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The Real Solution for Those Dr. Seuss Books: Shorten the Copyright Term
Pop quiz: Under U. S. copyright law, how long did copyrights originally last, in the Founding era?
Answer: 28 years. (14-year term, plus optional additional 14-year term, if the author chose to renew it.)
Do you know how long the copyright term is now?
Life of the author plus 70 years.
Is There a Doctor in the House?
For those just joining us, the short version: “Dr. Seuss Enterprises, the organization that owns the rights to the books, films, TV shows, stage productions, exhibitions, digital media, licensed merchandise, and other strategic partnerships, announced on March 2, 2021, that it will stop publishing and licensing six books. The publications include And to Think That I Saw It on Mulberry Street (1937), If I Ran the Zoo (1950), McElligot’s Pool (1947), On Beyond Zebra! (1955), Scrambled Eggs Super! (1953) and The Cat’s Quizzer (1976). According to the organization, the books ‘portray people in ways that are hurtful and wrong’ and are no longer being published due to racist and insensitive imagery.[104]” And now you’re caught up on what everyone’s talking about.
Sample actual line from one of the books in question:
“I’ll hunt in the mountains of Zomba-ma-Tant
With helpers who all wear their eyes at a slant . . .” (If I Ran the Zoo, page 14).
No one, conservative or liberal, would write that in a children’s book today, and I think it’s understandable if the Seuss estate doesn’t want to keep printing it; the only wonder is that they held out as long as they did.
I do think it’s very interesting and relevant (and exonerating—or not, according to taste) that later in the same book, Seuss also has this caricature of a (very white) generic Russian:
He’s literally wearing ammo belts as sashes. The accompanying text says (I am not making this up):
“And, speaking of birds, there’s the Russian Palooski,
Whose headski is redski and belly is blueski.
I’ll get one of them for my Zooski McGrewski.”
It seems to me that what Dr. Suess had that we don’t is most accurately described not as “racism” or anything about “race”, but a different culture from a different time, with a freewheeling greater willingness to caricature and exaggerate (it is a children’s book, after all) and joke around about anything that comes to hand—or, if you prefer, a sense that all those foreigners (both white and those “of color” alike) are way over there, “the other”, if you will, but not necessarily in a malicious way: rather, a sense that they have funny strange ways, and that they’re not part of his audience or his community, with a corresponding lack of sensitivity about mocking or slighting them. In other words, even at worst, he doesn’t have a weird complex against black people, or any other skin color, or in favor of “whiteness”; the woketivists are adding that.
But reasonable minds can differ, there’s no reason you have to agree with me on all that—and that’s the point. In a big, diverse (and free) country, there’s no reason 300 million people should have to come to the same conclusion or have the same opinion about almost anything, much less every particular point of literary criticism.
Meanwhile, there’s so much actual bullying these days (forcing people out of their jobs, etc.) against actual currently living people for holding dissenting or “incorrect” views on various things, it’s understandable if some conservatives have a little bit of a feeling of “First they came for the children’s books with occasional ‘dated cultural references,’ and I did nothing…and then they came for me.”
Who Died and Made You King of Anything?
The problem is that current copyright law puts this decision solely in the hands of the Seuss estate—if they won’t publish the books, no one can—and that’s not their fault. Sure, they could simply donate all of Dr. Seuss’s books into the public domain, but expecting them unilaterally to give up this ongoing source of what is now basically free money to them would be a little bit like expecting a conservative to give up government benefits he is legally entitled to: Some would argue that he has no moral standing to argue for repealing or reforming forced-redistribution programs (food stamps, say, or Medicare or Social Security) if in the meantime he receives benefits from them, but that’s an unreasonable standard. The taxes are non-optional; he’s going to be forced to pay for the programs regardless. Given that this is the system we’re all stuck in for now (thanks to voters other than him, most of whom are no longer even alive), it’s difficult to maintain that in the meantime he has an obligation to put himself at a disadvantage by unilaterally foregoing only the items on the positive side of the ledger.
But if it weren’t for this copyright, there’s no reason any number of independent presses couldn’t continue printing and selling millions of copies of these Dr. Seuss books, without any further involvement of the Seuss estate: as they already do with anything else in the public domain, from Shakespeare to Sherlock Holmes. Those who want the books can have them, and those (like the Seuss estate) who want no part in it don’t have to participate; everybody wins. There’s a tendency these days to think that everything has to be a big national question—and, therefore, a national fight, and a national decision for everyone, one way or the other—but again, in a big, diverse, free country, we don’t all have to agree on everything; on the contrary, leaving each other free to do most things differently is the only way such a country can work.
