What's up with that?

There’s an American Express and Microsoft pitchman who apparently used to have a comedy show that, he bragged, was a “show about nothing.” Somehow he managed to create 9 seasons of DVDs out of nothing and a decade later is still milking that celebrity for $85 million/year.

I never watched the show, except occasional snippets in reruns or when trapped on an airplane. However, I recall that one of the favorite phrases of the protagonist (I’ll call him “Jer”) was “what’s up with that?” Apparently that made it into our shared cultural understanding, even if not to the same degree as “yada yada.” More on Jer in a minute.

I’m guessing that some readers have heard that another celebrity (The Gloved One) died earlier this month and had a blowout funeral. Probably fewer people recall that in 1985 he paid $47.5 million to buy the copyrights to all the Beatles songs, which is either the sort of one-of-a-kind collectible only rich people an afford or a high-profile way to convert cash into an income stream. (Evidence of the latter is that one estimate says the investment is now worth billions.) John Lennon doesn’t care anymore, but apparently Paul McCartney still performs these songs now and again.

What’s odd is apparently is that Jackson didn’t really buy all rights — because Congress retroactively created a loophole. For anyone interested in IP law, I recommend the posting by Hollywood blogger Chris Arledge. One excerpt:

People not familiar with copyright law might be surprised to hear that McCartney-one-half of music’s most-successful songwriting duo-must pay royalties to perform his own hit songs. The fact certainly seemed to grate on McCartney, who frequently made mention of it in interviews. But even more surprising, at least to those not acquainted with the intricacies of copyright law, is that Sir Paul will one day be able to re-acquire the rights to his music without even having to pay to buy them back.

This is true because of the Copyright Act’s reversion provisions, which allow the original author of a copyrighted work to reclaim the work many years after assigning it away. It is this same right to reclaim lost copyrights that will soon make millionaires of the heirs of Joe Shuster and Jerry Siegel, Superman’s creators, when they conclude their pending lawsuit against Warner Brothers.

(For younger blog readers, Superman is a fictional character who co-starred with Jer in those American Express ads.)

Intellectual property law exists for two reasons: to create incentives for creators, and (like all legal rights) provide a stable institutional framework for creators and users, buyers and sellers, competitors and complementors. Some of the trade-offs make sense: long IP term=more incentives, short IP term=more derivative works. If you want one outcome, then you put your thumb on that side of the scale.

However, indeterminacy of term makes for an uncertain property right. One example is the 1998 Mickey Mouse Copryight Extension Act — there is no economic rationale for lengthening the term ex post facto since it provides no incentive for something that was long since created. Meanwhile, the indeterminate term of sale provided by copyright reversion means that the buyer of the property right doesn’t know what it is buying, leaving the actual rights granted subject to the whims of the seller (or perhaps the courts).

When I mentioned this article to a legal blogger, her observation was that “Termination rights are an aspect of copyright law many people find strange.” I guess “strange” is the polite way a law school professor says “makes no sense whatsoever.”

I prefer to quote Jer the stand-up pitchman: “What’s up with that?”