go in our favor, but that’s not what the argument is going to be about.” The Court’s primary directive is to comb through technicalities and line items to see if existing law has been violated.
The constitutional questions here, music critic and Boston Globe contributor Matthew Guerrieri said, concerns free speech: that is, whether Congress has violated the constitutional imperative that copyrights protect works for a “limited time,” and whether artists who count on free access to works in the public domain have a right to expect them to stay there.
“The biggest danger of this precedent is that it takes away the only goalpost in copyright law in this country that’s never been moved, and that’s public domain,” Guerrieri said.
Congress has been actively extending copyright terms for decades now, to the point of confusing, Guerrieri said, the reason it exists in the first place: to protect an author’s right to earn a living creatively for his or her lifetime, while allowing the work to become publicly accessible to new artists after those rights no longer need protection.
And the world's music is hardly the only art canon affected by the law. The copyright status of potentially millions of works will be determined in this case, including several books and films written by H.G. Wells, and Fritz Lang’s 1927 silent film classic, “Metropolis.”
As Golan sees it, this contraction of the public domain doesn’t actually serve anyone’s interests. “It’s not a question of heirs getting money versus not getting money, it’s a question of the pieces not being played,” he said.
He hopes that the Court will recognize that music derives its value from being heard. “I would venture to guess that every composer would say the most important thing for them is to have their works performed, especially 90 years after they wrote them,” he said.

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