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Copyright: It’s not just for authors (Part 1 of 2...

This isn’t a formal poll, but rather a copyright pop quiz.   But don’t worry, it only has one question.   And no penalty for the wrong answer.   Plus it’s multiple choice.

Who said the following:

Most artists, if pressed, will admit that the true mother of invention in the arts is not necessity, but theft. And this is true even for our greatest artists.

a)       a torrent site owner
b)       an admitted downloader of pirated books
c)       an anti-trust attorney

Okay, the fact that I included the last answer kind of gives it away, but again, the point isn’t the answer, it’s the question.   And more specifically the statement made by Carl Sprigman, an anti-trust attorney who wrote a fascinating article, “The Mouse That Ate The Public Domain,” on the dangers of stricter copyright codes.   The rest of the statement I quoted above is as follows:

If we know little about the utility of longer copyright terms, there is abundant evidence regarding the vital importance to the progress of our culture of a robust stock of public domain works.

Most artists, if pressed, will admit that the true mother of invention in the arts is not necessity, but theft. And this is true even for our greatest artists. Shakespeare’s Romeo and Juliet (1591) was taken from Arthur Brooke’s poem Romeus and Juliet (1562), and most of Shakespeare’s historical plays would have infringed Holingshead’s Chronicles of England (1573). For the third movement of the overture to Theodora, Handel drew on a harpsichord piece by Gottlieb Muffat (1690-1770). . . .
Cultural giants borrow, and so do corporate giants. Ironically, many of Disney’s animated films are based on Nineteenth Century public domain works, including Snow White and the Seven Dwarfs, Cinderella, Pinocchio, The Hunchback of Notre Dame, Alice in Wonderland, and The Jungle Book (released exactly one year after Kipling’s copyrights expired).

Borrowing is ubiquitous, inevitable, and, most importantly, good. Contrary to the romantic notion that true genius inheres in creating something completely new, genius is often better described as opening up new meanings on well-trodden themes. Leonard Bernstein’s reworking in West Side Story of Romeo and Juliet is a good example.

Now I can practically hear the gnashing of teeth at the idea that I might be promoting theft of intellectual property, so let me back up a little bit.   To Section 1, Article 8 of the Constitution, which articulates specifically the purpose of Congressional control of copyright:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

Note that the purpose of limited temporal protection is not to protect the rights of authors and publishers, it’s to “promote the Progress of Science and useful Arts.”     We may disagree on a fully incorporative definition of   “Progress,” but certainly the perpetuation of creative endeavors would qualify under any circumstance.   And given the fact that virtually every discussion we have on piracy includes the impact on monetary profit to the writer and publisher, were there no protection for these folks, there would likely be no incentive to keep creating new works.   Of course not every artist is motivated by potential financial rewards, but that is not the same thing as having a disincentive to create, which the lack of some protections would likely constitute, at least for some artists.

However, like all rights enumerated in the Constitution, copyright is constructed as a balance between creators and the public, a balance that recognizes that the public’s interest in intellectual property is sometimes possessory, too.   That, for example, the person who writes greeting card blurbs may be inspired by an old Shakespearean sonnet and draw on the poem in writing his copy.   Or that the person making a homemade quilt for a new baby might be inspired by a design she saw in a museum, and with a few changes it fits her vision perfectly.   Copyright law has largely evolved with an eye on maintaining this balance, even in the midst of complaints it has over or under-reached and lobbying to expand or limit its application in new statutory and common law authority.   I’ll talk more about the state of that balance later, but for now I wanted to get that initial point on the table as it’s central to the rest of my post.

Rarely in these discussions, as I’ve read them, at least, do we proceed beyond the justifications for copyright protection and the enumeration of reasons to strengthen them for the benefit of authors (those darn torrent sites!).   But several questions hover at the end of those points, starting with Why is progress important? and   Why is it necessary to limit the protection of an artist’s rights to control their own intellectual property? The second question may seem easier to address than the first – without limits we would run out of material to use in art – but it takes on additional resonance when we consider the first more closely.

