Copyright (Day 292/365)

The other day I got an invitation to submit something to the “Outside the Bachs” competition, administered by composer Mark Burrows for the Choral Union of the First United Methodist Church in Forth Worth. This is not as big a deal as it sounds. As a member of the American Composers Forum, I often get notices of competitions like this. Last year, I submitted something (I’ve already forgotten what), so now I’m on their mailing list.

Still, if I can, I’ll come up with something. It has to be SATB, piano or organ accompaniment, sacred text, not necessarily Christian. My problem is that I have to find a text.

In the middle of the night last night, as I lay awake for one reason or another, I thought about this:

A Elbereth Gilthoniel,
silivren penna míriel
o menel aglar elenath!
Na-chaered palan-díriel
o galadhremmin ennorath,
Fanuilos, le linnathon
nef aear, sí nef aearon!

O Elbereth, Star-kindler!
You of course recognize it as the hymn sung to Varda, Queen of the Valar, by the Elves of Middle-Earth. Certainly a sacred text, if not quite what Mark Burrows had in mind. It would be a lovely challenge to set to music.

I will pause for a moment to see if you can think of why this text might be problematic.

Yes, of course, you see, it took me a few minutes of thought to remember that this is not in fact an ancient text, but a copyrighted work of fiction, not even 100 years old, written by John Ronald Reuel Tolkien. I cannot set it to music without getting permission from the copyright holder, or in this case, his literary executor, Christopher Tolkien.

Which brings me to my actual topic today: copyright and the commons. Recently, in the august pages of the New York Times, novelist and right-wing arse Mark Helprin wrote a guest column in which he wondered exactly why intellectual property is treated so very differently from real property. His main point, as far as I could tell, the man does not write well, was that if you build a business or a building, the government does not step in after you’re dead and dismantle it, depriving your heirs of the income of your property. So why, oh why, will his heirs not receive the royalties from his books in perpetuity?

He presents no evidence as to why this is a good idea for society, nor does he present any counterclaims to his whining. This is remarkable, because he actually filled half the editorial page with this column, and yet the actual content of his argument is no more than what I have just summarized.

I don’t think he was lazy. I think he was dishonest. Any real argument as to the validity or even desirability of his proposal would have to include a discussion of the concept of the “commons,” and almost anyone who bothered to read the column would see straight through his specious logic.

Here’s the deal: many years ago, there was no copyright. People created, and other people borrowed what they created. Bach’s Concerto for Four Harpsichords? A straight transcription of Vivaldi’s Concerto for Four Violins. Shakespeare? Don’t get me started on his outright theft of other people’s stuff.

The upside of this was that everyone created constantly. They had to if they wanted to keep making a living. Shakespeare didn’t publish his plays during his lifetime because if he did, his company would lose their exclusive production rights. And that was the downside. You couldn’t be assured of the income of your works because anyone else could print them and sell them without paying you a farthing.

So eventually, a couple hundred years ago, the concept of copyright emerged. Like the concept of the corporation, it was conceived as a temporary stay against the claims of the commons, i.e., what one of us creates belongs to all of us, but for a little while, we’ll allow you exclusive right to any income produced by your work. After that limited time, it goes into the pot with everything else to enrich all our lives. Keep creating!

At first, copyright was very limited, like fourteen years, much like today’s patents for new medicines (which is seven years, after which we get to pay lower prices for generic versions). As time went on, laws extended copyright for longer and longer until now it’s the life of the author plus 70 years, and for a corporation, 95 years. This means that I won’t be able to use A Elbereth Gilthoniel until 2043, when it will enter the public domain 70 years after Tolkien’s death.

It also means that Walt Disney Co. gets to keep Steamboat Willie out of the public domain. The 1998 law that extended copyright is known as the “Mickey Mouse Protection Act” in some cynical quarters, and that’s what this is all about: protecting income for corporations. Disney is ferocious in guarding its copyrights and trademarks, and the idea that the first Mickey Mouse cartoon was about to be free drove them all insane.

All Mark Helprin is doing, in his conservative little way, is hopping on Disney’s juggernaut. Screw the common good; just give him his share. Forever. This, from the author of:


Was there any trace of irony in Helprin’s column? Nope, just very very sincere self-interest.


6 thoughts on “Copyright (Day 292/365)

  1. A couple of thoughts:
    1. The 7 year thing on medications seems to get lots of “exceptions”, as companies can apply for an extension of an additional 7 years. This may be the most interesting of the examples to ponder, due to the dueling interests at hand. On one side, you’ve got grandma (and me, for that matter) who can’t wait for their Nexium (copyright 200-whatever) or somesuch to come off of protection so it can be reduced from $150/month to something affordable. On the other hand, you’ve got a corporation that a) has a reasonable expectation to recoup their investment in developing their drug and b) has had to spend what is probably millions to get through what is likely a labyrinth of government regulations just to get to market. I’m no apologist for the megapharms. I don’t think many of them are struggling to pay the rent. I anxiously await pre-sales for tickets to Moore’s Sicko. I still think this presents a deliciously complex example of the problem you present.
    2. My chosen demesne, software, is providing a truly interesting experiment in this regard. The open source community has provided some truly excellent solutions. Many of these have either served as the core of major commercial releases, or were used in the production thereof. In this world, the kind of open collaborative environment has lead to success yet leaves commercial enterprises to protect their code using available laws. This may be one of the better examples of how law can provide either option for the creator. It also begs the question of whether the creator should have the right to determine for themselves the intrinsic purpose of their creation: for the generation of personal/corporate profit or shared altruistic/artistic benefit. I like to write and draw but don’t rely on either for providing for myself and my family. However, I rely on the software I and my team develop for this purpose. If my company were not allowed to protect that creation from duplication (and thus the competitive advantage it creates), they may not be as willing to invest quite so much in that strategy.

