from the yes,-we-have-no-public-domain dept
As you’re probably aware, on January 1st of this year, we actually had a public domain day in the US for the first time in over two decades. Prior to that Congress (with the help of Hollywood lobbyists) had worked to continually extend copyright law whenever new works were due to go into the public domain. These extensions still seem to violate the spirit of the copyright clause in the Constitution, given that it is granting Congress permission to create such monopolies only so much as those monopoly rights “promote the progress.” Any reasonable interpretation of that clause means that copyright law should be allowed in cases where it creates the incentive to create. But it’s difficult to see how extending copyright law decades after the work has been created does anything to incentivize that work in the first place.
Nonetheless, this year, Hollywood finally realized that it was probably too much to ask to get another copyright term extension and finally let works from 1923 enter the public domain. One of the signature works of the public domain class of 1923 was the song Yes! We Have No Bananas by composers Irving Cohn and Frank Silver. As of January 1st, anyone was free to make use of that song. Indeed, in our own Public Domain Game Jam competition, we actually had not one, but two separate game entries based on “Yes! We Have No Bananas.”
But, of course, even if Hollywood wasn’t going to push for term extension, that doesn’t mean it won’t do what it always does, and pull other levers. Glenn Fleishman had posted a video of the song to YouTube in celebration of it entering the public domain earlier this year. He even titled it “Yes! We Have No Bananas, now in the public domain.” The video is of him and friends/family singing it at a New Year’s Eve Party:
However, that video has now been “claimed” by Universal Music and various subsidiaries, meaning that they could “monetize” it or force it offline, despite them literally having no rights to speak of.
Yes, We Have No Bananas entered the public domain January 1, 2019, but you do you YouTube. No way I can see to dispute this “ownership” claim? (It’s not a takedown, but an assertion.) cc @DukeCSPD @doctorow @mmasnick pic.twitter.com/sl8n8akxHD
— Glenn Fleishman (@GlennF) November 13, 2019
YouTube’s statement is fairly vague in its own right:
Dear Glenn Fleishman,
Your video “Yes! We Have No Bananas, now in the public domain”, may have content that is owned or licensed by UMPG Publishing, Shapiro Bernstein, EMI Music Publishing, and UMPI, but it’s still available on YouTube! In some cases, ads may appear next to it.
If this is your performance of a 3rd party song then you can still make money from this video. Click here to change your monetization settings.
This claim is not penalizing your account status. Visit your Copyright Notice page for more details on the policy applied to your video.
– The YouTube Team
From that, it appears to be the publishing arms of Universal Music, meaning that it’s a claim on the underlying composition itself. And that is, definitively, in the public domain. At first I thought maybe they’d be claiming the specific sound recording, which might have been made at a later date, but since this is Glenn’s own recording, and all of the listed companies are from the publishing (composition) side of things, it appears that it’s just possible (if not likely) that Universal never took this work off its own books (perhaps it has no method of removing public domain material).
What’s possibly troubling is that YouTube doesn’t even seem to offer up an option for you to point out that the work is in the public domain, and even if these entities might have once had a claim on the song, a few months back the “for limited times” part of the Constitution finally kicked in and they have no legitimate claim any more.