Why is progress important? A simpler, non-literary example here is that of generic drugs.   Drug companies spend millions upon millions of dollars on research and development for new drugs, which they hold a patent over for 20 years, during which time the manufacturer will hopefully recover its investment in R&D through its monopoly over that drug.   However, the high cost of these drugs often impacts their widespread use, especially among those who cannot afford good or any insurance, and thus the persistence of the drug manufacturer’s monopoly would limit the development of cheaper competitors.   And since one of our main economic and cultural premises is that competition leads to more and better products, limiting patent protections is a way to balance the labor, money, and creativity of the original manufacturer with the public’s right to affordable, effective drugs, and the potential of other manufacturers to produce better, cheaper drugs.

The importance of progress in the fine arts may be more amorphous, but the logic is basically the same:   the more material that circulates through the public domain, the more art that can be produced, and the more the public can benefit from the diversity and availability of various art forms.   Whether that benefit coalesces into the cultural good of a museum, entertainment through reading, different clothing designs, or even the perfect throw pillow for your living room redesign, it accrues to the public in a way that we view as good.   And the benefit extends to artists as members of the public sphere, too, who behold ever more material for inspiration of their own work.

So to return to the previous question about why intellectual property protections must be limited, it’s not simply for the benefit of new artists, but of society as a whole, because of the cultural good that emerges from the continual generation of artistic expressions.   Of course, the limitations also extend to type as well as time, and the reasons are related although not necessarily identical.   Fair Use, for example, is explicitly tied to the need for scholarship to make use of otherwise protected work.   But satire and parody are also protected under Fair Use, in part because of our fundamental free speech rights (which include the right to comment on the expression of others – think about how closely political criticism and parody are tied), and in part because of the way parody and satire can “transform” the nature of the parody so that it becomes an entirely new artistic expression.   And if it is a new expression, it cannot be a copy of the original, thus not a violation of copyright, even as it draws significantly upon a copyrighted work.

Which is part of the conundrum that Sprigman was addressing, namely that art is never produced in a vacuum, and more likely than not, it is produced within a specific context informed by other words of art.   Just go to famousplagiarists.com to see the massive list of accused thieves, including Mark Twain, the Rolling Stones, Shakespeare, Johnny Cash, Martin Luther King, Jr., Helen Keller, and NPR legal affairs correspondent Nina Totenberg.   Twain went so far as to say,

…..substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources, and daily used by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral calibre and his temperament, which is revealed in characteristics of phrasing. . . . It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a photograph, or a telephone, or any other Important thing– and the last man gets the credit and we forget the others. He added his little mite–that is all he did.

Whether every book constitutes a “little discoloration” of someone else’s work is another debate, but the main point Sprigman is making is that “borrowing” produces more and better work, which benefits artists and the public at large.

However, the artist’s impulse is often not to share, and copyright protects this impulse in limited ways.   It is a balance between the artist’s rights and the public’s that must be maintained, and the original grant over copyright to Congress recognizes this, because, as Thomas Jefferson argued (as quoted by Sprigman):

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

None of this addresses the actual piracy of books, the mass digital downloading of books in violation of the copyright code, something I will do in a follow-up article.   For now, I simply want to open up a discussion about how intellectual property rights do not merely accrue to artists (writers and publishers, for example), but also to the public (readers, for example), and reiterate that these rights must be carefully distributed and balanced not only to maintain our Constitutional mandate, but also to fulfill the ideal behind that mandate of a productive, politically stable, economically flourishing, culturally engaged society.

isn't sure if she's an average Romance reader, or even an average reader, but a reader she is, enjoying everything from literary fiction to philosophy to history to poetry. Historical Romance was her first love within the genre, but she's fickle and easily seduced by the promise of a good read. She approaches every book with the same hope: that she will be filled from the inside out with something awesome that she didnʼt know, didnʼt think about, or didnʼt feel until that moment. And she's always looking for the next mind-blowing read, so feel free to share any suggestions!

15 Comments

  1. Kathy Carmichael
    Mar 22, 2009 @ 08:11:00

    Janet: Loved your thought provoking post. I’m looking forward to your next installment :)

    Art (or books!) are often inspired by prior works and the balance between protecting the interests of the creator vs that of the public (expansion from those works) appears to be a fine line.

