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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
Ah.
I think something like that does actually apply to copyright, in that the copyright holder is expected to exercise some diligence in protecting and enforcing his copyright. The situation you’re describing sounds like a failure to police a copyright, and to allow it to essentially revert to the public domain.
I could be wrong — in which case perhaps the Caveman will be good enough to set me right — but I think this is the motivation behind those cease-and-desist letters that seem so petty but are necessary to maintain the vitality of a copyright.
Xerox used to take full page ads in Daily Variety, reminding screenwriters not to give them any free, but potentially harmful, promotion: “You Can’t Xerox a Xerox on a Xerox. However, you can make a photocopy of a photocopy on a Xerox copier”.
Thanks, all. I guess that answers that. :)
And a Sanka, please?
Nor can you control the evolution of a language!
Why not? If a corporation can “own” a song, novel, or invention, why not a word? If Disney can decide that no one should watch Song of the South, if the Seuss estate can decree that no one should read And to Think That I Saw It on Mulberry Street, why shouldn’t the Xerox corporation have the right sue anyone who misuses “Xerox” as a verb?
Because it would be expensive and silly – and bad PR – to launch millions of lawsuits against millions of people in millions of courts?
The same could be said of the RIAA lawsuits against Napster users, but that didn’t stop them from trying.
They aren’t suing, but it’s a serious issue. Over the years, aspirin, Fridgidaire, Technicolor and Kleenex have all fought to not become generic names–note that aspirin lost that battle.
Federal Express has the same problem. Years ago I saw a business TV show where the reporter, on camera, called various overnight delivery services and asked how much it cost to “Fedex” something from New York to Atlanta. Every customer service rep they called fell for it, quoting rates and delivery times, despite the very obvious fact that in a literal sense, not one of them could “Fed Ex” anything.
Appropriate from whom? The author is dead (well sort of; leaveing out cryogenics). Mickey Mouse is “owned” by a corporation.
The word “property” when applied to copyright, trademark, etc is a misnomer. The original 14 year terms with an option to renew was a concession that artists get to make money from their work, but that ultimately their work belonged to the culture.
If it isn’t property, then it can’t be appropriated. On the other hand, the money made from the work is property.
Strangely, when I argued this with my brother a couple of decades ago, he used the same example specifically with Mickey Mouse.
I didn’t have an answer for him then, but I obviously have had time to think about it.
Santa Clause has been in the public domain forever. I don’t know of any time that his image has in any way been copyrighted.
There have been some works using his image and name portraying him as a Rambo like figure who kills people, an ill tempered, even cruel figure, and maybe one day he’ll be portrayed as a child molester.
If Santa can take the hits, so can Mickey Mouse.
Well it happens more than occasionally, even in the United States (it’s called eminent domain). But you didn’t really address the argument about the fundamental difference between having something physical that has to be taken from you to be enjoyed by someone else, and getting a copy of something.
You’re mixing up copyright with trademark. It’s the trademark that has to be maintained in a use it or lose it situation.
And unlike copyright, trademark is in perpetuity unless it’s abandoned.
Because you can sing any song you want, you just can’t use it in a publication. Xerox can’t stop anyone from calling a “photocopy” a xerox, they can only threaten screenwriters. They can’t even legally stop screenwriters. And as we know, they finally lost.
If you think real property should be owned in perpetuity, then stop paying your property taxes and see how long you own it.
In the same way, I think intellectual property should be taxed, and as long as the tax (based on the value of the property) is paid you, or anyone can own it in perpetuity. Now I am inclined to allow the first period of copyright or patent out for free, the 17 year time limit on patents seems about right.
At its base governments are a protection racket. Just like the local robber baron or the mafia. This is how I view property taxes, you pay the organization that has a monopoly on violence to recognize and protect your right of ownership. You stop paying, you lose your protection.
Not really, for years restaurant chains wouldn’t even let their staff sing Happy Birthday To You because someone owned the copyright.
We already have something like that with trademarks, right?
Except I don’t think we should have federal property taxes. It’s enough that state and local government tax property. But yes, interesting idea.
I think Skyler meant in a private setting, which is treated differently that what might plausibly be seen as a public performance. You’re right that the song was long a thorn in the side of innocent restaurants; I forget when that was resolved. Odd fact: Originally, the words were different and the song was called “Good Morning to All”.
