Copyright and creative freedom

My new column discusses the J.D. Salinger lawsuit to stop the publication of a book called 60 Years Later: Coming Through the Rye that is kinda, sorta a sequel to Catcher in the Rye.

My argument: copyright law as it currently exists does the opposite of its original intent (as formulated in the U.S. Constitution, which allows Congress to legislate on copyright, and in the very first copyright statute enacted in 1790): to promote arts and letters and encourage learning, by giving authors an incentive to create new works by ensuring that they can fairly profit from their writings.  (In olden days, it wasn’t at all uncommon for unauthorized editions of books to be legally sold with no profits going to the writer.)  Today, copyright violation claims are commonly invoked to suppress new works — wheter it’s 60 Years Later, The Wind Done Gone (the “Gone With the Wind-from-a-slave’s-point-of-view” novel that was finally declared legal after much wrangling in the courts), a production of a James Joyce play, or fan-made Xena: Warrior Princess videos on YouTube.

My conclusion:

Stanford law professor Lawrence Lessig has argued that unless copyright law is reformed, it will end up stifling the creativity of a generation, particularly in the age of digital art. At the very least, the law should focus more on whether the copyright holder suffers actual economic loss, or be denied rightful gain, because of the infringement. As for restricting the use of one’s character or story by other artists of writers, it seems fair that, like the right to sue for libel, this right should be terminated by death. (Personally, I would support a term of 50 years, with a portion of revenues from any derivative work published thereafter going to the original author.)

Actually, I should have been clearer: 50 years or the death of the author, whichever comes first.

While ego-surfing Google Blogs tonight, I spotted my name on the LewRockwell.com blog, in reference to the column and my “50-year copyright term” proposal.  I just knew I — and Reason — were getting slammed, so I figured it was for disrespect for intellectual property rights unbecoming libertarians.  Well, I was wrong.

Says Steven Kinsella:

Copyright now lasts well over 100 years, due to continual copyright extension over the years–as Young notes, “When copyright legislation was first passed in the United States in 1790, the term of copyright lasted for 14 years, with the option of renewal for another 14.”

Does Ms. Young want to abolish copyright, this obvious threat to freedom of press? Or at least return to the 14 + 14 year system? Why, no. She has figured out the optimal way to handle this: “Personally, I would support a term of 50 years, with a portion of revenues from any derivative work published thereafter going to the original author.” Fifty years. Where she gets this number is anybody’s guess.

Well, why is 14 + 14 any less arbitrary than 50?  I think I made it pretty clear that 50 years is a figure that I, personally, find “fair.”  Why?  Maybe because 50 years is enough that the author has had a chance to write any sequel that he or she wants to write, and that the original (if it’s famous enough to inspire sequels or reworkings) has had time to establish itself in popular culture.  Actually, considering average life expectancy, 50 years today is probably close to what 28 years was in 1790.

I’m also rather amused by Mr. Kinsella’s assumption that copyright is a completely cut-and-dried issue from a libertarian point of view.  I’ve had other people tell me (in debates over fan fiction) that as a libertarian I should be more respectful of intellectual property rights because libertarians are pro-property.  Would it really be perfectly fine, from a libertarian point of view, if, after the huge success of the first Harry Potter book, Joe Smith or Mary Jones quickly popped out a sequel before J.K. Rowling could publish the second one?

Money aside, I do think that the author has a legitimate, if limited, right to control the (commercial) use other people make of her or his work.  In the case of non-commercial fan fiction, I don’t think the author should be legally able to stop it, but I do believe that writers (and website hosts) have a moral obligation to respect a writer’s wishes — e.g., not to post fan fiction based on his or her works, or not to post X-rated fan fiction.  I have a certain amount of sympathy for a writer who creates, say, the character of a devoted wife and mother only to see her transformed by someone else into a coke-sniffing adulteress.   (Or vice versa!)

I’m hesitant to say that the same moral claim pertains to a work of corporate ownership.  On a TV show, for instance, the creator of the character may be a writer who has no control over what happens to that character later, and the character may be butchered on the show itself far worse than he or she could ever be by a fanfic writer.

6 Comments

Filed under books, culture, freedom of the press, intellectual property

6 responses to “Copyright and creative freedom

  1. I’ve always disliked the idea of authors having ownership of characters. If I want to write a story about a boy wizard, just how different from J.K. Rowling’s Harry Potter does my character have to be so that I am not infringing? The answer is not obvious, and that kind of ambiguity tends to stifle creativity.

    And quite frankly, I don’t think it would really be a problem if Joe Smith and Mary Jones were allowed to publish their own Harry Potter sequels. If I enjoyed Rowling’s first book, I would want to read her sequel regardless of who else published their own sequels.

  2. Ms. Young writes:

    “My argument: copyright law as it currently exists does the opposite of its original intent (as formulated in the U.S. Constitution, which allows Congress to legislate on copyright, and in the very first copyright statute enacted in 1790): to promote arts and letters and encourage learning, by giving authors an incentive to create new works by ensuring that they can fairly profit from their writings.”

    Since copyright law is aggression, per Rothbard’s utility/welfare economics analysis, it causes overall harm, and relatively enriches copyright-creators at the expense of others. Any copyright law gives an incentive to create new works, at the expense of everyone else.

    “Well, why is 14 + 14 any less arbitrary than 50?”

    Because 28 is closer to zero than 50 is, and zero is the libertarian goal, since copyright is unjust.

    “I’m also rather amused by Mr. Kinsella’s assumption that copyright is a completely cut-and-dried issue from a libertarian point of view.”

    It’s not an assumption; it’s a conclusion of years of study of and reflection on this matter as a libertarian and IP attorney, and taking the time to set forth a careful case for it in writing.

    “I’ve had other people tell me (in debates over fan fiction) that as a libertarian I should be more respectful of intellectual property rights because libertarians are pro-property.”

    Libertarians are pro-property, but the issue is whether IP rights are legitimate property rights. In my experience, the vast majority of principled libertarians–and a growing number–do not think it is so. The only libertarians who believe in IP seem to be (a) utilitarians and other unprincipled types; and (b) principled types such as Galambos and Rand, but whose principles border on the insane. I take it Ms. Young is of type (a).

    “I have a certain amount of sympathy for a writer who creates, say, the character of a devoted wife and mother only to see her transformed by someone else into a coke-sniffing adulteress. (Or vice versa!)”

    This is not a libertarian concern; if Cracked magazine writes a parody of Lord of the Rings, or someone does a porn video with hobbits as characters, this does not literally “transform” some thing owned by Tolkien’s estate. It’s just another idea out there.

    Ms. Young seems to be unaware that there is an intense, significant–and growing–principled libertarian opposition to artificial, state-created “rights” like copyright and patent.

  3. (By the way, no disrespect is intended. This is a matter of substantive disagreement. But FYI Stephan is not the same as Steven.)

  4. Pingback: Reply to Cathy Young’s “Copyright and creative freedom”

  5. Pingback: Alas, a blog » Blog Archive » Should Joe and Mary be allowed to publish their Harry Potter rip-off?

  6. Dear Mr. Kinsella: thanks for responding. I will reply ASAP.

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