    Thanks for helping to make this subject more clear! — KC

  2. Monica Burns
    Mar 22, 2009 @ 08:13:03

    As a writer, my copyright is obviously important to me. But as you indicated copyright has to have limits. Writers borrow all the time. It’s the execution of an idea or theme that determines the quality of the read. It also determines the variety and choice available to readers. It benefits everyone because building a better mousetrap invariably offers up a choice to consumers, and I’m all for choices.

  3. Lynne Connolly
    Mar 22, 2009 @ 10:13:01

    In the past, originality wasn’t taken so literally. So you could adapt a previous text, and add something of your own to it, so that some stories built and developed in the hands of different authors at different times in history. Look at the life of Julius Caesar. He wrote his own version (I can hear the erstwhile Latin scholars groaning – it’s the clarity and precision of his prose that makes him a favorite amongst Latin teachers), Shakespeare took on Caesar, so did Robert Graves and each brought their own spin to it.

    When I write a story, I often describe it to others as “The Indiana Jones story” or “the James Bond as a vampire” story. It’s shorthand, but it doesn’t mean I’ve copied, or even taken anything from someone else. Just that I’m writing in the same arena. And it helps people who haven’t got time to listen to a whole description a shorthand way of getting there. In a conversation on this blog with Jane recently, I referred to the Cinderella stories I write. And “Cinderella” is one of Harlequin’s magic words. A book with “Cinderella” in the title tends to do well.

    Who was it said there were only seven original stories in the world? A bit too vague to be useful, but there’s a lot of truth in that.

  4. Chrissy
    Mar 22, 2009 @ 11:59:33

    There’s a really, really big difference between out and out copying and “inspired by.”

    Word for word copying or heavily lifting massive chunks of a work would fall under plagiarism, at least for me.

    Using another work, particularly one that is easily recognisable, wouldn’t. I’ll say, however, that when a contemporary author fails to acknowledge the source material in any way, I usually place them in my “hack” column.

    (Maybe I’m being unfair?)

    The interesting thing for me? The comparison of works to the source material was a huuuuuge part of my education in literature. I guess it sort of surprises me that the concept is new to anyone.

    Cool post!

  5. SonomaLass
    Mar 22, 2009 @ 12:59:23

    Robin: absolutely. The balance thing is key to the concept of coyright — the artist’s rights should be protected so that she or he can profit from the work, but the work eventually enters the public domain so that it can be freely disseminated. How sad would we all be if some great-to-the-nth-degree-grandchild of Shakespeare’s had control of his body of work?

    A large portion of my master’s thesis on Romeo and Juliet was analysis of the changes Shakespeare made to Brookes’ version (which was itself based on another, because it’s one of those stories that you can trace back into murky oral folk tradition). Of course there was no copyright in those days, so no protection for Brooke or for WS himself, but it’s clear that Shakespeare substantially changed it (and I would say improved upon it, based on the relative popularity and longevity of the two works). While I’m not sure West Side Story is an improvement in the same way, it is certainly an enhancement of the play, and it reaches audiences that the Elizabethan version would not. And that musical is just one of countless “derived/adapted” works that we might not have if copyright had a longer life and artists like Bernstein and Sondheim had to negotiate permission and rights payments with that nth-degree descendant.

    I think the generic drug analogy is particularly apt; thanks for making it! Great post.

  6. CourtneyLee
    Mar 22, 2009 @ 13:27:58

    I knit. Knitters are notorious for modifying patterns. My guess is that an original pattern is made to its original specifications less than 50% of the time. Now that we have a big place to consolidate our online community, Ravelry, the sharing of these modifications has skyrocketed. Instead of being considered a threat to pattern designers everywhere, this is seen as Really Cool.

    The perpetuation of creativity in our community is a big priority. What one designer accomplished with Technique A, someone did with Technique B, which then was shared among other knitters. Maybe B is easier or faster or, sometimes, more of a challenge so it appeals to the knitters who want a constant challenge–whatever the reason, it can sometimes lead to more sales of the pattern, which may not have happened without someone else thinking of a modification and sharing it. Frequently we see someone figuring out how to modify an adult-size pattern to a child-size or vice versa and making those directions free, but you need to buy the original pattern in order for the directions to make sense.