Free Speech vs. Copyright
It’s worth reminding ourselves what the purpose of copyright law is in the first place. The First Amendment, a great advance for free societies, protects freedom of speech and expression in general. The Constitution also contains this very limited exception: “The Congress shall have Power . . . 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 . . . .” In other words, American copyright law gives authors a government-protected monopoly—for a limited time—on copying and selling their works: on the theory that if we don’t, we’ll get fewer authors producing fewer works. (This differs from the European rationale for copyright law, which tends more toward the moral or philosophical, a sense that it’s only right to let artists, etc. have control over their creations.)
How We Got Here
Unfortunately, Congress has repeatedly extended the length of the copyright term, until the current life + 70—meaning, the author writes a book, for example, then lives for however long he lives, then dies, and then the copyright monopoly on that book lasts for another 70 years after his death. Congress has done this partly to make American law more consistent with European law, and partly because every time Mickey Mouse comes close to aging out and entering the public domain, Disney lobbies Congress to extend the length of everyone’s copyright terms another couple of decades. But if the purpose of copyright law is to encourage the creation of such works in the first place (which is explicitly the purpose of American copyright law, written right in the text of the Constitution), it is difficult to imagine that the possibility of benefits which accrue several generations after the author’s death is a major incentive motivating, say, a Dr. Seuss to produce more children’s books than he otherwise would. (Because works are governed by the copyright law in effect at the time they were created and published, most of the six books in question are instead subject to a 95-year copyright term under a previous statute, and will expire and enter the public domain around the year 2050. It comes to the same thing: That’s about 60 years after Seuss’s death.) Meanwhile, even if we were to adopt a European theory that an artist has a moral right to some control over his own creations, presumably any such legal right should not outlast the author’s lifetime, after which he has no further power to make (or revoke) such decisions.
So…
Congress should shorten the copyright term back to something reasonable, such as 30 years from the date of publication. The Seuss estate should feel free to stop selling books that they feel are insensitive (or that they’re afraid a woke mob, coming for them suddenly like a destroying fire, will feel are insensitive); meanwhile, parents who feel that it’s OK for their children to be exposed to occasional “dated cultural references” should feel free to keep buying the books—and printing and selling them. It is a free country, after all.
Culturally speaking, Dr. Seuss belongs to all of us. There’s no reason the law shouldn’t reflect that.
Published in Law
As an author I would not mind if copyright lasted for only 28 years. If you have not made your nut after nearly three decades, you are not going to. Better off making it available.
It is possible, someone might republish it and make a fortune from it. As an author, I say, so what? If they do make a fortune that means one of your books is selling like crazy – which generates a demand for your writing – which gives your writing career a new chance. The publishers that dropped you 29 years earlier, and were completely uninterested in the book proposals you have been sending them over the last 10 years will suddenly jump at the chance to sign you for a new book.
Doesn’t happen? It has with Baen on several occasions. They have printed retrospective books from authors whose careers died in the 1970s. Then those authors discover they can sell their writings again.
I appreciate the point you’re making, but I don’t think the problem actually has to do with copyrights.
Ebay was under no obligation to remove the used copies of Dr. Seuss from its platform, yet they did. That had nothing to do with
censorshipcopyright [just caught this typo — h.].Beyond that, many works will simply never be created in the first place, because authors and publishers will realize how vulnerable they are to pressure from the mob, and forego making the investment. One can look at the impact Islamist threats have had on writing critical of Islam for an extreme example, but the same chilling effect will be felt for purely market reasons, even if the threat of decapitation isn’t present.
There may be good reasons to change copyright law, but that alone won’t address the growing challenge to free speech — nor, I suspect, even put much of a dent in it.
I respectfully disagree. As someone who has dabbled in the creative realm I do not see how anyone’s interest is met in shorter copyright terms. I’m sorry, you don’t get to appropriate a creative work such as Mickey Mouse simply because he’s proven to be an enduring creation.
But I would support a “use it or lose it” provision. Copyright preserves the idea that only the creator(s) of a work should profit from the creative mind and Mickey deserves all the protection he gets because Disney aggressively markets him. Song of the South, on the other hand, is a case where copyright is abused and used to lock a “problematic” work away from the public. Either market it or it lapses into the public domain.
I also bristle at the idea that the public at large often pays for archival storage of commercial works without access to them. In the 1980’s NBC donated 150,000 16″ radio transcription discs to the Library of Congress. You get to pay for the preservation and cataloging of these works but you don’t get to listen to them. Is cultural history really “preserved” if future generations of minds are never exposed to it?
