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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
Do they even have the technology to play them now, perhaps to copy them to mp3 or something? It seems definite they have a lot of old census records that are now useless because the equipment to read them no longer exists.
That’s a problem, though. Any proposal has to figure out how to get past the mouse and his friends, who can be rather formidable.
Well, it’s not Mickey, but there’s always Fritz The Cat…
And therein lies the rationale for the excellent “fair use” laws publishers abide by.
The fundamental difference between physical property and intellectual property is that the later can be easily and cheaply copied. If I take your bicycle, you no longer have a bicycle. If I move into your house, we have to share the house. It’s a zero-sum game.
If you have an mp3 of a song, and give me a copy, I am richer, but you are no poorer. You still have your copy.
Great point, great question; honestly, I didn’t think about the inconsistency in what I was saying.
In reading further in attempting to answer the question, I gather that what I stated was a little bit of an oversimplification: that it is indeed true that different works are governed by different copyright legal regimes depending on when they were originally created or published (as shown in that table from Cornell that I linked to), but it’s also true that Congress has sometimes extended the length of the term of existing copyrights and not just new copyrights going forward:
“The 1998 Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever end is earlier.[3] Copyright protection for works published before January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.
“This law, also known as the Sonny Bono Copyright Term Extension Act, Sonny Bono Act, or (derisively) the Mickey Mouse Protection Act,[4] effectively ‘froze’ the advancement date of the public domain in the United States for works covered by the older fixed term copyright rules.”
I guess because otherwise it’s limiting people’s freedom of speech or expression. I agree with having the limitation, the temporary monopoly of copyright as envisioned in the Constitution, but it seems to me that it should be very much the exception, rather than the rule.
Often my “freedom of speech” means the freedom to share my own original thoughts and writings, but not always. In Fahrenheit 451, Bradbury envisions a dystopian future in which there are very few copies of the Bible (or of Shakespeare or any other cultural treasure) in circulation; it is extremely difficult to get ahold of one or share one. I’m definitely not saying that Dr. Seuss is on the same level of value to civilization as the Bible, or even Shakespeare, nor am I saying that the Seuss estate’s decision ushers us into a dystopian nightmare, but I guess I am suggesting that the same First Amendment (both our constitutional law of freedom of speech, and our corresponding culture of freedom of speech) that normally tells the government that it can’t tell us what books we can read and copy and circulate—that keeps the government from keeping us from reading the Federalist papers or Sowell’s Conflict of Visions or the Bible or whatever else—is also relevant here.
Or another way to look at it would be to say, Because the land is real, while a copyright is an artificial creation of the government. The land or the bicycle or any property you own in a more traditional sense is something tangible that exists in the real world; the exclusive right to copy a book is something abstract that exists only on paper, or in people’s minds. It exists only as long as the law or culture maintains its existence, against the prevailing wind of the reality that it does not exist.
The property right to your land or your bicycle is the legal right to have the government protect you if someone tries to come in and interfere with your use of your land or your bicycle; by contrast, the artificial “property” right or copyright in a work you’ve created is the legal right to have the government go and interfere with someone else’s use of his music player or his printing press or his computer etc.
Disagreement does not imply misunderstanding.
As I recall, one of the greatest inventions of the 20th century was for controlled powered flight. How long did it take to win that patent? How many people got around it? Patent law is a joke. In fact, if I recall, the government has dibs on aviation and nuclear inventions.
Why can’t the rest of us seize your house? You’ve lived in it long enough, says the crowd. How about a vacation home? You’re not even living in it most of the year. The obvious reason is, you bought it; you paid for it. It’s yours.
Paramount Pictures paid for, and owns, Popeye the Sailor, Airplane! and The Godfather. How is that “abstract?” They own these properties whether they choose to distribute them or not. That’s their business, literally and figuratively.
Could there be a private/public organization like ASCAP, for authors? It would keep track of their work, copyrights, etc. and dole out royalties when needed, and collect from publishers and users.
I would think that authors would be free to collaborate on such a thing. (I’m not sure I’d want them to, but I suppose they could.)
Agreed.
I think there is also a practical difference between a patentable property and a copyright. A patent is for a procedure or a device that can be made by others, but we want to encourage the first person to figure it out. If I make a newer, better mousetrap then this benefits all mankind and I should be rewarded for being the smart or energetic one to figure it out.