    So I guess the above is an example of how a less strict view of copyright benefits the holder of the copyrights even more than a strict one would. Improving on one another’s ideas spurns us to greater things (and some damn great knitting patterns LOL) than if we didn’t have established ideas to jump off from.

  7. MoJo
    Mar 22, 2009 @ 13:45:36

    The interesting thing for me? The comparison of works to the source material was a huuuuuge part of my education in literature. I guess it sort of surprises me that the concept is new to anyone.

    I based mine on Hamlet. My characters are all aware of the inevitable comparisons of their story, and the Hamlet character himself takes the online moniker “hamlet.” I’m not shy about taking the body of the story and putting a different pair of pants on it. Mostly Armani.

  8. A.R.Yngve
    Mar 22, 2009 @ 17:22:31

    But what happens when this process of inspiration-through-theft fails?

    I know how one can successfully borrow themes and concepts and tropes from older works, but I’ve also seen it fail.

    What goes wrong with inspiration when writers — mostly inexperienced ones — try to “write like the writers/works they like,” and only produce junk? Can their process of failure be broken down and analyzed?

  9. Hortense Powdermaker
    Mar 23, 2009 @ 08:53:57

    So I wrote this long blog post and then came over here to find Janet making the same point about how the greatest writer in western literature didn’t have very strong plot-fu.

    All art is derivative; like Mona Burns said, it's the execution of an theme that determines quality. So on the one hand, every trope has been with us for over four hundred years, which makes it hard to produce anything really new; on the other, freely shared ideas do lead to greater creativity.

    A.R. Yngve, I like to think “the process of failure” is another word for learning, especially if the “junk” gets critiqued. Have you seen the Primer for Kicking Ass? How to write like David Foster Wallace in ten easy lessons? (Shorter primer: find your own style.) I’m guessing you could deconstruct bad writing the same way.

    Anyway, Janet, thanks for illuminating these issues; it’s always interesting to hear where the law has led us and where it may take us. But I don’t think the current copyright law is stifling creativity, given the fair use exceptions for satire and parody and mockery.

    Even Disney’s getting pwned – “The Ring” was a recent South Park episode that included a vicious, foul-mouthed, greedy Mickey Mouse. (It’s kind of funny that you can’t see a clip on youtube because the Comedy Central complained about copyright infringement.)

  10. Courtney Milan
    Mar 23, 2009 @ 13:41:26

    I am out of the country or I would have responded by now but . . . I agree mostly.

    The only thing I will say re: promoting science and the arts is this.

    To the extent that one can read an implicit rule of Constitutional interpretation into recent precedent regarding those pesky prefatory clauses (e.g., for public purposes in the takings clause, or militia being necessary, in the second amendment, and to promote science & the useful arts in the copyright clause–and pardon the lack of exact quotes but it’s the crappy internet access and the computer that is not mine), it is that prefatory clauses are given approximately zero weight in the interpretation of the clause in question. Of course, no Justice has articulated this rule, and the majorities of the courts in question overlap at . . . uh, Kennedy, IIRC, and so this is a debatable rule. Still, it’s a possible interpretation.

    I’ve seen people assert that it MUST be the case that the Constitution exists to promote science and the useful arts, because it says so in the Constitution…. Sadly, while I think that SHOULD be a limiting factor, and one that SHOULD restrain Congress and the Courts, I think it would be foolhardy to count on it actually being considered one.

    Incidentally, I have also wondered why in modern commerce clause jurisprudence the copyright clause has any limitation whatsoever. The copyright clause is just an enumerated power. You can pass a law under one enumerated power that wouldn’t be allowed under another.

    Why can’t Congress pass an unlimited copyright under the commerce clause? It’s commerce, ain’t it? I feel like it shouldn’t be allowed . . . but why not? You’d have to posit that the copyright clause is not just an enumerated power, but one that excluded an enumeration from another enumerated power. And trademark both lasts forever, and can have some quasi-copyright-like effect (don’t get me started.)

    In any event, that’s all a side issue to your point–these are things I think are legally possible, but certainly undesirable.