CGP Grey did a video on copyright laws many years ago, which is why I could answer your second question. I’d forgotten the answer to the first question. It’s another example of companies pushing for laws to help maintain their market share and stifle competition after they’ve risen to the top. Disney got a big part of its start by making movies from stories in the public domain. Now they want to prevent others from doing the same.
This whole post extends, in my mind, far beyond Dr. Seuss. Suppose the Estates of C.S. Lewis, Tolkien, Thomas Sowell, or whoever. might someday find that the writings are too controversial or socially inappropriate to be released to the general public, I like the idea of “use it or lose it”, but I think there is a potential problem in what constitutes use. Disney has had a roller coaster ride based upon “Song of the South”, which they could argue constitutes use and allows them to keep the movie locked up. (Courts are fickle things.) On the other hand, who wants to see a corrupted pornographic Mickey Mouse clone splattered all over the media if Disney were to lose total control? On the other hand, the way things are these days it would not be surprising to see Disney create their own copyrighted corruption of their classic characters. (See Beauty and the Beast, Lefou)
As far as books are concerned, copyright can get complicated. The copyright notice may say “copyright 1960 Author J. Author,” but the author may have assigned all of those rights to his or her publisher. I don’t know what publishers are doing these days in their contracts, but as recently as a couple of decades ago, the reasons their author contracts stipulated that the rights belonged to the publisher were (a) in the event of the author’s death, publication could continue as scheduled and (b) publishers had the administrative infrastructure to enable them to handle permissions requests, reprint rights, and foreign translations and sales. So I’m not sure if changing the length of the protection term would really affect much for most published works in terms of the public’s being able to use the material at its whim.
If this isn’t made the Post of the Month, somebody at Ricochet is falling down on the job.
Good comments, too.
I looked at the supposedly racist cartoons by Dr. Seuss. You can view them here.
I don’t see anything objectionable. Sure, he’s caricaturing blacks and Arabs in these ads. Just like he caricatures everybody, I think. They’re cartoons, for crying out loud.
I must have heard a podcast about this in the past day or two, and I was thinking this morning, while driving in to work, about the complaints about “stereotypes” or some such in various Disney stories. What’s wrong with these? I mean, didn’t Disney horribly caricature the English settlers in Pocahontas, as a bunch of violent, greedy, earth-destroying, gold-mad monsters?
Yeah. It’s a cartoon. Cartoons have cartoonish bad guys. But apparently, in modern Wokeism, you can’t portray any person or group negatively — except white males.
It’s not just cartoons. For some reason, it’s unacceptable to have a comedy or parody set in Japan (like The Mikado) — but it’s perfectly fine to caricature King George III in Hamilton.
I prefer a world in which everyone can take a joke, and we can have parodies of all sorts of groups.
That is the question, though. Under current law you don’t get to. Under the OP’s proposed reforms you might get to under certain time-constrained circumstances.
I had no idea that was done. Thx.
I should have stated that a little differently. Under current law you don’t get to appropriate a creative work, “just because,” It has to be out of copyright before you do that. Under the OP’s proposed reforms you would get to appropriate a creative work, not “just because,” but under modified time constraints.
I would go one better. If a work is “cancelled”, then the copyright should be immediately and irrevocably canceled. This places it in the public domain and it should be restricted from copyrighting any derivative work. Asa things now stand, a copyright holder has virtually absolute control over the copyrighted work. It would seem that if a copyright is granted, there should be an obligation to publish. It is quite certain that Disney, the Seuss foundation and all the rest are only pandering to the mob and at such time as they think the coast is clear, they will be hawking their wares again. They should be forced to make choice; now or never, make it available orforever surrender the right to control it.
I disagreed at first, as I thought by “cancelled,” you meant if the mob cancelled a book. But you were talking about canceling distribution, and in that context, I agree.
What it most likely shows is that the people who complain about these caricatures actually think about the subjects of the caricatures in the way the caricatures depict. So their subconscious racism is awakened and they then lash out at those who caused it to happen.
Berne Convention FTW!
There’s no good reason that any country needs copyright terms that are more stringent than the Berne Convention.
Not sure why a copyright over the property of a book should be considered differently than the property rights of a piece of land.
Let’s consider someone who bought some property on the outskirts of any American metro area 70 years ago, and first put up a humble house. Then 25 years later, as the two lane road became a major heavily trafficked area, the house was demolished and an office complex was put in. Now a 7 story business center sits on that site.
Why should the family that inherited that piece of property from great grandpa be treated differently than the work of an author who might have spent years writing a book? They retain the property rights granted to them by a man who either through wisdom or dumb luck turned a 800 buck piece of land into a 3.5 million dollar enterprise.