    The burning question for me is this: which of your creative works will you protect or not protect and why or why not?

  2. The notion of the “commons” has lost its power to guide the human conscience because it is no longer rooted in a place, in a concrete actuality. As purely an abstraction, untethered to a lived reality, it does not seem to command great allegiance, not like some other clusters of phonemes: such as “property” and “scarcity” and “individual autonomy.” Those ideas seem to continue to inspire a religious devotion that wholly ignores any of the demands of actual 21st century social and biological existence, while the idea of “commons” is dismissed as so much nostalgic escapist indulgence.

    Because we are no longer a part of a social reality in which “commons” has a lived meaning as a practical instance of our triumphant, evolving human rationality, we are more at the mercy of those who, in the vacuum, have fallen back on baser, preditory, ways of being and who brandish their interpretations of reality like a carving knife, those that argue: “the struggle for survival has always been thus…”

    The anthropologist can look back to moments in assorted social arrangements when an act of creation was considered a sacrament, not a contribution to, or a drain on, the coffers. In this day and age, the artist, we are told, is just another poor wretch planting his stake in the ground and growling at all who get too close. The artist is just trying to find a way to create a meager plot of sustenance like everyone else. All creative energy serves the “struggle for survival.” To be creative is to find a way to win another day of life and not be eaten.

    Conclusion: every human being is a struggling artist obsessed with property rights. This is how things stand now.

  3. I will protect all my works, of course. That’s the point of copyright on the front end.

    The point on the back end is that our culture grows through accretion, through the expansion of material in the public domain. If the corporations and greedy artists like Helprin have their way, that process will stop. Everything will belong to somebody, and none of us will have access to anything we do not pay for.

    And not to sound like a conspiracy theory nut, but do you think that Disney will stop with extending their copyright in Sleeping Beauty in perpetuity? Honey, please. After they achieve that, they’ll then try to suck in the original story and claim copyright on that in perpetuity. Their reasoning will probably include something like, if someone else were to make a cartoon based on the original story, it might hurt their God-given right to make a buck with their cartoon.

    For further thoughts, see here and (for a really fun, wicked definition) here.

  4. Let me start by pointing out that this quote:
    “…the artist, we are told, is just another poor wretch planting his stake in the ground and growling at all who get too close” [note, restating the quote here should be considered ‘fair use’] is a particularly nice turn of phrase. Marc, you should copyright it, no?

    As to this:
    “Conclusion: every human being is a struggling artist obsessed with property rights. This is how things stand now.”
    [again, fair use please]
    I don’t at all agree. I think that there is a significant amount of creation that takes place without concern for copyright or profit. However, much of it is “mediocre”. I know I’m bringing a subjective quality argument into the subject of “art”, but give me a moment. I feel no compulsion to protect in any way my photography or drawings, both of which I take some small measure of pride. At the same time, I’m not staying up late waiting for calls from the High to follow up the Leibovitz exhibit with the McInturff exhibit.

    On that same note, I suspect I’m safe to say that Ms. Leibovitz maintains legal rights to her work. I’m also safe to say that I hope I can “create” something some day that another may look upon and call “derivative” of her work. If this occurs, I will also not be staying up late waiting for calls from her lawyers.

  5. First, some clarification: every work is protected by copyright. You may register your copyright with the Library of Congress, but everything you create, if it is a new work, is protected by copyright. Copyright is inherent.

    I have registered my copyright in my translation of Mozart’s Marriage of Figaro©, and I will register A Visit to William Blake’s Inn as soon as I figure out a contract for Nancy to sign which gives me written permission to create a derivative work from hers. (Actually, I’m fairly sure her email and the subsequent trail of correspondence would stand up in court, but we need to be on paper.)

    In turn, Lacuna will need something in writing from me in order to create a derivative stage work from my song cycle.

    If, Kevin, you were to create a photograph that looked like one of Ms. Leibovitz’s, but was clearly not one of hers, it would not be a derivative work. If you wanted actually to use one of her photographs in your work, that would be a derivative work.

    More later–I have to go to awards ceremonies.

  6. I do derive great satisfaction from re-reading my cyber-trails, and I am egotistical enough to think I bestow them as gifts to any and all who may also derive satisfaction from reading them, mediocre as they truly may be. As sacramental and sacrificial expenditures, my efforts aim for no further reward.

    Of course, I am not immune to fears of serving as someone’s food. I dream of a rich benevolent personage stumbling across one of my messages and thinking, “Here’s a lily of the field worth putting in a pot and watering.” I would be rescued from the pitiless cycle of predation and underwritten just long enough to get the kids through school and myself out of here. Sure, that would be nice.

    The current set of algorithms equate smoked sausages with cancer treatments. It’s your product, your property, and you maximize the profit. A system with subtlety enough to differentiate among valuable and superior products (no mediocre stuff, please) and apportion them differently based on various kinds of value would be welcome.

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