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Copyright Battle: Who You Calling “Big Money”?

October 24, 2011

This is the second part of a series on issues brought up by legal challenges to U.S. copyright law.

Dmitri ShostakovichOn Oct. 5, the U.S. Supreme Court heard arguments in Golan v. Holder, the copyright case that tests the right of Congress to extend protection to older works in the public domain. The decision will be handed down at the end of term.

Reaction among the legal literati in the five-name law firms that service the trademark and copyright business seemed to agree with Georgetown University Law Professor Rebecca Tushnet that the court is likely to uphold the statute. Writing on SCOTUSblog, she said simply, if equivocally, petitioners “have an uphill battle, but not necessarily an unwinnable one.”

Beyond interpretations of the copyright clause and the “zero-term concept,” and the question of whether Congress can restart protection for any work by giving it a new term or whether that restoration upsets “the natural progression of public speech rights,” and the meat of the matter (whether a section of the 1994 Uruguay Round Agreements Act violates the Constitution) — beyond all the technical arguments, the debate in bar rooms and bistros is around money and what’s fair and who the real “little guy’” is in all this.

In Classical Music, Everyone Takes Risks

I spoke with someone who has a professional tie to the case and did not wish to be identified. As this person put it, if you think the “little guy” is just the composer, you’re forgetting the little publisher and the little engravers. Moreover, intellectual property is not completely unlike real property, in principle at least, and if you think of it that way, in our society the marketplace should set the price for property.

As a music publisher, you are engaged in the practice of bringing along new talent, and new composers usually don’t generate a lot of money. — Corey Field, attorney

Corey Field, an attorney who has worked in the music world for many years and at one point represented European publishers, takes this argument further. “Where does the money go that publishers charge? Part of it is paid out in royalties, but the reality is that most of the revenue from successful works goes to support new composers. As a music publisher, you are engaged in the practice of bringing along new talent, and new composers usually don’t generate a lot of money. It’s not like pop music. Think of Mahler. With classical composers it’s about the quality and quantity of work over time.”

Field goes on to make the argument that orchestras that complain about how much a piece of music costs often don’t put the whole matter in perspective:

When I was a publisher, we were approached by an orchestra going on a tour. We quoted a fee for a living composer. They were going to go city to city. This was a student orchestra and so they got a low quote. Still, they complained. ‘What is your budget for this tour?’ I asked. Without exception, the budget for the composer is always a speck. In this case, it turned out they even had a budget for luggage tags. Can you imagine? This is true. And the amount for the luggage tags was more than for the actual music they were going to play.

Or think of it this way. Imagine putting on a concert with 100 musicians and you give them each $200, and the cost of the copyright is also $200. Imagine the composer as nothing more than the 101st musician. ... There is value in the music and the fact is the vast majority of orchestras understand that it’s a drop in the bucket and they treat it as just another fee. You pay the horn player and the light bill, and you pay the composer.

[In the first part of this report, orchestra managers dispute that copyright and rental fees are insignificant. – Editor]

The Disappearing Art of Creating the Physical Score

At 53, Bill Holab has played all the roles — agent, publisher, engraver, copier, and computer consultant — some of them simultaneously. He says that either way Golan v. Holder is decided, it will not affect him personally, but any diminishment of copyright law tends to hurt the industry at as whole.

“Because we’re now in an era when Apple thinks it can dictate what music should cost and Amazon thinks it can dictate what a book should cost, protection is suspect these days.” — Bill Holub, copyist

“Because we’re now in an era when Apple thinks it can dictate what music should cost and Amazon thinks it can dictate what a book should cost, protection is suspect these days,” Holab says. “Everything is going digital, and of course a lot of young people think all recorded music should be free. That attitude is whittling away at intellectual property values, and that causes damage to creative people.”

Over the last 30 years Holab has become a master copiest and engraver. He thinks there are roughly 1,000 people who do this kind of work but only about 30 people who are “high end” copiers.

