A Public Policy Report

Second edition, revised and updated, © 2003. With additional updates in 2004 (html version only).  

For a copy of the report in pdf, click here.

This report may be reproduced in its entirety as long as the Free Expression Policy Project is credited, a link to the Project's Web site is provided, and no charge is imposed for access. The report may not be reproduced in part or in altered form, or if a fee is charged for access, without our permission. Please let us know if you reprint.

All reprints should have the following preface: Reprinted from the Free Expression Policy Project, a think tank on artistic and intellectual freedom, www.fepproject.org.

                                                PREVIOUS: INTRODUCTION: THE "DIFFICULT BALANCE"
                                                BETWEEN COPYRIGHT AND FREE EXPRESSION

I. FOUR FREE-EXPRESSION "SAFETY VALVES"

The Idea/Expression Dichotomy
Fair Use
The First Sale Rule
The All-Important Public Domain

The Idea/Expression Dichotomy

The first free-expression safety valve in the copyright system is the idea/ expression dichotomy. Copyright law protects the specific language, structure, images, or details of plot and character in a creative work (that is, their "expression"), but it does not protect facts or ideas. As the Supreme Court explained in a recent case that involved the reproduction of information in a telephone directory, copyright "rewards originality, not effort." Thus, collecting and publishing facts (in that case, names, addresses, and telephone numbers) does not possess even "the minimal creative spark required by the Copyright Act and the Constitution."15

As for ideas, the law recognizes that authors and artists copy them all the time. The idea of star-crossed lovers whose families object, and whose passion comes to a tragic end, would not be copyrightable even if Shakespeare had written his version of the story in 1994 instead of 1594. Of course, Shakespeare took the plot of not only Romeo and Juliet but most of his other masterpieces from existing sources. The idea/expression dichotomy allows artists and writers to draw freely on the themes, myths, and images that fill our culture.

Of course, drawing the line between protected "expression" and unprotected facts or ideas is not always easy. Even without word-for-word copying or direct paraphrasing, a work that bears "substantial similarity" to an earlier creation will usually be considered a "derivative work," and therefore an infringement of copyright. How to distinguish between the legitimate borrowing of ideas and the illegal creation of a "derivative work" can be a tricky business.

For example, in one case, a federal court found that software designed to help dentists organize their offices violated the law even though it did not copy anybody else's computer code, because its "structure, sequence, and organization" were "substantially similar" to an earlier software program. The nation's leading treatise on copyright said that the court's rationale in this case was wrongheaded, because "providing protection for such amorphous concepts as the 'overall structure'" of a software program undermines the idea/expression dichotomy.16

But these same authors also thought that Stephen Sondheim and Leonard Bernstein's borrowing of plot elements from Romeo and Juliet for their classic Broadway musical, West Side Story, would have violated Shakespeare's copyright, had he owned one. They admitted that not all courts would find the details of West Side Story to be "a sufficiently concrete expression of an idea so as to warrant a finding of substantial similarity."17 But this example illustrates how shifting and unpredictable the idea/expression dichotomy can be.

Fair Use

Fair use is probably the best-known of the free-expression safety valves. It allows anyone to copy, quote, and publish parts of a copyrighted work for purposes of commentary, criticism, news reports, scholarship, caricature, or even, as we have seen, recording and time-shifting of television programs. Not only does fair use allow culture to thrive; it also prevents publishers and authors from suppressing criticism and parody of their works.

So, when the rap group Two Live Crew borrowed the melody and parodied the words of Roy Orbison's pop song, "Oh! Pretty Woman," in a vulgar style that the copyright holder did not appreciate, the Supreme Court indicated that it was probably fair use. Even though intended for commercial sale, Two Live Crew's raunchy version, with lines such as "big hairy woman" and "two-timin' woman," served the important cultural purpose of mocking the "white bread" original. And to be effective, said the Court, parodists must quote enough of the copyrighted work to conjure it up in listeners' minds.18

The Nation magazine had a less fortunate experience in the 1980s after it quoted about 300 words from ex-President Gerald Ford's about-to-be-published memoir without permission. The Nation's quote was part of a 2,200-word news scoop highlighting Ford's description of his pardon of Richard Nixon (Ford's predecessor in the White House), for possible crimes during Nixon's presidency. In reaction to The Nation's scoop, Time magazine canceled its "first serial rights" to publish highlights from Ford's book.

