I would almost be sympathetic to Mark Helprin's argument that copyrights should last forever, and that his great-great grandchildren, rather than the publishers of Barnes & Noble Classics, should profit from Winter's Tale - almost but not quite, both for the reasons Matt proposes and for others - if he were simultaneously arguing for a far more lenient definition of "fair use." This, to my mind, is the real way that copyright and intellectual-property laws stifle creativity - not by preventing five different publishers from bringing out competing editions of the same book, but by preventing other artists from piggybacking on existing works and making something new out of them. (Unless they're willing to confine themselves to parody.) Our language's greatest writer, remember, was a shameless thief, copying themes and plots and characters with abandon to create his plays. Yet if a twenty-first century Shakespeare wanted to take, say, the plot of Star Wars as the jumping-off point for his genius, his Tragedy of Anakin Skywalker would have to sit unpublished on a hard drive for seventy years after George Lucas's death. Copyright law, to my mind, should give an artist control over the work itself, but not the world it summons up: If I want to publish a novel set at Hogwarts or a sequel to Gone With the Wind, J.K. Rowling and the Mitchell estate shouldn't have veto power.
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Free Culture
22 May 2007 10:55 am
Comments (21)
indeed. one of the main justifications of the patent system is that it incentivises innovators to release technical information for others to use -- in return for which, they get a temporary monopoly.
As a minor point, JK Rowling has voluntarily allowed aspiring (mostly teenage) authors to use her world and her characters in online fiction- her rules are that no money be made and that her ownership be acknowledged in the header. As a result, a whole world of "Harry Potter fanfiction" exists online- most of it terrible, but occasionally quite good.
She has also allowed websites like Mugglenet and The Leaky Cauldron, which write about her characters and make money off ads.
I'd like to see a social climate that encouraged successful authors to do the same. That would go a long way toward solving the problem.
Re: Surely if there is any legitimate purpose to a copyright at all, it would be to prevent someone from writing a book using your characters and fictional setting, doing and saying things you may not approve of, and passing it off as a "sequel" without your consent.
So do you disapprove of what Shakespeare, Goethe, Aeschylus et al did when writing their “rip-off” works? Or is there a sunset provision which would allow, say, Middle Earth to pass into the public domain once a certain length of time (say a century) has passed. I used Tolkien deliberately here, since he actually envisioned his works becoming a public mythology that others could mine in later days, but his heirs have steadfastly resisted any such attempts and instead continue to milk Middle Earth as their private cash-cow by publishing everything the old man ever wrote except maybe his grocery lists.
Helprin writes: "Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else?" What Helprin fails to acknowledge is that the economic value actually being "confiscated" is exceedingly small in proportion to the total economic value of the copyright. This is due to the time value of money. A dollar today is worth more than the promise of a dollar tomorrow, because the dollar today will earn interest over the course of the upcoming day. By the same reasoning, a dollar today is worth MUCH more than the promise of a dollar 70 or 100 years from now. The exact numbers would depend on the interest rate, the life expectancy of the author, and the present-day probability that the work will retain commercial value in the far future. But I would guess that the increase in the present-day value of the copyright to Helprin's novel would increase no more than 1% if Congress extended it from its current duration (Helprin's life plus 70 years) to eternity.
Justice Breyer made a similar point in his dissent to Eldred v. Ashcroft, 537 U.S. 186 (2003).
Admittedly, this is not a complete answer to Helprin's argument. The purpose of property rights is not solely to protect a person's right to the economic value of an asset, i.e., property rights also serve dignitary and expressive functions, and property rights to artistic works arguably deserve special consideration under this heading. At the very least, however, the point about the time value of money deflates Helprin's high-flown rhetoric about confiscation and his comparison of copyright expiration to a tax. In truth, the economic effect of copyright expiration on the present-day value of a living author's property right is (except perhaps in the case of the tiny minority of works that remain extremely popular for centuries) tiny -- far, far less than the economic effect of, say, the income tax or the inheritance tax.
JonF-- Like I said earlier in my comment, the time limit is an essential part of copyright law. The Tolkien heirs are an excellent example of the unproductive aristocracy of legacy copyright holders I criticized. Preventing idiots like Helprin from extending the time frame of copyright protection is essential to our cultural heritage. It's telling that Disney, who has benefited more than anyone from traditional children's tales in the public domain, wants to prevent anyone else from enjoying the same privileges in the future.
While the author is alive, however, it's a different story. I think there's a substantial difference between Goethe and Shakespeare adapting traditional stories, and some hack attempting to cash in on a living author's work by publishing a phony sequel.
BTW, I agree with Anne E.
LaFollette:
There's a difference between PASSING OFF-- which can be a trademark violation-- and the derivative work right in copyright law. If someone misrepresents their work as JK Rowling's, that should be actionable, whether or not Rowling's work is in the public domain.
On the other hand, Ross' point is what about an author who clearly labels the content as NOT officially authorized? Remember "The Wind Done Gone", the "Gone With the Wind" book with the same characters but told from the slaves' point of view? How about all that gay "Star Trek" fan fiction?
