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“Gone With the Wind” and the Case for Shorter Copyright Terms
Over at Pacific Standard, Noah Berlatsky writes about the strange copyright case of Alice Randall’s 2001 “The Wind Done Gone,” a parody of “Gone with the Wind.” Berlatsky notes that “a district court at first forbade publication of ‘The Wind Done Gone,’ arguing the work was a sequel rather than a parody, and therefore didn’t warrant fair-use protection.”
Part of the court’s reasoning was that the GWTW copyright deserved deference because of its, as legal scholar John Tehranian explains in a recent article, “favored aesthetic status—its presumed import and cultural and economic value.”
Now Berlatsky concedes that aesthetic decisions are always going to be a part of copyright law give that the Constitution “specifically provides for copyright protection” in order to advance “the Progress of Science and useful Arts.” All the more reason, then, to shorten copyright terms:
Published in GeneralGone With the Wind was published in 1936. That means that it’s 78 years old. The first American copyright act of 1790 allowed for a copyright term of 14 years, which could be renewed for another 14-year term if the author was alive. If that original law was still in effect Gone With the Wind would have gone out of copyright almost 50 years ago. For that matter, Star Wars, Star Trek, Spider-Man, Faulkner’s oeuvre, and Stephen King’s early books would all be out of copyright. If you wanted to do a parody or sequel to any of those, no court would have to rule on the aesthetic value of anything. It wouldn’t matter if a court believed Stephen King’s work was canonical, or if they thought Faulkner’s racial views deserved to be undermined and questioned. When a work is out of copyright, it’s aesthetic value, or lack thereof, is irrelevant. Whether it’s great or whether it’s awful, the work is fair game for parodists, remixers, piraters of cheap editions, and anyone else.
Thirty years may seem like too short a time for copyright. But our current setup—95 years from the death of the author, or 120 years from the date of creation—seems like it tips over too far in the other direction. As long as a work is under copyright, what you can say about it, and what other work it can inspire, is going to be left up to the aesthetic preferences of judges, some of whom probably like Kevin Costner or even Eddie Vedder. Authors should be granted protection for a while to encourage creation, but it shouldn’t be for so long that important, canonical works remain inviolable generations after their creation. It’s long past time that people had the right to kick Gone With the Wind, The Great Gatsby, Catcher in the Rye, and Superman—not because they aren’t aesthetically valuable, but because they are.
I’m on the side of long copyrights. Copyright is property.
We’ve hashed this over before. But I will restate my position. There should be a dual standard of copyright, one for collaborative works and one for sole authorship. If you and you alone are the creator of a work you should be able to control that creation under your terms as long as you live.
Where corporations own a collaborative work the term should be shorter. BUT part of it must be tied to efforts to market the work. For example, one corporation should not be allowed to purchase a film from another and then let it collect dust in a vault.
Agreed. Where the optimum is I don’t know, exactly. Only that there is – in theory, at least – some sort of optimum. (See, for example, Ch 11 of “Law’s Order”.)
How would “the lifetime of the author or 50 years after publication, whichever is longer” do? Or “the lifetime of the author plus 30 years”? These are just random examples, but both are pretty generous, yet nonetheless shorter that what we’ve got now. (Because people are driven to work in large part to leave an inheritance for those who come after them, I can see why it might be optimal to have copyright expire some time after the author’s death.)
Copyright protection should extend beyond the death of the author. U.S. Grant’s family happily derived some benefit from the president after he penned his autobiography which I believe was his hope. Had it not sold well and had there been no copyright protection after his death, his immediate family may have become destitute. I think at least 50 years after the death of the author seems reasonable to me. Beyond that timeframe, extended and renewed copyrights do, it seems to me, frustrate the creation of other works that endeavor to use the original work as a springboard for new ideas. As for courts or judges defining what a parody is, that seems like fertile ground for a parody. Hmmm…
If 20 years of patent protection is considered sufficient time for a drug company to profit from a drug that cost $400 million to develop, then that same 20 years should be long enough in trademark protection for an author to profit from a book.
I don’t buy that. Patents stake out a more nebulous claim in “idea-space” than copyrights do, making their boundaries more costly to police and making destructive rent-seeking a bigger problem for patents than copyrights. Shortening the length of patent protection is one way to deter this rent-seeking. A copyright, on the other hand, defines an incredibly specific patch of idea-space, since it pertains to a particular expression only, and moreover protects something that’s much less to be exactly duplicated by accident than an idea for some process is.
In light of this, just assuming that what’s good enough for one is good enough for the other doesn’t necessarily make sense.
Besides the parody or other use issue, there is the issue that the copyright makes purchase of the work more expensive for the public, who would benefit from the copyright’s expiration. This benefit to the public, of greater and cheaper access to the work, must be balanced against the incentive to create the work in the first place.
Other things being equal, the copyright should therefore be long enough to create the incentive, but no longer. How long that is is an empirical question, but I would guess it’s a lot shorter than what the current statutes provide.
For God’s sake, couldn’t SOMEBODY have used this to stop George Lucas from destroying the original Star Wars Trilogy? Han shot first, dammit!
One issue that usually gets lost in this is the cost of enforcing a copyright. At some point — we can debate where — is it really worth the government’s time, energy, and resources to ensure that anyone found illegally using a copyright be punished.
For something relatively recent — anything less than 20 years old — I think it’s absolutely justified and necessary. Fifty years after publication, I’m less persuaded. Fifty years after the death of the author — and maybe a century after the work was originally published… I fail to see what society gains by protecting his grand-niece’s exclusive right to the work.
So who is the heir to Bram Stoker? Cause that Twilight lady owes him a whole lot of money…
If a man builds himself a chair, it doesn’t prevent his neighbor from building himself a chair. If a man owns a clock, he can’t sell the clock to another man without giving up possession of that clock. While not going so far as to deny that intellectual property exists, it’s dissimilar to other property in fundamental ways. Failing to acknowledge that is lazy thinking.
When did Grant publish? How long before he died? Since his intent was to provide for his family, couldn’t he have gotten around a hypothetical “on death” restriction by listing a child as co-author? Exactly how old were his kids at time of death; were they not able to make it on their own merits?
Wouldn’t it be simpler to say “50 years from first publication” because that gives a reasonable length of time without having to muck about with how long a guy will live? If the family is still dependent on memoir sales 50 years after the fact they have other problems.
It also takes work as an artist to determine whether or not something is fair game for use. The song “Minnie the Moocher” came out in 1930; it’ll be eleven years until it’s out of copyright, but only if Cab Calloway renewed the copyright before the first 28 years were up. The Betty Boop cartoon based on the song didn’t. But the song itself? Who knows?
The song Lili Marlene (published in 1938 and a big hit in WWII) is still under copyright in Germany, (who, incidentally, subscribe to the life + 70 standard), but it’s out of copyright in the U.S. The Andrews Sisters wrote a sequel using those characters in 1949.
I wrote a post about this last year. Can you tell?
This is a bigger problem for patents than for copyrights, incidentally, since a patent is on an entire idea rather than on one very particular expression of an idea.
If you and I have essentially the same idea for a novel and I publish first, you still can usually publish your novel without threat from me – what’s the likelihood that your finished novel will be so similar to mine in execution as to raise suspicion of copyright violation? If we have essentially the same patentable idea, though, and I patent mine first, you’re out of luck.
Costly patent searches, patent trolling, and patent wars are big deals. Costly copyright searches, copyright trolling, and copyright wars, not so much.
I only used U.S. Grant’s example as a hypothetical if copyright protection after death not been available and the consequences it would have had to his family heirs when in this case it was the author’s specific intent to write his memoirs not for his own ego but to generate revenue to care for his family because he was broke and had recently been diagnosed with throat cancer. Whether his heirs were or were not capable of making a living, I don’t think is the point. The point, I think is that someone who creates a work of literature or art should get some measure of protection on it and enjoy any revenue they can from it even as a way to provide for family members after they’re gone. I just don’t feel that needs to be more than 50 years.
Copyright protection was in force in Grant’s lifetime, so proceeds would have naturally gone to his estate/heirs anyway, so no need to specify an heir as a co-writer. Grant wasn’t a terribly attentive businessman or president and those he worked with and for him did take advantage of that to Grant’s great misfortune. Here’s a wikipedia article specifically on his autobiography. An excerpt:
“50 years from publication” also sounds within the realm of reasonable-ish to me. I would be rather surprised, though, if the optimal length of time for granting a copyright were less than or equal to the optimal length of time for granting a patent.
If a man builds himself a chair, he owns the chair. I have no right to take his chair.
Keeping it to first principles, it’s way more simple than we’re making it out to be. Do you have a right to property ownership? YES.
And copyright is to creative works, what deeds are to real property. Legally defined private ownership. And property ownership should never have an expiration date with an auto-confiscation process that passes ownership into the public domain.
If the works were meant to be public, it’s up to the current deed holder to make it so.
On that note, I’d have to disagree with EJH: as sad as it may be, if a studio wishes to shelve a project it rightfully owns, it can. But you know what? there’s plenty of oceanfront property with great views that the public would very much enjoy, but can’t, because it’s privately held.
Are we truly advocating that ownership of certain property should come with caveats?
This assertion is fundamental, where other arguments can be built upon. And I’m going to speak against it.
First, there’s nothing in the Constitution that defines copyright or patents as property. Just because the term “intellectual property” was coined, doesn’t make it so. Also, from a natural law perspective, it’s not so, because market forces towards intellectual works, especially copyright, act different. With physical property, if there’s a demand for it, and it becomes scarce for whatever reason, including theft, the price goes up.
But the “theft” of intellectual works protected by copyright or patents often results in a cheaper price and greater legal availability for those products even for the people who don’t “steal” it.
For example as a law abiding citizen, if I see someone in a store attempting to shoplift a physical item, it’s in my economic interest to somehow stop that person. Store theft results in higher prices, not only because the owner will have to make up for resulting loss, but there are also built-in costs for preventing those thefts in the first place.
Intellectual works are different. As a law abiding citizen, it’s in my economic interests to cheer on the patent and copyright lawbreakers (though I guess it makes me a bad law abiding citizen). I’ve seen example after example of music and movie publishers lowering their prices as well as making their product more available as one strategy to deter copyright infringement.
One reason (the primary reason?) that theft of physical property is wrong, is it deprives the owner of the use of that item. “Theft” of intellectual works doesn’t actually deprive anyone of anything. In the case of digital works, you can make unlimited copies . And the copyright holder doesn’t lose money if the person unlawfully copying the work would not have bought it in the first place.
In more primitive societies, property theft can result in significant harm, including death (e.g. steal a family’s only plow or work horse from a farm in the 1850’s). Intellectual “theft” simply does not have the same consequences to the holder, and that also affects the moral calculus.
To me, it’s a very simple principle: Your copyright is like your deed to your house.
First, I read Grant’s memoirs a couple of years ago, and it is quite good, though I thought it was interesting that he never addressed his reputation as a heavy drinker. Also, you mention Mark Twain who published Grant’s memoirs, and I thought I’d mention that Twain’s position on the issue of copyright is that it should be held in perpetuity by the holder’s heirs.
Grant wrote his memoirs primarily for his wife, who had no means of supporting herself after his death. With the possible exception of his youngest, Jesse who was 19, his children were adults and self-sufficient.
I’m in favor of a straight 15 year copyright with one renewal by the holder or his heirs. That would cover Grant’s situation. Why the renewal? Why not? Most intellectual works, the vast majority, aren’t very intellectual or worth the effort at renewal.
Not really. A house can keep you warm and provide you shelter from the elements, with the deed providing you legal protection from being deprived of that shelter. Your copyright or the underlying work of art it protects will not do either of those things. Less valuable to your own physical well being.
Most works of art are junk, and not very valuable at all. A house almost always is.
Different types of property already come with caveats. No one has an easement into my fridge.
The debate seems to focus primarily on the benefits that accrue to the author or the author’s descendants. The public benefits from cheaper access to the author’s work after the copyright is expired. This is a tremendous public good. Cheaper copies of books for students (books they don’t want anyway), cheaper Mickey mouse ears, cheaper Scooby-Doo lunchboxes are all things I can get behind.
And as was mentioned earlier, there is a cost to enforcing copyrights which the public bears. The smaller the pool of copyrighted material the easier that is.
And financially it is indisputably true that the present value future dollars in any cash flow after 30 years is close to zero. So a copyright longer than 30 years provides little or no additional incentive to produce a particular work. You might argue it takes time on some works and that is why I would be amenable to 50 years. But realize that the extra income the author reaps is money out of other folks pocket, it is not a free good (and in many cases the copyright is not even owned by the original author).
Lastly, I may be mistaken but there seems to be no shortage of production of copyrighted material, rather it has exploded in volume. This argues that the incentives to produce are more than sufficient.
Copyright enforcement is not as costly as patent enforcement though.
The world standard is a “good enough” compromise: Life of the author +70 years, or 70 years after the creation of the product for corporate-produced properties.
Copyrights are monopolies on production, not really property. They are a guarantee by the government that someone won’t just take a work and sell it for a lower price than the original artist can afford, or to take credit for it entirely, thus depriving them of income, for which they presumably took the time and effort to make the work.
But why? Why this special protection? It is to encourage the creation of the works in the first place. And then the question is, why do that? Is it the government’s job to ensure the funding of the creative juices of individuals? No, it was to benefit the public as a whole. The nation benefits (theoretically) from having these works, be they artistic or practical. Monopoly is the necessary evil that begets the good.
But what happens if a book, for example, goes out of print? How is the work doing any good, if it cannot be used? If the copyright was not there, anybody could create a new edition. But with copyright, you’re out of luck. Even if the rights holder cannot be found, the production of the work is still an enforced monopoly, even though absolutely no one is benefiting.
I’m reminded by this comment of what happened at the Woodstock Music Festival in 1969 (which I didn’t attend because I didn’t think anyone would go).
There was a fairly steep admission price, but so many people were pushing to get in by climbing the fence, that the promoters finally gave up and let everyone in. In this way, the free riders almost spoiled it for everyone. The promoters must have determined that they would try to make up the losses with movie and album sales.
The unlawful copier, in a digital age, can become a competitor of the original copyright owner, and make an infinite number of copies at (essentially) zero cost. Thus, violators, even if they would not have purchased the work at the owners’ price, do harm him.
In theory, at least. Many times piracy (or otherwise free provision) has been shown to actually increase revenues. Those times that “free” has actually reduced income, it was shown that the offered price was actually above the market value; thus, CD and DVD sales might have gone down, but when legit business went online with reduced (and a la carte: some say piracy is a service problem, not a pricing one) prices, the income soared.