The Supreme Court, identifying with the publisher's plight in losing this income from first serial rights, rejected The Nation's claim of fair use. But three justices dissented, arguing that the scoop served the public interest, and accusing the Court majority of a "constricted reading of the fair use doctrine" that ill-served the "progress of arts and sciences and the robust public debate essential to an enlightened citizenry."19

More recently, the writer Alice Randall faced a fair-use battle when she borrowed characters and plot from Margaret Mitchell's classic Gone With the Wind to produce The Wind Done Gone, a fictionalized critique of the earlier novel's racist stereotypes. The Wind Done Gone mentions homosexuality and interracial sex, both of which the Mitchell estate prohibits in its policy for licensing "derivative works." A trial judge was persuaded to ban the novel as an unauthorized sequel. A federal appeals court reversed, finding The Wind Done Gone to be a parody, and hence, fair use.20

As these examples suggest, fair use is close to the heart of free expression. If copyright owners could control – and effectively ban – every quotation or other use of their work, they would exercise a powerful form of censorship. An example of this phenomenon involved the Church of Scientology, which holds the copyright to religious texts including New Era Dianetics for Operating Thetans, or "NOTs." A critic of the Church posted the NOTs online without permission, to demonstrate what he believed was their criminal nature, but a federal appeals court rejected his claim of fair use.21

In a later case also involving religion, the Worldwide Church of God was able to suppress a breakaway sect's use of prophetic texts by Herbert Armstrong, the Church's founder. The Church elders no longer wanted the texts in circulation on account of "ecclesiastical errors." The breakaway group was thus unable to distribute what it believed were important religious works. A federal court of appeals upheld the copyright claim, over the dissent of one judge who did not think that copyright law should be used to suppress religious works, and who felt that the splinter group's noncommercial and spiritual motivation entitled it to a finding of fair use.22

So essential is the fair use concept to free expression that it has also made its way into trademark law. In a case involving a rock song that made fun of the Mattel Company's fabulously successful Barbie Doll, a federal court of appeals ruled that the song was a constitutionally protected parody. The judges said that even if some consumers might be confused and think the song was sponsored by Mattel (likelihood of confusion being the basis of trademark infringement), the free-expression right of the rock group to parody Barbie took precedence.23

On the other hand, the enthusiasm of movie, book, and music fans is often squelched by unappreciative copyright owners. Internet "fan sites" have shut down after media corporations threatened their proprietors with suits for trademark and copyright infringement. The rock band Phish claims control over all fan sites and forbids them from containing "defamatory" or "offensive" content. Twentieth Century Fox sent cease-and-desist letters to Buffy the Vampire Slayer fan sites, driving, as one reporter quipped, "a stake into the hearts of Netizens everywhere." And Warner Brothers has suppressed sites containing irreverent sexual parodies of such Looney Tunes favorites as Bugs Bunny, Daffy Duck, and Tweety, claiming that these "beloved characters" should not be maligned by lascivious humor.24

Corporations also try to suppress online "cybergriping" by acquiring Internet domain names that contain the suffix "sucks" - commonly used to signal a site critical of corporate activities or products. The World Intellectual Property Organization's online arbitration board has allowed some sites to continue - for example, "wallmartcanadasucks.com" - but has transferred the domain names of others, such as "guinness-beer-really-sucks.com," to the complaining corporation, which can then make sure that the name is never again used for a site offering parody or criticism of its practices.25

In one leading case involving the "sucks.com" phenomenon, a judge ruled that a reasonable consumer or Web surfer interested in the Bally chain of fitness clubs would not be confused by a "Bally sucks" Web site, and that allowing Bally to shut down the site would unacceptably allow trademark law "to eclipse First Amendment rights."26 But most of these disputes never make it to court, and threats of litigation are often enough to suppress criticism of corporate practices and products.