There is a big difference between passing your work off and building a new story out of someone else's characters.
I think a legal distinction should be made between creations that the copyright holder continues to invest in -- such as the Star Wars characters, which (unfortunately) George Lucas keeps fiddling with, or Mickey Mouse, which Disney keeps putting more money into -- versus static creations, like, say, Holden Caulfield, which J.P. Salinger hasn't gone back to in over 50 years.
Mickey Mouse remains a valuable piece of intellectual property in large part because Disney has poured so much effort into keeping it fresh over the years. If you were to start publishing your own Mickey Mouse cartoons, your business wouldn't just be aided by Walt Disney's creativity in 1928, but also by all the expensive effort the Disney company has put into keeping Mickey popular ever since.
In contrast, if after Salinger's death, if you wanted to publish a sequel to The Catcher in the Rye, well, you would be benefiting mostly from Salinger's work around 1950, not since then.
Dilan -- "There is a big difference between passing your work off and building a new story out of someone else's characters."
True, and there's also a big difference between posting fan fiction online and publishing fan fiction for profit.
If you create a fictional world full of fictional characters, then you've essentially created a brand. Often, a great deal of time and money is invested in this brand. It's only reasonable to allow the creator some control over how their creation is presented in public and get a share of profits derived from their labor. That's the basic purpose of IP law, from patents to copyrights and trademarks. The law can't (and shouldn't) stop you from passing around Star Trek slash fiction, but it should probably stop you from selling it without the permission of the copyright holder. Or making your own movies with Star Trek characters. Or opening a Star Trek theme park. Etc. Etc.
There are all sorts of problems stemming from big businesses overzealously protecting their copyrights and abusing this privilege, but the basic idea seems sound to me. The real problem right now is that corporate copyright-holders and slacker grandchildren of famous authors are attempting to hang onto these privileges for themselves long after the death of the original creator.
Steve Sailer also makes a good point. I don't think copyrights should ever be made permanent, but there's a case to be made for a longer sunset period for a continuously developed character like Mickey Mouse as opposed to a one-off character like Holden Caulfield.
Shakespeare actually is a fine example both ways -- I think the awfulness of most "fanfiction" and unauthorized sequels gives some of us (myself included) an aesthetic inclination in favor of copyright. But this is nonsense, given the amount of good work, from "Rosencrantz and Guildenstern are Dead" to "ERASE/RECORD/PLAY" by John M. Ford, derived from Shakespeare. Milton ripped off the Bible's characters, and so forth.
People like Rowling and Lucas should get a share of any money made from the use of their characters or settings, but they should not be able to prevent others from using those characters or settings.
Lafollette:
No doubt Lucas has created a "brand". But you know what, we have protection for "brands"-- it's called trademark protection, it's perpetual, and, most importantly-- IT DOES NOT EXTEND TO NON-CONFUSING USES.
In other words, as long as Andy Warhol made clear that he wasn't endorsed by Campbell's Soup, he had every right to use their trademarks, their "brand", in his art.
So, again, if the issue is that Lucas created a "brand", then yes, he can stomp out works that purport to confuse consumers as to whether they are part of his brand. But owning a brand name (i.e., a trademark) does not give a person the right to control all uses of it-- only ones that convey endorsement or approval. So long as the users of characters do not falsely convey endorsement or approval, that theory doesn't get you where you want to go.
Intellectual property is nothing like real property. If you have a hat and I steal it, then you no longer have a hat; but if you have the idea of wearing a hat and I copy it, then we both have hats.
Society as a whole benefits by the diffusion of good ideas; copyright and patents are legal devices to incentivise the creation of good ideas. But they are fundamentally monopolies created by government, and -- like all monopolies -- are best when they are limited and temporary.
These discussions always leave me uncertain about how I'm being badly harmed by current copyright laws. What would be the benefit of easing copyright -- would we have more pastiches? Great ... Would fan fiction be sold at Barnes & Noble? Double great ... Would P. Diddy be able to rip off for free more real songs to put under in his inane raps? Triple great ...
This demand to be able to use other people's creations for free seems like an outgrowth of the paucity of creativity in the modern world. Look how there hasn't been an important new style of popular music to emerge since rap and punk in the late 1970s -- then compare that to the stylistic fecundity of the previous 80 years.
Younger people today seem so overwhelmed by the popular culture of the past that pastiche and reference (the more ironic the better) appear to be the dominant quasi-creative impulses of our age.
Make up your own characters and plots -- you'll be a lot more creative if you do.
The only place where I can see people are reasonably being "harmed" by existing copyright law is in the case of material that is under copyright but will probably never be made publicly available again by the copyright holder. YouTube, for example, is full of great but illegal stuff - interesting old Tonight Show and Late Night with David Letterman interviews and comedy bits; skits from Sesame Street and other beloved children's programming; fascinating rare footage of early greats of Broadway, jazz, country, and rock and roll; humorous commercials of decades past - that will almost certainly never be available on DVD but remains under copyright, and I think it is desirable for "fair use" to be expanded so that there can be a legal public outlet for this stuff.
