Re: benefits of the public domain and limited copyright terms?

On Wed, 17 May 2000, Tyler T. Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> Some copying is the very essence of creativity.

In music, some techniques of creative copying are old enough to have Latin names, e.g. "contrafactum" and "cantus firmus". Another more recent sort of creative musical copying tends to go by titles like "Variations on a theme by N."

An example of an 18th century music-master encouraging creative copying can be found at:

   http://www.telepath.com/hrothgar/moc.html

The short motives in Mattheson's example might (or might not) be considerd "music a faire" under current U.S. law. But the technique Mattheson describes is copying either way. (P.S. Constructive comments on my translation from German will be appreciated.)

Another 18th century example of creative copying can be found at:

   http://www.telepath.com/hrothgar/muffat_to_handel_c.html

This second web page demonstrate's Handel's copying, but because it is still under construction it doesn't yet show Muffat's and Handel's harmonizations, which would give a more complete picture of Handel's reliance on Muffat on the one hand, and his original contribution on the other.

In letters, too, we have many examples of creative copying. The following lyric appeard in David Herd, _Ancient and Modern Scottish Songs, Heroic Ballads, etc. In two volumes_, 1776.

"Cock up your Beaver" (Herd 2,205)

When first my dear Johny came to this town, he had a blue bonnet, it wanted the crown; but now he has gotten a hat and a feather, Hey, my Johny lad, cock up your beaver.
Cock up your beaver, cock up your beaver, Hey, my Johny lad, cock up your beaver;
cock up your beaver, and cock it nae wrong, we'll a' to England ere it be lang.

Robert Burns (1759-1796), the Scots poet, copied and modified this lyric to produce the following:

"Cock up your Beaver" (Burns)

When first my brave Johnie lad came to this town, He had a blue bonnet that wanted the crown, but now he has gotten a hat and a feather-  brave Johnie lad, cock up your beaver!

Cock up your beaver, and cock it fu' sprush! We'll over the border and gie them a brush; There's somebody there we'll teach better havior-  brave Johnie lad, cock up your beaver!

A maximalist approach to copyright, whether "natural rights" or "neoclassicist", MIGHT allow for copying of ideas and scenes-a-faire. But no such proposal that I know of would ever allow for the free creation of derivatives such as the overture to Handel's _Theodora_ and Burns's "Cock up your Beaver". Under a maximalist regime, only wealthy or well-connected authors would have complete freedom to create derivative works. In the U.S., though, one of the reasons we have copyright at all is to cobble together a regulatory scheme under which authors have a chance of working, free of the patronage and oversight of the wealthy and mighty. A maximalist policy of pricing poorer artists out of entering the derivative-work market is in flat contradition to this constitutional policy.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Fri May 19 2000 - 03:58:19 GMT