Similarly, wealthy organizations ranging from the Walt Disney Company to the National Basketball Association often use "cease-and-desist" letters to intimidate critics and chill "appropriationist" art.27 The rap music technique of sampling has been inhibited by lawsuits that challenge the borrowing of even a few bars of a lyric or melody for purposes of incorporating them into a new musical creation.28

Indeed, the fact that an injunction was entered halting publication of The Wind Done Gone – even though it was eventually reversed on appeal – demonstrates how subjective and unpredictable fair use can be. The four factors that enter into a finding of fair use, as enumerated in the copyright law, all involve judgment calls.29 As one scientist has written, the legal definition of fair use is "maddeningly vague. ... Even a well-trained copyright lawyer cannot say with certainty where the line lies between fair and unfair uses."30

The First Sale Rule

A third critical safety valve is the first sale rule – the concept that copyright holders only control the first sale of their works, after which purchasers may give them away, sell them, or otherwise pass them along to friends, colleagues, secondhand stores, libraries, schools, Salvation Army outlets, flea markets, auctions, or any other place where the public can re-use them. Video stores can rent tapes to countless customers, and libraries can likewise lend books to countless borrowers – who in turn can lend them to their friends, as long as someone returns them on time.31

The first sale rule aids immensely in the spread of knowledge, entertainment, inspiration, and ideas. It is also a pragmatic recognition of the limits of copyright enforcement. For few of us would want to live in a world where corporations or government agents monitor and control what we do with every book, computer program, or CD that we buy. Yet through encryption, mandatory clickwrap agreements, and other "DRM" techniques, the copyright industry has been able to undermine the rights of the public under the first sale rule.

Compared to fair use, there have been relatively few legal disputes involving the first sale rule. Still, there are some close and difficult questions. In one case, a court ruled that tearing illustrations from a legitimately purchased book and mounting them on ceramic tiles for resale was not protected by the first sale rule. But in a later case, a different court found that mounting lawfully acquired cards on tiles was protected.32 More recently, software companies have been able to circumvent the first sale rule by "licensing" rather than selling their products.33

The copyright industry has persuaded Congress to enact two major exceptions to the first sale rule - one for music and the other for computer software. Although a purchaser of a CD can still give or sell it to a friend, anyone with a "commercial purpose" is forbidden, under the Record Rental Amendment of 1984, from renting or lending musical recordings.34 The industry feared that without this exception, music lovers would rent their favorite recordings and then copy them onto tape for their home collections, instead of buying them. Libraries and other nonprofit educational institutions have an exemption from the law, and are still permitted to lend musical works.

In 1980, the industry carved out another exception to the first sale rule for software. The justification, according to the U.S. Copyright Office, was that computer programs are "the only type of copyrighted work that can be easily, quickly, totally, and perfectly copied by an infringer."35 Again, nonprofits are exempted.

The authors of the leading treatise on copyright law criticize this erosion of the first sale rule. They argue that a book buyer should have the same right to distribute the book to others regardless of whether it is in "hardcopy" or electronic form.36 Likewise, it is questionable whether the computer software industry should, through licensing and other contracts, be able to undermine the fundamental principle that after the first sale of a work, copyright owners have no further right to control its distribution.

The All-Important Public Domain

The fourth and perhaps most important free-expression safety valve is the public domain. The Copyright Clause requires that after a "limited time" of monopoly control, creative works must enter the public domain, where they are free for anyone to publish, sell, adapt, translate, record, or perform. And "limited time," as we have seen, meant only 14 years, renewable for another 14, under the nation's first copyright law. As the 19th century legal scholar and Supreme Court Justice Joseph Story wrote, the purpose of the Copyright Clause was to "admit the people at large, after a short interval, to the full possession and enjoyment of all writings and inventions without restraint." 37

One reason an expanding public domain is so important is that creative works grow from past achievements; they do not, as law professor Jessica Litman quipped, just rise full-grown, like "Aphrodite from the foam of the sea."38 Justice Story explained not long after the Copyright Clause was written that "few, if any, things" are "strictly new and original throughout. Every book in literature, science and art borrows, and must necessarily borrow, ... much which was well known and used before."39 From Shakespeare to James Joyce, Michelangelo to Andy Warhol, creators and inventors have echoed, copied, mocked, and transformed previous works. Rock music, folk, blues, and jazz all borrow themes, riffs, and melodies from earlier creations.40

In addition to this vital role in fermenting creativity, the public domain also promotes preservation and scholarship. Historians can reproduce pictures, letters, sound recordings, and other expression without pursuing the frequently futile quest for copyright permission. Even when owners can be found, they may refuse permission, or impose unpalatable conditions. Reportedly, the estate of songwriter Lorenz Hart refuses any biographer who mentions Hart's homosexuality to reprint his lyrics. Likewise, the playwright Lillian Hellman was reputed not to have licensed any except "first-class" productions of her works. Ted Hughes, widower of the poet Sylvia Plath, strictly controlled what biographers and anthologizers could say about her life and their stormy marriage in exchange for permission to quote her poems or letters.41

For scholars and archivists, fair use is not an adequate substitute for the public domain. It is often impossible to predict whether a particular borrowing will be considered fair by a judge or jury, and, perhaps more important, these issues are seldom decided in court – most publishers simply will not print copyright-protected documents without permission. This includes even unpublished letters, drawings, and photographs.

Finally, popular access is greatly enhanced once works enter the public domain. Material that is unavailable, or available only in expensive editions, can, once copyright expires, be published and distributed in wide variety, more cheaply, and often with new introductory or supplementary texts. The year after Willa Cather's My Antonia entered the public domain, seven new editions appeared, with different introductions and varying prices – a pattern that is typical.42 Libraries can freely copy and disseminate letters, photographs, and news articles once they are in the public domain. Amateur or impecunious theatrical troupes can perform musicals, plays, and poems without paying often prohibitive licensing fees.

The copyright industry, by and large, takes a less enthusiastic view of the public domain's virtues. Media companies say that works are neglected and decay when nobody with monopoly control is motivated to preserve them. Paramount Pictures Vice President Scott Martin recently gave an example: the classic Frank Capra movie, It's a Wonderful Life, which entered the public domain at the end of its first copyright term because its owner failed to file a timely renewal application. As a result, Martin wrote, "the film was endlessly broadcast by local stations and cable channels looking for no-cost programming." It was "sliced and diced" to fit into time slots between commercials. "By the 1980s," he said, "there were multiple versions of the film, all in horrid condition."43

But once the owners of the underlying rights to the story and music asserted their claims, Martin says, the film was spruced up, with marvelous results. "Only after the copyrights in the underlying rights were enforced was anyone willing to spend the money necessary to restore and preserve the film."44

There is another side to this story, of course. Anyone who has been on an airplane or watched movies on TV knows that media companies frequently allow their copyright-protected works to be "sliced and diced" (and bowdlerized to eliminate naughty words or scenes). The public domain thus cannot be blamed for insults to the integrity of creative works.

Perhaps more important, all of those allegedly "horrid" copies of It's a Wonderful Life enabled millions of people to see it. The film "was actually a box-office flop at the time of its release, and only became the Christmas movie classic in the 1960s due to repeated television showings at Christmas-time."45 It was thanks to the public domain that the film achieved classic-movie status.

Finally, Martin's argument that works will only be preserved if their owners have an incentive to keep them profitable applies to relatively few creations. For most works, which no longer have commercial value, entry into the public domain is crucial because only then can archivists preserve them without going through the laborious, expensive, and often futile process of trying to locate and secure permission from copyright owners.

The public domain is a critical part of the "difficult balance" underlying the Constitution's Copyright Clause. Yet in the past century, Congress has stretched the "limited time" contemplated by the Copyright Clause to the point where it now, as one scholar quipped, resembles perpetual copyright "on the installment plan."46 From the original 14 years, renewable for another 14, in the 1790 Act, Congress in 1831 extended the term to 28 years, renewable for another 14; and again in 1909, to 28 years, renewable for another 28.47 Between 1962 and 1974, Congress enacted nine short-term extensions, to prevent older works from entering the public domain while it prepared a massive new copyright law that finally passed in 1976.48

This 1976 law, following the international Berne Convention, adopted a flexible – and lengthy – "limited time": the life of the author plus 50 years for individuals and their estates; 75 years from publication or 100 years from creation, whichever expired first, for corporations holding copyrights on works created by their employees (so-called "works made for hire").49

Then came the Sonny Bono Copyright Term Extension Act of 1998, which added another 20 years across the board. Under the Sonny Bono law, the "limited time" of copyright is now the author's life plus 70 years for individuals, and 95 years for most copyrights held by corporations.50 Like the previous extensions, the law expands copyright not only for future works, but for existing ones, even though their authors - many of them now dead - obviously don't need any additional incentive to create them.

NEXT: FREEZING THE PUBLIC DOMAIN

ENDNOTES

15. Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340, 363-64, 349 (1991). The idea/expression dichotomy is reflected in the copyright law, 17 U.S. Code §102(b). On the four main free-expression safety valves, see Yochai Benkler, "Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain," 74 N.Y.U. Law Review 354 (1999).

16. Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1248 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987); 4-13 Nimmer on Copyright §13.03[A][1][d].

17. 4-13 Nimmer on Copyright §13.03[A][1][b].

18. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

19. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), id., 579 (Justices Brennan, White, & Marshall dissenting).

20. See SunTrust Bank v. Houghton Mifflin Co., 136 F. Supp.2d 1357 (N.D.Ga. 2001), vacated, 252 F.3d 1165 (11th Cir. 2001), reversed, 268 F.3d 1257 (11th Cir. 2001); Wendy Gordon, "Authors, Publishers, and Public Goods: Trading Gold for Dross," 36 Loyola of Los Angeles Law Review, fall 2002, llr.lls.edu/eldred/ gordon.pdf (accessed 7/29/03), p. 20. The case later settled: the Mitchell estate agreed to drop its suit and in exchange, Randall's publisher made a contribution to Morehouse College in Atlanta. American Library Association Newsletter on Intellectual Freedom, July 2002, p. 177.

21. Religious Technology Center v. Henson, 1999 U.S.App.LEXIS 11828 (9th Cir. 1999), cert. denied, 528 U.S. 1105 (2000).

22. Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110 (9th Cir. 2000), cert. denied, 532 U.S. 958 (2001).

23. Mattel, Inc. v. MCA Records, Inc. 296 F.3d 894, 904 (9th Cir. 2002), cert. denied, 123 S.Ct. 993 (2003).

24. See "Phish Fan Web Site Policy," www.phish.com/guidelines/index.php? category=2 (accessed 9/20/03); Julie Keller, "Buffy Cyberfans Slayed By Fox," Eonline.com, Dec. 23, 1999, www.eonline.com/News/Items/Pf/0,1527,5782.00. html (accessed 9/8/03); Letter from Warner Brothers to Jonathon Woodward, Nov. 8 1995, www.io.com/~woodward/@cme/served.txt (accessed 9/8/03).

25. See Wal-Mart Stores, Inc. v. wallmartcanadasucks.com, Case No. D2000-1104, WIPO Arbitration and Mediation Center, Nov. 23, 2000; Diageo plc v. John Zuccarini, Case No. D2000-0996, WIPO Arbitration and Mediation Center, Oct. 22, 2000. In the Zuccarini case and an earlier case involving a number of variations on "Wal-Mart sucks," the WIPO judges found the corporate critics guilty of harassing the company rather than genuinely wanting to exercise free-speech rights. But a dissenting judge argued, in a case involving "vivendiuniversal sucks.com," that bad behavior should not be a relevant consideration where the result of a mandatory domain name transfer is to allow corporations to acquire and then suppress "sucks.com" Internet addresses, which are well-known for political commentary. Vivendi Universal v. Mr. Jay David Sallen, Case No. D2001-1121, WIPO Arbitration and Mediation Center, Nov. 7, 2001.

26. Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp.2d 1161, 1166 (C.D. Cal. 1998).

27. For a sampling of such cease-and-desist letters, see Chilling Effects Clearinghouse, www.chillingeffects.org (accessed 10/16/02). Parodists are not always intimidated by threatening letters. For example, a letter sent by lawyers for Vice President Dick Cheney in early 2003 to the managers of a site parodying the Bush Administration asserted that images of Lynne Cheney with a red clown nose constituted an unlawful use of her "name and picture for purposes of trade" and portrayed her "in a false light." The New York Civil Liberties Union vowed to provide a First Amendment defense for the parodists if Cheney made good on his threat to sue. Benjamin Weiser, "Web Site Hears From Cheney After Parody Involving Wife," New York Times, Mar. 6, 2003, p. A24.

28. Grand Upright Music Ltd. v. Warner Brothers Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991) (finding Biz Markie album "I Need a Haircut" violated copyright by using three words and some music from "Alone Again (Naturally)" by Gilbert O'Sullivan). Some later cases reject this rigid approach and look to whether the sampling involves "substantial similarity" or only "fragmented literal similarity" to the original work. E.g., Williams v. Broadus, 2001 U.S. Dist. LEXIS 12894 (S.D.N.Y. 2001); Bridgeport Music v. Dimension Films, 230 F. Supp.2d 830 (M.D. Tenn. 2002) (update: this decision finding copying of one chord to be "de minimis" was reversed by the Court of Appeals, which ruled that any unauthorized copying from a sound recording, no matter how small, is an infringement of copyright. Bridgeport Music, Inc. v. Dimension Films, 2004 U.S. LEXIS 18810 (6th Cir. Sept. 7, 2004)).

29. The four main factors that determine whether the fair use defense will defeat a claim of copyright infringement are: "(1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole;" and "(4) the effect on the potential market for or value of the copyrighted work." 17 U.S. Code §107.

30. Edward Felten, "A Skeptical View of DRM and Fair Use," Communications of the ACM, Apr. 2003, Vol. 46, No. 4, pp. 57, 58.

31. The first sale doctrine is codified in the copyright law: 17 U.S. Code §109(a).

32. Miracle Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988), cert. denied, 489 U.S. 1018 (1989); Lee v. Deck the Walls, 925 F. Supp. 576 (N.D. Ill. 1996).

33. Adobe Systems v. One Stop Micro, Inc., 84 F. Supp.2d 1086 (N.D. Cal. 2000).

34. 17 U.S. Code §109(b); for the history of this exception to the first sale rule, see 2-8 Nimmer on Copyright §8.12.

35. Computer Software Rental Amendments Act of 1990, 17 U.S. Code §109(b); see 2-8 Nimmer on Copyright §8.12.

36. 2-8 Nimmer on Copyright §8.12.

37. Joseph Story, 3 Commentaries on the Constitution of the United States §1147 (Boston: Hilliard Gray & Co., 1833) (emphasis added).

38. Jessica Litman, "The Public Domain," 39 Emory Law Journal 965, 966 (1990).

39. Emerson v. Davies, 8 F. Cas. 615, 619 (No 4,436) (C.C.D. Mass. 1845), quoted in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994).

40. See Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: NYU Press, 2001), pp. 117-48; Brief of Amici Curiae National Writers Union et al. in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., 2001 Term), p. 11.

41. Written testimony of Dennis Karjala before House of Representatives Committee on the Judiciary, Subcommittee on Courts and Intellectual Property, on H.R. 989 (July 13, 1995), n.8, reprinted in The Copyright Term Extension Act of 1995, Hearing Before the Committee on the Judiciary, United States Senate, on S. 483, 104th Congress, 1st Session (Sept. 20, 1995), p. 83 n.8; Joyce Wadler, "The Play's His Thing, Even if You Never Heard of It," New York Times, Oct. 9, 2002, p. A28; Frances McCullough letter, "Sylvia Plath's Journals," New York Review of Books, Jan. 18, 1990; Janet Malcolm, The Silent Woman: Sylvia Plath and Ted Hughes (New York: Knopf, 1994).

42. See Minority Views of Senator Hank Brown, Report of the Senate Committee on the Judiciary on the CTEA, Senate Report No. 104-315, 104th Congress, 2d Session (July 10, 1996), p. 34 (new editions of My Antonia in 1994 cost "from $2 to $24, thereby making the story available to many more people").

43. Scott Martin, "The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection," 36 Loyola of Los Angeles Law Review, fall 2002, llr.lls.edu/volumes/v36-issue1/martin-original1.pdf (accessed 7/29/03), pp. 40-43.

44. Id.

45. "It's a Wonderful Life," www.filmsite.org/itsa.html (accessed 12/31/02).

46. Statement of Professor Peter Jaszi, printed in The Copyright Term Extension Act of 1995, Hearing Before the Committee on the Judiciary, United States Senate, on S. 483, 104th Congress, 1st Session (Sept. 20, 1995), p. 72.

47. Act of Feb. 3, 1831, ch. 16, §16, 4 Stat. 439; Act of Mar. 4, 1909, ch. 320, §§23-24, 35 Stat. 1080-81.

48. Public Law 87-668, 76 Stat. 555 (1962); Public Law 89-142, 79 Stat. 581 (1965); Public Law 90-141, 81 Stat. 464 (1967); Public Law 90-416, 82 Stat. 397 (1968); Public Law 91-147, 83 Stat. 360 (1969); Public Law 91-555, 84 Stat. 1441 (1970); Public Law 92-170, 85 Stat. 490 (1971); Public Law 92-566, 86 Stat. 1181 (1972); Public Law 93-573, Title I, §104, 88 Stat. 1873 (1974).

49. Public Law 94-553, §304, 90 Stat. 2572 (1976).

50. Corporate copyrights are generally the result of works made for hire – that is, made by corporate employees or contractors. The Sonny Bono law made the term for such works 95 years from the date of first publication or 120 years from the date of creation, whichever expires first. This also applies to anonymous or pseudonymous works. Public Law 105-298, §102, 112 Stat. 2827 (1998), amending 17 U.S. Code §§301-304.