Bad wording alert: I should have said where "people can reasonably consider themselves harmed by existing copyright law." The harm itself is not reasonable.
Steve:
I think you are way too rosy about older works and somewhat too critical of newer works.
First of all, lots of artistic expression in the early 20th century-- including great works of art-- involved borrowing. Disney borrowed from the Brothers Grimm. Joyce borrowed from mythology. Vaudevillians routinely stole each other's jokes and routines. And much of what was produced was derivative crap, though some of it is brilliant. For every Gone With the Wind, there were 200 movies in the 1930's (especially westerns and bad musicals) that you would never want to watch in a million years.
Similarly, in modern music, sure there are people who sample and add little creativity to the music (see Stefani, Gwen). There are also people like Danger Mouse (one-half of Gnarls Barkley), who mashed together the Beatles and the rapper Jay-Z to create something totally different and compelling.
But the thing is, 80 years from now, much of the derivative crap is not going to survive, while the good stuff will. And someone will look back and say how music was so much more creative in our day.
Does anybody over the age of 40 who has lived long enough to have some perspective really feel that popular music has been just as creative over the last 25 years as in the previous quarter of a century from, say, 1955 to, roughly, 1982?
When I heard the first rap Top 40 hit, Rapper's Delight, in 1979, I said to myself, "What a cute novelty record! I bet this style is around for 12 or maybe even 18 months." That's how fast styles had been changing.
Similarly, why does white guitar rock today sound almost unchanged in decades?
Dilan said:
So, again, if the issue is that Lucas created a "brand", then yes, he can stomp out works that purport to confuse consumers as to whether they are part of his brand. But owning a brand name (i.e., a trademark) does not give a person the right to control all uses of it-- only ones that convey endorsement or approval. So long as the users of characters do not falsely convey endorsement or approval, that theory doesn't get you where you want to go.
I don't think endorsement or approval is the only thing at stake in trademark and I think it actually does give people the right to control all uses of the trademarked item, if the trademark is distinctive enough. Hogwarts is pretty much JKR and her licensee's property, period. Trademarks protect people from making money off the trademarked thing, and casting "Anakin Skywalker" as your hero or taking "Hogwarts" as your setting is going to help you make money, whether or not the buyer thinks it's official.
When culture is so heavily commodified, more cultural entities are brands, and there's really not any way for someone to use a character or a setting directly from a very popular work without borrowing at least some of the marketing that went into creating that brand. That interferes even with the
What Would Shakespeare Do?" example:
Compare "The Tragedy of Anakin Skywalker" say, to a book like Mary Reilly, where the point is twisting the story so that it yields some insight that was left out of the original -- in that case, a gender perspective on the Jekyll and Hyde story. Do you really think if someone wrote this sort of book about Anakin Skywalker, that it would be prohibited on copyright grounds rather than trademark ones?
I'm not sure it would; I do agree you'd have problems writing that book but I think it's always been the trademark that would get in the way. Likewise, the example of "a novel set at Hogwarts" is going to run into the same kinds of problems: those stories wouldn't be stopped by authors protesting that they were plagiarized; they'd be stopped by corporations complaining that people were free-riding on their marketing budget. Literary copyright still protects the instantiation of a character or setting, not the character or setting itself. It's trademark that would stop me from writing a erotic novel starring Mickey Mouse, not copyright. Extending copyright is not preventing parody or influence and it's not preventing the literary use of artworks and their components; it's just one mechanism in an arsenal by which corporations are commodifying art to the point that the difference between trademark and copyright is increasingly slim.
That's why LaFollette Progressive is ultimately right: your attention here should be on fair use and preventing corporate art profiteers from hogging the intellectual legacy, not protecting the "rights" of people to make knockoffs of successful creative brands in the name of Shakespeare. If you want to make Shakespearean recycling of characters and settings more viable in 2007, you've got to tackle the very trademark protections that you're claiming protect the things that should be protected.
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If it weren't for the caveats at the beginning of this post, I would almost think that your argument was as bad as Helprin's.
The legitimate purpose of IP Law is to enable people who generate creative works to earn a profit from them for a limited time, before they pass into our cultural heritage for the benefit of all. It does not exist to create a landed aristocracy of unproductive art profiteers. The time limit is essential to the very nature of a copyright, and the swine who are attempting to extend the limits indefinitely deserve the full tar-and-feathers treatment.
I also think it's a good idea to soften the "fair use" requirements in certain ways... certainly collage and pastiche techniques such as "sampling" in music that use elements of previous work to generate an entirely different end result should not be considered copyright violations.
But your examples are terrible. Surely if there is any legitimate purpose to a copyright at all, it would be to prevent someone from writing a book using your characters and fictional setting, doing and saying things you may not approve of, and passing it off as a "sequel" without your consent. This would clearly fall under the category of legitimate uses of intellectual "property." As ridiculous as it is when Disney sics their lawyers on Little League teams for unauthorized image use, I wouldn't begrudge J.K. Rowling the right to sue the author of Harry Potter and the Magic Brownies
Posted by LaFollette Progressive | May 22, 2007 11:59 AM