Even in patent law, I was surprised that competitors can legally construct laboratory devices based on what’s publicly disclosed in the patent applications of opposing companies. Zworykin and Farnsworth each constructed and then tested models of each other’s television camera tubes. Of course, they have to be able to prove that none of the information was obtained illegally. In the simpler legal world of the 1930s, that wasn’t as hard as it is now.
That’s because they were singing it for a business. Also, the Happy Birthday claimants’ claims were long considered baseless but they had a vicious litigation policy that was based on fear more than much else. I’m glad they finally lost in court.
If you went into a restaurant back before their claim was proven wrong and sang happy birthday at your table without the staff participating, there was never a danged thing anyone could have done about it.
Property is a bundle of rights. Taxes are part of the human condition.
Isn’t that the whole point of patent law? You have to disclose so that others can work with and improve on your idea. They just can’t directly copy it for sale.
That’s correct, and many times a company or individual who thinks that they can keep the invention secret so that it can’t be reverse engineered will often choose not to pursue a patent because it requires the invention to be made public.
Patents have become like baseball cards, especially in the tech industry. Companies collect as many as possible so that they can threaten each other with endless patent lawsuits against each other, so they trade patent rights.
When I was working at Dell, a new type of RAM was created that was supposedly capable of being much faster than the previous type. It’s been more than 20 years, so forgive me for not remembering the name. It was something like DDRAM or whatever.
What was important is that they filed a patent application for this new style of RAM and then threatened to sue anyone selling the old type of RAM because they claimed it violated their patent. Or so it was explained to me. I hadn’t gone to law school at that point, so my understanding at the time was not complete. The traditional RAM providers simply upped their game, making their RAM faster than the new style, taking the wind out of the new company’s sails, and after a year of frenetic fear, that simply went away. But in the meantime Dell kept paying royalties to the new RAM company, because buyers were threatened that they couldn’t get a license for the new RAM without paying the royalty on the old RAM to the new company too.
My father in law got into the computer business early and had the company stolen from him while he was in the hospital, it took a few years to get it back from his thieving partner, but he did. That really set the company back and then it never recovered. In the meantime, he applied for a few patents. One was for the first portable computer, which was the size of a largish hand totable tool box. Another patent was for connecting a computer to a cell phone. I have a picture of him on the cover of a very early tech magazine standing in a high speed motor boat with one of those brick sized celluar phones and a now smaller portable computer.
It took about 28 years for the patent to finally get approved because every computer company delayed it as much as possible because they would owe him royalties for every laptop computer with a modem on it that they had ever built. Finally the patent was approved and Toshiba filed for a re-examination of the patent. It was like the Wright Brothers all over again (though not as important). There was only a couple years left on the life of the patent and modems were going out of fashion. Finally, Toshiba and Apple settled and bought the patent for a paltry sum and that was that.
Patents are a joke and do more to stifle innovation than promote it. No one needs encouragement to make things better. Truly innovative inventions like the airplane don’t get rewarded because of patents. The only people who truly profit from patents are the lawyers.
Interesting, did you google that?
This is a knotty problem, because of many issues described above. It is kind of understandable that someone would want to retain rights to her or his own creative works, and maybe even have offspring benefit by heritability of those rights- Mark Helprin takes it a bit far when he demands permanent perpetual rights for all time. But the conduct of copyright and image trolls such as PicRights Intl colluding with wire services like AP and AFP to demand abusive license fees for items of virtually zero value makes me want to trash all copyrights everywhere.
It seems to me that the fairest business handling of copyrights is the 28/28 term set, with any other company interests addressable via trademark and trade dress protections. What should happen after the initial protection period(s) is, after encouragement to place in the public domain, reversion of rights back to the original author(s) who could exercise a positive option to retain a limited copyright but with a low cost defined royalty schedule, to maximize accessibility and public benefit such as applies to recorded music. All too often things that should be out there in Gutenberg.org end up on the shelf, needing EJ Hill’s use it or lose it approach.
There are simple ways to address the author protection. And who cares about Disney’s perpetual marketing cycles? They can make enough off the initial run.
Define “enough.”
Because of presentation and convenience.
Why do people pay for bottled water, instead of just rinsing out old soda bottles or milk cartons, and filling them with water from a public drinking fountain?
Disney is an exception that may prove a different rule. Most inventors/authors/etc don’t already have in place something like Disney’s world-wide distribution system.
well, technically they could Fed Ex it, as a pass-through.
UPS doesn’t actually own The UPS stores around.