Vol. 3

The provocative questions raised in the Music Sales opinion and dismissed by the Eldred court must be examined through close attention to the language of the current Copyright Act, its historical origins, and the concerns that have motivated U.S. copyright policy since its inception. This essay analyzes these historical and textual factors in relation to salient aspects of the Music Sales decision. It concludes that Music Sales, in effectuating the inheritance provisions of section 304(a)(1)(C) of the 1976 Act, gives appropriate effect to the language and history of the 1976 Act. In favoring the artist’s beneficiaries (defendants) over the music publishing companies (plaintiffs), the Music Sales decision secures benefits to the artist’s estate in preference to the commercial promoter. This essay further concludes, however, that the 1976 Act, as modified by the 1998 Bono Act, might require courts to produce results dissonant with the original intent underlying the copyright regime. By securing benefit to authors and artists, and their families, the current statute appears to provide an incentive for the production of creative works. However, it may confer benefits on parties only tenuously connected to the artist in time and familial relationship and therefore beyond the scope of beneficiaries intended to profit from intellectual property rights. The final section of this essay will briefly present the Eldred decision and analyze its implications—namely, that more courts will be bound to effect the same difficult, if not disingenuous, reconciliation between the Clause and the statute, allocating the spoils of the extended term in ways that neither incent the creation of additional creative works nor enrich the discourses that depend upon them.

When I was thinking about how to begin my remarks, I thought about the lessons I had learned in a thirty-year long career, and which of those lessons I could tie to the Yale Law School. I was reminded that if I had learned anything as a law student, it was that by the time you graduate you could find a relationship between any two things in the universe, and you could also find that no relationship existed between any two things in the universe.

Recent concern over the state of patent law has led Congress to pass legislation reforming patent reexamination procedures. The most significant change made by the legislation is the introduction of what is called inter partes reexamination. The effects of this new procedure will remain uncertain for the next one to two years. However, a preliminary study of inter partes reexamination suggests it will provide a viable alternative to patent litigation in many cases.