    I wonder, if, when my book goes out into the wild, it would be useful for me to post a list of all the things I can recall that inspired me when I was writing it, so that people could see that books don’t come out of nowhere, and that stronger copyright would actually restrict creativity?

    Okay–am on crappy internet access in an internet cafe–and I’m paying by the hour–so must run.

  11. MCHalliday
    Mar 23, 2009 @ 14:25:38

    .“borrowing” produces more and better work, which benefits artists and the public at large…intellectual property rights do not merely accrue to artists (writers and publishers, for example), but also to the public (readers, for example)…”

    It is commonly accepted that ideas cannot be copyrighted, more particularily so in the film industry. I believe it holds true that actual representations of artistic expression are far more easily copyrighted in visual mediums.

    As a screenwiter, author, artist and photographer, I see the variances in copyright across mediums.

    As an author, I know acknowledgements are important for references in fact/history and in qualifying points for thesis. The end result of my book(s) is not without input from beta readers, editor and copy editor.

    As a photographer and artist, I do not need to list influences for my photographs, graphic art, murals or oil designs. I do not ‘use’ resources other than perhaps, past learning experiences to create an art piece. No one influences the final result.

    As a screenwriter, I use my books to adapt to film and although I may have learned from other screenwriters, the scenes are unique to my vision. They will be changed by a director, and therefore my vision is not longer solely mine, but it is a product of a team vision and so near same as a book.

    Copyright, not just for authors: No man is an island…unless he is a painter or photographer. And fair use, or borrowing, are requisite in some forms of artistic creation.

  12. Evecho
    Mar 23, 2009 @ 17:40:40

  13. Rowan McBride
    Mar 24, 2009 @ 01:11:55

    I think you're right-‘it's all about balance. I've seen fan fiction and art created based on my stories, and I think it's fan-freaking-tastic. Love it every time it happens (although I will say that I also live in constant fear that sooner or later a fan is going to write a story set in one of my worlds that is significantly better than anything I could write). As long as it's not for profit, I don't see anything wrong with it. I'm also fine with taking the basic concept of one of my works and running with it. More stories in my niche genre that I can read without having to write? Hell yeah.

    I have mixed feelings about file sharing. The main reason I don't like hardcore pirates is that they don't create anything new. They just take what you've done and distribute it. There doesn't seem to be any art in that. The second reason is more practical and almost as big as the first-‘I don't make money from giveaways, which severely hinders my ability to buy other authors' works.

    However, if an anime I want to see hasn't been released in the States I will download a fansub of that sucker in a heartbeat (currently preparing to pounce on Ai No Kusabi), and a good fansubber turns the act into an art of its own, often producing a better translation than a professional subber. If I like the anime I definitely buy the whole series when it's available (as well as any swag I can get my hands on), but I do have a tendency to jump the gun.

    I'm rambling now. I guess I'm just trying to say I'm not sure where the line should be. I know where my line is, but I also recognize that it's different for each artist. Ideally copyright legislation would protect the needs and wishes of people on both sides, but it's a difficult balance to strike.

  14. Mischa
    Mar 24, 2009 @ 18:20:20

    Very well written. I enjoyed reading your post but I have to dissagree a couple things.

    … were there no protection for these folks, there would likely be no incentive to keep creating new works.

    While that is a commonly held belief, there have been several studies, both here and abroad, that have shown the productive output of authors & inventors generally goes down when copywrites & patents are added or extended. I don’t remember the specific details, but one study looked at several european music composers alive when the copywrite laws were put in place in their respective countries and compared number of compositions written within a given time frame before and after the law was put in place.

    Secondly, as much as publishers would have it otherwise, I don’t think they can be counted as authors or inventors. :-) The longer they have exclusive access to existing works, the less they need to find new works to sell.

  15. Writing Roundup, May 15 « Jen’s Writing Journey
    May 15, 2009 @ 11:05:31

    […] Copyright and Consumer Digital Rights, Part 2 At Dear Author, we get an interesting survey of court cases that affect our ability as writers to own our words and our ability as citizens to access those words freely. If you missed part 1, read it here. […]

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