One of his clients is Philip Glass. “He writes everything on paper; he doesn’t use a computer,” says Holab, who, among other works, copied Glass’ Sophie’s Ride to the Castle, a three-and-a-half-minute excerpt from the soundtrack to the 2006 movie The Illusionist. “I would meticulously put that into a program, correcting things as I went along, doing the typesetting, making all the parts, and then reducing that to a piano score because he only does orchestra score. It all took about six months.”

Holab argues that without the money derived from copyright protection there would be no mechanism to facilitate creation: “Imagine if Porgy and Bess had gone into the public domain and there had been no one to [produce the score]. To prepare that piece, to copy, edit, and engrave, to make it performable — all 559 pages — it would cost today around $150,000. The money has to come from somewhere.”

Who Wants to Pay for Specialization?

Copyists play a vital role as editors and orthographers, making scores legible and catching and fixing actual mistakes. Holab sees himself as someone who has done well in a niche market — “I’m definitely a ‘little guy,’” he says — and adds that he has done well because the big publishers have stopped providing the service that he provides.

“I am in the business of creating something from nothing — for a living. Think about that. Do you realize how difficult and wildly speculative that actually is?” — Kenji Bunch, composer

“There’s still a great need for this expertise, and the fact that I have so much business is one proof,” he says. “Of course, if you’re writing jingles for Madison Avenue you don’t need someone like me, but if you’re doing a new opera and you want to be prepared, then you need good materials. A typical opera might have 3,000 pages of parts. I’m going to hire a student to do that?” He continues:

Look at West Side Story. It was hand copied originally, by professionals, if not professionally, and there were about 10,000 mistakes. The parts were rented out for 30 years and that’s what you got.

Actually, I was hired by Leonard Bernstein’s estate to fix those mistakes. It took many, many months. My point is that you can’t have mistakes like that; you can’t afford mistakes like that. And this is why when people say, ‘Oh, I bought Sibelius [the music editing computer program] and now I don’t have to worry,’ it’s nonsense. The fact is that if you just put the information in Finale or Sibelius and don’t do anything else, you get terrible results.

People fuss about the shape of a [musical note] tie, and is it visible, is it exactly where it needs to be? So much of this work is making minute details. That’s the dirty secret. No one wants to pay for that.

Who Watches Out for the Composer?

Holab prepares and distributes the works of a number of composers, including Kenji Bunch, “a composer to watch,” according to The New York Times. In an email correspondence I asked Bunch his view of Golan v. Holder. He hadn’t heard of it. But when asked about whether copyright laws slow down creativity or unfairly reward some artists who tend to recycle old work or live off the talents of others — an argument sometimes made — the composer responded heatedly.

“This question really touched a nerve,” Bunch writes. “To me, the suggestion that a composer’s creativity is somehow adversely affected by a gravy train of copyright revenue is really misguided, and feels like the same tired, cynical thinking that assumes tenured teachers grow complacent, union workers are lazy, even professional athletes under large contracts are just ‘phoning it in.’

“To someone who feels that artists ‘tend to recycle old works when they’re not “pushed” by adversity or uncertainty,’ I’d say the following: You want to hear about uncertainty? I am in the business of creating something from nothing — for a living. Think about that. Do you realize how difficult and wildly speculative that actually is? With everything I write, I begin by staring at a blank music sheet of paper and realizing that I have to somehow live up to the expectations not only of the commissioner who puts up money for it, but of the musicians who will play the music, the audience (and critics) that will hear it, as well as the standard the previous works from my catalog have apparently set for these people to decide to pay me to write them music.”

A Bottom Line

In the end, the simple truth is that unless music is played, no one makes any money. So if an orchestra can’t afford to hire scores, it doesn’t matter whether the publishing company has control of the rights. It’s also true that a symphony is not like a Chevy, as a publisher pointed out, and so you can’t determine its worth and a price by simply adding up the cost of the materials, the labor, and the overhead. And yes, publishers do play an important role in developing the next generation of composers.

Perhaps the bottom line for those who see this case as something other than a First Amendment issue comes from attorney Field. As he puts it, addressing the macro aspects of the case: “The future of classical music is full of complexity, but the fact is these are very misplaced arguments. There is no ‘orchestra crisis’ that has anything to do with this. If there’s a crisis, it’s about cultural attitudes, not about rental fees.”