We know that an infinite number of monkeys with an infinite number of typewriters and infinite time, that one of them will be able to replicate Hamlet. Until we get to that point, Shakespeare’s heirs should own it, if we knew who they are.
We know who Dr. Suess was, we know his heirs, and there is no reason we should pretend that we have the right to demand that work “belongs to all of us.” Honestly, that sounds like the language of Mao, or Marx to say that what you build and create is not yours and belongs to a collective.
But I also own Airplane! and The Godfather. I paid for and own copies of both on DVD.
Paramount Pictures owns something much more abstract, namely the right to make more copies of these works. That’s less like owning a house, and more like claiming that if anyone anywhere in the world wants to build a new house they need your permission, and they will need to pay a fee for the privilege.
But the original creator is arguably poorer if they didn’t get paid for the copy you gave away…
That’s fine, but I guess I’d love to hear you engage with how your view interacts with the First Amendment. If the great-great-great-grandchildren of Shakespeare wanted to tell us that we couldn’t stage performances of Hamlet (anywhere, ever)—or, more likely and more analogous to the current Dr. Seuss situation, The Merchant of Venice or Othello, I suppose—do you think they should be able to? What implications do you think this would have for the arts?
If Thomas Sowell converted back to Marxism in his old age (speaking of Marx), and decided that he no longer agreed with his book A Conflict of Visions and decided that it could no longer be published or sold, should he be able to stop the rest of us from copying and circulating and reading it? Should the point at which he happens to die cut off all further possibility of his changing his mind again and lifting his embargo on our freedom to obtain copies of his books—or, if the power of all those decisions then passes to his children or other heirs or devisees, and his children or grandchildren end up being super-woke progressives, should they have the power to keep his books from us, against the wishes of both the author and the public?
If the creators of a movie criticizing a politician (Citizens United’s Hillary: The Movie, say) could be bought off by that politician, or just genuinely had a good-faith change of mind, and decided they no longer wanted to have any part in criticizing that politician, should they be able to keep the rest of us from hearing and sharing their previous criticisms?
What implications do you think this would have for political dissent and discourse?
Could be worth it if Marx and Hitler recanted their books that have caused so much damage… or at least if they’d done so a few decades ago, might be too late now…
You’d have to prove that the supposed heir really had an ownership right to Shakespeare’s works, and since that is impossible it is moot. I think the implication is that Dr. Seuss’ heirs, who do have an enforceable right, can control how his works are published and presented.
I don’t much care about the “arts.” Capitalism would see to the proper price for various works.
Buying a book is a license to read and lend as the owner of the book sees fit. You can’t reprint it though and sell new copies to other people.
See the Rule Against Perpetuities. In short, there is a limit to how much a dead person’s rules can affect future property owners.
Yes. That happens all the time. See what happened to the Drudge Report.
You would always be able to write new works of political dissent and discourse.
Fascinating discussion.
While we have an intuitive sense of a right to possession of real property, that right isn’t so obvious when speaking of intellectual property. I find it amusing to discuss something “collectivist” about denying someone eternal exclusive claims on intellectual property, given that the entire concept of “intellectual property” seems to be a utilitarian concession. That is, intellectual property is secured through telling others that they may not do certain things, even when those things in no way involve the owner of the intellectual property.
One might ask “why am I not allowed to build this machine a particular way, a way that I thought up myself, simply because someone else happens to have thought of it first and secured a patent on the idea?” That seems a reasonable question. The answer is also reasonable: “because we have decided that almost everyone is better off if we grant exclusive ownership of that idea for a time, as an incentive for people to come up with great ideas from which we’ll all benefit.”
The exchange for copyright would be similar, except that we assume that people won’t independently write the same text in any significant sense. In that respect, it differs from patents, which are inherently broader and more general in scope.
Anyway, the idea of intellectual property seems a wholly utilitarian one, necessarily arbitrary, and the kind of thing that might reasonably be tweaked and tuned over the decades in an effort to make it serve its desired purpose more effectively.
I don’t know if someone could be prevented from building a machine of their own independent idea, that someone else thought of and patented, for their own personal use. (Although proving that might be difficult.) It seems that what the patent is really about is SELLING those machines to others, or even selling the IDEA to others…
Probably true, but I don’t think that changes my point.
