Mozart's Requiem and the public domain

I had the opportunity this past weekend to see the director's cut of Amadeus at the Alamo Drafthouse, which was being hosted by the Golden Hornet Project (GHP) as a fundraiser for their project finishing Mozart's Requiem. Being an Austin-based organization, GHP is doing this work "in collaboration with composers from the rock, hip-hop, video game and avant garde music scenes" and producing a version far different from what Mozart ever imagined—by, for example, modifying the "Larcimosa" movement to use the musical structure of a modern movie trailer. During the live preview performance of the new "Larcimosa", I started thinking about how different projects like this would be had Mozart's Requiem been protected by modern copyright law.

Commissioned as a work for hire, the Requiem would, under the terms of the Mickey Mouse Protection Act (AKA the "Copyright Term Extension Act" or CTEA), be subject to a 95-year copyright. To get an idea of how long a span of time this is, look at the maps below. When Mozart died in December 1791, the United States had just established itself as a new nation, with a three year old Constitution (still missing the Bill of Rights) and 14 states. By the time a 95-year copyright term would have expired in 1886, the U.S. was a nation of 38 states with what we would recognize as its modern shape. By 1886, the American Civil War had been fought, the Transcontinental Railroad built, and the telephone invented.

The United States in 1791 (left) and in 1886 (right). Pink regions denote states, yellow U.S.-controlled territories, and gray territories controlled by other countries. Images by Golbez via Wikicommons.

In 1791 Europe, Louis XVI of France still had his head, Spain was still a dominant colonial power, and the Holy Roman Empire still existed. By 1886, France and Spain were dramatically weakened, the HRE had crumbled, and imperial power was now wielded by England and the newly unified nations of Germany and Italy.

Put another way, had Mozart's Requiem been a new work covered by the CTEA, it would be in the public domain today and freely available for GHP to compose their movie trailer version of "Larcimosa" only if the original had been written prior to 1917.

So, how exactly does such a long copyright term help "promote the progress of science and useful arts"? Is there really a work of art so wonderful that its creation can be incentivized only by offering a period of protection lasting longer than nearly all human lifetimes?

This is not to say that everything should be public domain should upon creation. Artists, writers, and yes, even scientists deserve compensation and legal protections for the intellectual property that they create. But I genuinely find it hard to believe that those artists, writers, and scientists I know would stop producing if tomorrow their copyrights went from the current 95-years (or lifetime + 70 years) back down to the original 14-year term (renewable once to 28-years).

More importantly, creative endeavors build upon what has come before—art and science thrive when we have a vibrant remix culture. I enjoyed last night's performance precisely because GHP didn't have to ask permission or pay a royalty to remixed eight bars of a requiem mass. I look forward to 2014 when GHP's fully completed work is supposed to be released. But I sincerely hope that the opportunity for someone to take that work and freely create some new vision of Mozart's Requiem comes along in 2028 or 2042—not in 2109 as current law dictates.

CTEA and its follow-on acts (DMCA, Eldred v. Ashcroft, and now SOPA/PIPA) have closed the doors on our public domain and our remix culture. It's time to push back at Congress (and, let's face the truth, its RIAA/MPAA underwriters) to open those doors again.