Mark MacNamara, a San Francisco-based journalist, has written for such publications as Nautilus, Salon, the Stanford Social Innovation Review, and Vanity Fair.  Recent pieces for San Francisco Classical Voice include profiles of San Francisco Symphony Executive Director Brent Assink, and the great violinist, Midori; along with essays on Teddy Abrams’s effort to build political bridges with music and Philip Glass’s dream to build a cultural center on the Pacific Coast.


There is really no good argument for why music copyright should last longer than, say, patents, and certainly none for why they should extend past the composer's death (yes, I know, there are many arguments along those lines, but they are all bad arguments). And the idea that we should all be supporting the composer's heirs is simply ludicrous. But that's the kind of nonsense that happens when intellectual property gets treats too much as if it is "real" property. The entire house of cards on which the concept of intellectual property is based will fall down eventually, and I hope it is sooner rather than later, and that it will be replaced with something more rational. Obviously, the work of composers, copyists, publishers, and performers need some protection, but I don't the current way it is constructed will last.

I'm a composer, and I know that I and my publishers have lost money through "xeroxing" of my music. As most of the music I write is of an un(anti)commercial type, I don't bother with publishing houses. Anyway, I get more for commissions than from royalties. As many of us are using computers to write, and using our own networks to get commissions and to be performed, the value of traditional publishers is becoming less and less. I know that I'm not the only composer who has worked with publishers, who have been asked to write very derivative "ear candy" for high school band (which is more profitable). Dull, banal and obvious sells. Currently I'm writing a piece based on Webern's opus 11, now this is not public domain, but the commissioner figures that it will fly below the radar, and no one will notice. But one has to ask, Webern died before I was born, so he isn't getting any royalties, and I doubt that his estate or publisher are making much. In what way is this helping the musical community. I think that copywrites should extend only 50 years after the death of the composer.

well i shall weigh in with my 2 cents, as an author, publisher, playwright and speaker who is directly impacted by this legislation (I publish "Peter VS. the Wolf," a "derivative work" using the prokofiev music).

I see copyright law from many angles, and "fairness" is just one. the real goal of creating copyright law is to design policies that get the best possible overall result. there is much"unfairness" in both itunes and ASCAP rules that basically pay everyone the same rate per playing (altho there are endless opportunities in "mix to pix" and "grand rights," where sky is the limit.) however, overall, i think the system in place benefits far more people, as the rules are easy to follow, getting paid is easy, and now anyone can publish a book or a music CD.

at its heart, what copyright (like patents) should do is serve to promote creativity by giving creators the ability to profit from their work for a reasonable amount of time. there is always a tendency for established major players to try to game the system to benefit them, either expanding protections or lessening them, and if they have too much influence, they get a short term gain but we all lose long term.

under the current laws I have far greater protection as a music publisher than i do as a book publisher. I get paid whenever my music is performed, but people can loan out or resell my books online and i get nothing. legal, but hardly "fair." oddly enough, the average musician is a whole lot smarter about getting paid for their work than the average writer.

what gets lost in the discussion is what does not get created due to the weakness or obsolescence of copyright law. I have a fab book I would like to publish so everyone can access the info for a few dollars, but i can make far more by selling the information as a live presentation. The big corporate players who can pay my sizable fee get the benefit of the information, but small players and individuals cannot access it at all. this is the invisible cost to the "small guy" who doesn't realize how giving greater protection to a copyright holder makes information more broadly available.

nothing is free. free media is supported by someone who is selling something with the other hand. if authors cannot make money directly, then they must obtain subsidy, and when they rely on a subsidy, they lose their independence.

in england, when a book is checked out of the library, the author gets a small fee, maybe 25 cents. in europe, when a painting is resold, the artist gets a percentage. simple systems like this support the individuals who create intellectual property. if the price of IP collapses via piracy or lack of legal protection, then this discourages its production. it is hard to calculate how many good books have not been written due to inadequate copyright protection. we can only wonder.

all too often discussions of policy fail to disclose that everyone has an ax to grind, myself included. that said, copyright law in the USA is in serious need of updating, as author's rights are getting seriously trampled. length is just one part of it. - jl

Your first article did a relatively decent job of underlining the issues behind Golan vs. Holder by focusing on the actual issues behind the complaint: pulling works out of the public domain and putting them back into the copyright pool. It had nothing to do with copyright extension, which seems to be what you're trying to muckrake in this article. If you really wanted to discuss the issues inherent in the Golan complaint, you might have gone to one or more of the actual publishers that would be affected if the copyright rules revert back to pre-1994 status (Boosey & Hawkes, Schott, Sikorski, etc.) rather than to someone with no connection whatsover with Golan vs. Holder.