Maybe not.
Of course part of what accounts for changing patent and copyright durations over time, could simply be how much longer people live now, compared to when patent and copyright laws were first invented.
If you want an interesting take on the impact of intellectual property being owned in perpetuity read Frank Chadwick’s Varoki / Commonwealth SF series: How Dark the World Becomes, Come the Revolution, Chain of Command, and Ship of Destiny. In it Earth is impoverished because other start nations patented key technology first.
I reviewed most of these books. They are fun reads. The links take you to the publisher, Baen, rather than Amazon.
Projecting their own racism onto a non-racist cartoon? Scott Adams (with whom I generally disagree, but says some interesting things) about his own cartoon. He says that all his characters have “flaws”, but the only non-white character in his strip is an Indian whose mandatory cartoon character flaw is that he is “inexperienced” which will go away as he ages, but is not an inherent character flaw.
He says that he wants to include other races and ethnicities and bring in diversity, but that if he draws a black man and draws black features, he will be accused of stereotyping, which is racism. If he exaggerates black features he will be accused of demeaning, and that’s racism. And if he minimizes black features, he’ll be accused of whitening, or removing blackness from the character, which is again racist.
So he made an offer to any black person, to draw his character, and write the background and personality of the character, including a description of his “flaw”, and he’ll use that. But he says that he won’t include any non-white character that hasn’t been drawn and scripted by a non-white person.
If copyright should be everlasting like real property, should a book be subject to adverse possession (which ranges from as low as 3 years to as long as 40 years).
I think it’s a great and insightful point. The current orthodoxy is a catch-22, they get you coming and going: For years Disney didn’t have a lot of black characters in their animated fairy-tale children’s movies, and critics criticized them for that; then Disney made The Lion King, and critics said that Disney could only manage to have black or African characters if they were animals, and that Disney had unfairly made the black voices the villains, the hyenas. (I guess James Earl Jones, voicing the literally lionized embodiment of everything good in the kingdom, doesn’t count?) Then Disney made the beautiful and brilliant and culturally interesting and positive The Princess and the Frog, and the critics literally said, “The princess is black: so the rest of the characters can be racial stereotypes”. Totally unfair and untrue, but also, it proves too much: You can’t win.
I’ll try to give you a sensible answer…
… IF you can give me a sensible definition of what “adverse possession” means in the context of something that is owned in a strictly abstract and legal sense, and that has no aspect of actual possession associated with it. ;)
It’s just like with land. Say the owner of a copyright sells a large number of copies, and then the market has peaked and he doesn’t reprint it, intending to wait for another several years before publishing it under its existing still-in-force copyright. In the interim, say, the original publisher dies or just turns his back on the business, perhaps intending to concentrate on it in future years. And in the mean time, another publisher publishes the book, and he, or the family, for doesn’t know that the book has been reprinted against copyright.
A few years later, while the book is still under the existing copyright, when they go to publish the book, they find out that the market is again saturated from the copyright-infringing printing. The family sues the new publisher for damages but adverse possession laws apply to copyrights, so the family has no recourse.
In fact the new publisher has claimed full copyright, just as a squatter claims ownership of the land that he is using contrary to the unenforced No Trespassing signs.
Yup. And it wasn’t even hard!
You own a copy of the movie. You can ignore it, give it away, burn it. What you can’t do is a long list, referenced on every pre-record box of the era as the cryptic civil code it’s covered by. Owning a copy of a movie is like owning a snapshot of a building. It doesn’t mean you own the property. You can’t show your tape and charge admission, for example; you didn’t pay for those rights.
Most capital property is an agreed-on abstraction. No, not if you’re in a private home, ready to defend your property. But in the real world, the big stuff is real and abstract at the same time. You can (usually) freely walk around an office building or a mall. It doesn’t give you squatter’s rights. The ownership may be, Macerich LLP, a division of Great Lakes Development Co, a wholly owned subsidiary of Royal Dutch Holdings NV. The ownership is every bit as abstract as the connection between your VHS copy of “Police Squad!” and the stockholders of National Amusements, majority shareholders in Viacom/CBS/Paramount. And both are enforceable ownership rights.