Real Personal IP

Dispelling the Origin Myth of Music Copyrights

One of my pet peeves about American copyright jurisprudence comes from the U.S. Supreme Court opinion in Goldstein v. California.  The Goldstein case is mainly significant because it explores the constitutional boundaries between federal copyright power and overlapping state laws.  We're not here to revisit Chief Justice Burger's opinion on federal preemption, however.  Instead, I'm going to complain about one of his footnotes.

Footnotes are not always insignificant.  In Goldstein, Burger's 17th footnote has evolved into a major source of (mis-)information about the genesis of music copyright law.  He summarizes the legislative history of early U.S. copyright law thus:

"The first congressional copyright statute, passed in 1790, governed only maps, charts, and books.  In 1802, the Act was amended in order to grant protection to any person 'who shall invent and design, engrave, etch or work . . . any historical or other print or prints. . . .' Protection was extended to musical compositions when the copyright laws were revised in 1831."

Burger, like many others, has misconstrued the addition of the phrase "musical composition" to the 1831 Act of Congress.  Prior to 1831, musical works were considered to be a subset of books. For example, early American composer Anthony Philip Heinrich published a collection of songs in Western Minstrel, Op. 2, which contains a copyright notice from 1820! The 1831 copyright law simply marks when musical compositions were first treated as a separate category of protected works.

If we are completely honest with ourselves, music was one of the key inspirations for the copyright system that America received from the English Crown.  Lyman Ray Patterson's Copyright In Historical Perspective contains a telling quote from an 1681 King's Bench opinion about the Crown's authority to grant a publishing monopoly on psalm books: "The King hath always had and exercised his prerogative in printing of these and some other books... The King is head of the Church and has a particular prerogative in ecclesiastical affairs, and therefore in printing..."  This connection between the Crown and the Church has been completely foreign to the American experience for more than two centuries.  And yet, if we take a closer look at the relationship between Congress and the major music industry, it feels eerily similar to the one between the King and his favored hymnal printer in the 17th century...

We're taking the rest of the month off.  In December, we will take a closer look at a few of these unusual statutory provisions that Congress specifically enacted with the big music publishers and major label artists in mind.

The History & Future of Zoning: New York's "Centennial" v. Baltimore's Port Covington Redevelopment Project

I'm very grateful to the Land Use Prof Blog for its series on "Zoning's Next Century," which provides municipal planners and community organizers a roadmap for fair zoning laws in the 21st century. If you scroll all the way to the end, you can also find links to their earlier series on "Zoning's Centennial," which looks back at the century of American zoning that began with New York City's 1916 enactment of the first-ever city-wide comprehensive zoning law. 

Unfortunately, "Zoning's Centennial" fails to explore Buchanan v. Warley, the 1917 Supreme Court decision striking down racial segregation zoning laws in cities throughout the South.  Although the Land Use Prof Blog frequently addresses issues of racial inequality in real property law, the ugly history of Southern zoning practices seems to have been an unwelcome distraction from the progressivist narrative celebrating New York City's  pioneering achievements in zoning efficacy.

We simply cannot turn a blind eye to this terrible chapter of American history, lest we choose to pretend that the genesis of our modern cities did not have direct ties to the racial inequality.  The recent surge in racial tensions in Baltimore, St. Louis, and Dallas is undoubtedly linked to the wretched legacy of the segregation ordinances enacted in the early 20th century. Although the Supreme Court cut down this abhorrent zoning practice in 1917, tragically, the damage had been done rapidly in many major American cities.  From 1910 to 1917, apartheid-like segregation ordinances were enacted in Baltimore, Atlanta, Dallas, Louisville, St. Louis, and many other cities.  Virginia even enacted a state law encouraging localities to adopt these racially segregating zoning principles (and a large number of its local governments did enact such laws).

Lately I have heard citizens of Baltimore complain about the Port Covington redevelopment project.  The unprecedented commitment of $660 million from the City government is yet another link in the chain of inequality that maintains Baltimore's dual economy: whereas the wealthy will benefit from prime real estate opening up alongside Baltimore's downtown waterfront,  many poor and predominantly black neighborhoods are unlikely to reap the benefits of Port Covington's redevelopment.  The developers have included a few adjacent low-income communities within their plans; however, it seems that the City has not fully accounted for the impact that this major project will have on municipal funding to improve neighborhoods located further inland.

The Port Covington project largely depends on a plan that ignores Baltimore's history of racial inequality and segregation. It worries me greatly that the City is trying to create an upper-middle class destination without a clear plan to improve the housing opportunities and conditions of current residents.   If Baltimore's tax base is going to increase dramatically when all this "new money" arrives at Port Covington, then all of the City's neighborhoods deserve to know what their share of this revenue increase will be.  As much as the City is diverting funds away from poorer neighborhoods today, the people of Baltimore deserve to see that kind money spent on their neighborhoods down the line. Current residents are being asked to defer public improvements in their own neighborhoods, so that Baltimore can attract residents who haven't even arrived in the City yet! IMHO, the City owes a large interest payment to the many Baltimore neighborhoods that have been waiting for improvements over the past 100+ years.