An author’s family deserves the same legal consideration.
There have been cases where a book is published years ahead of its time. It then might not be discovered by the public for 30 years. It might be another 10 years before it is made into a movie.
I have to disagree. A company may have a reason to withdraw something temporarily. They may be rotating what is available for marketing reasons. Disney did this with many of its movies for years, re-releasing Snow White every 12 years or so, to capture a new audience. Or a publisher may not have the warehouse space for all of the books in its category, and may decided to hold back publication for a new edition until demand is high enough for a new print run.
At the extreme it means magazines enter the public domain immediately because the publisher has no intention of reprinting it. That is fine for the publisher who has made his money, but it is not for the authors who contributed stories or articles. Suddenly those pieces are all in the public domain and they cannot resell them. (Many authors sell a story, collect a set of stories into a book, and then sell anthology rights later on.
I understand the intention, but this will punish content creators while exclusively rewarding distributors.
I will never agree with that. I think copyright should extend perpetually and should fail only upon the fall of a civilization, just like land or boats or any other kind of property.
When you buy a house, should that ownership end after 28 years and then the house becomes a commons? I’m guessing no one would agree to that. What about a bicycle?
My dad gave me a keep sake that belonged to his father. Why should that belong to everyone and not me?
And yet, a literary work somehow should have a limit? I’m with the Mouse on this one. The works of Herodotus and Thucydides no longer belong to someone because that civilization collapsed and no one kept track of the ownership of that work. But Walt Disney’s work very clearly belongs to someone and there is no justifiable reason why that can’t continue to be owned.
Dr. Seuss left his property to his heirs. They got his house and his books, and his heirs should own both for as long as they don’t sell them.
Yes, it should have a limit. Next question?
Wait. If that’s true, how has Disney been able to extend the copyright on Mickey Mouse, et al?
<raises hand> Just for the LOLs.
Because the Constitution says so.
You can resell something in the public domain. It’s not forbidden.
Well, I’ve read the Constitution and it says . . . .
Note that it says there should be a limit. I agree. The limit should be for the duration of our civilization. There is nothing in the Constitution to say otherwise, it is up to the process of passing laws normally.
What the Constitution says is that there must be some limit, so the government cannot tell an author that he can never have a right to his works. They could make that limit 5 minutes and it would be constitutional. Likewise they can make the limit a thousand years and it will be constitutional. Invoking the Constitution as an argument is quite limited.
Yes, but why would anyone pay? If a publisher can get a story of mine for free (because it is in the public domain) they are not going to pay me. They get paid for the finished product, not the created media.
I certainly don’t pay for images in the public domain which I use in my books, even when the creator is still alive. That is the definition of public domain.
People do not seem to understand the purpose of copyrights and patents. It represents a temporary monopoly on the use of intellectual property. This is done are to encourage widespread dissemination of ideas and concepts.
Without any copyright or patent protections no one has a real incentive to create anything. If those rights are held in perpetuity, dissemination of ideas gets frozen. If the descendants of the Wrights could assert ownership of the Wright patents on flying machines in perpetuity it would retard development of future aircraft, especially if their descendants chose to restrict use of them for arbitrary reasons, refusing any royalty.
The trick has always been determining the length of the monopoly. You want to maximize production of ideas while minimizing obstruction of their flow. Also, public domain serves to clear rights. For example, reprinting a book published between 1924 and 1976 is a nightmare because often it is impossible to find the copyright holder. If you cannot do that, the book doesn’t get published, which is “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.”
So the idea of copyright in perpetuity is a dog in the manger concept. (I could not have used that analogy if copyright in perpetuity existed.)
As I said, sometimes expiration of copyright leads to rediscovery of forgotten authors, and restarts their careers.
I wouldn’t mind either. How about after 28 years, you get a partial (even tiny) royalty on each previously copyrighted item resold until you die?
To heck with The Mouse . . .
Update: OTOH, a publisher or movie studio could buy the right to publish, then hold the book or script for 28 years for political reasons . . .
That’s a great idea.
Probably would not work because the government does not retain contact information on copyright holders. There are truly ferocious penalties for copyright infringement, so if something is under copyright (or even if might be) someone thinking of republishing a work will not unless they can contact the copyright holder. A forgotten work goes into limbo, and remains there.
I got news for you – there’s already Mickey Mouse porn out there.
But Song of the South is a beautiful movie. The final scene where Uncle Remus, the platation owner’s son, the slave boy, and the little white trash girl skip along singing Zip-A-Dee-Doo-Da is priceless . . .