Bill Holab is a legend in the new music community and he excels at everything that he does. Unfortunately, that does not include being a publisher - not to mention the fact that everyone he works with is living. As is outlined in his own website (, Bill does many of the things that true publishers do (or used to do), including notesetting , printing, distributuion, etc. What he does not do - unless this has changed recently, as I've heard him speak about this more than once in recent years - he does not own the publishing rights to his clients' works, at least to the extent of what most publishers take. The standard take for a publisher vs. a composer in a publishing agreement is 90% vs. 10% of the publishing portion of royalties collected by ASCAP or BMI as well as sheet music sales; as I do not work with Bill, I don't know what his split is, but most distributors working directly with self-published composers have a much more equitable distribution of sheet music sales.

Self-publishing has become extremely prevalent in the composer community over the years because of a reaction towards this 90/10 inequity. Assisted through the ubiquitousness of professional-level notation applications and the ability to sell one's works through the internet, composers who self-publish are becoming the norm, not the exception, and because of the quickly changing environment that the internet and social networking has created, the concept of publishers as arbiters and "developers of the next generation of composers" is a relic of years gone by. Having a publisher allows a composer more time to write their music, but they pay dearly for that luxury - each composer chooses how much or how little they want to deal with the nuts & bolts of music publishing and distribution.

To put it simply: 1) To attempt to make the argument against Golan on behalf of the "little publishers" by using Bill Holab as an example is disingenuous, misleading, and uninformed. 2) To ask a living composer such as Kenji Bunch an unrelated and inflammatory question in order to get a reaction and quote is disingenuous, misleading, and lazy. 3) To attempt to equate the content of Golan vs Holder with the plight of living composers today is, once again, misleading; Golan vs. Holder has nothing to do with taking anything away from living composers or even dead American composers, as Golan himself says ( - it is specific to the composers that were covered in the 1994 GATT treaty.

You should have stuck with the first article, or if you had to show both sides of the coin, at least make it worth our while.

Interesting note about Gershwin and Bernstein being edited and improved only because their works were kept under copyright. Fact is that works of Ravel and others received improvements only AFTER they left the original copyright and new editions were published by orchestral librarians (who had kept track of errata through the years). The original publisher charged through the nose for many years for rentals and never made corrections. Now the works are for sale in much improved shape. My thought is that the same would have happen for Gershwin and Bernstein if the original copyright is allowed to lapse.

The tease of this article is the court case, but 90% is industry boilerplate "here's why we need copyright" arguments.

I see the primary issues for industry actually related to the news story as follows:
1. Copyright law is established and royalties for composers are established.
2. The growth of free public domain editions (through IMSLP and Mutopia, Choral Public Domain Library, etc.) exert serious market pressure on composers (essentially, performers can play classic works for free, making it less likely they'll pay for works under copyright).

The primary issue for artists is that, if copyright can be reestablished for works in the public domain, the current clarity of ownership around derivative works (performances and recordings, or new arrangements or editions of works in the public domain) will be jeopardized. If a composer makes an arrangement of a public domain work that is reassigned copyright, the arrangement's IP status may be called into question.

For educators, if works in the public domain, works they can presently do many things with, might regain copyright status, there is a severe disincentive to build new creative works upon the public domain. As a reminder, this is the kind of work Disney did (movies from public domain stories), so there's a serious market for this kind of work.

I've argued for the inclusion of more public domain materials for students on creative rights grounds in Music Educators Journal, and would be horrified if the public domain were to erode further (it already is eroding due to the continual extension that continually increases the term before works enter the public domain). Here's a post for those interested: