Interview with a copyright lawyer

Amanda Fortner

 

Final Project: Interview with a copyright lawyer about a book that advocates the dissolution of copyright.

 

David Shields’ Reality Hunger: A Manifesto has interested me for a while—all right, well, not so much interested as inflamed me. As an aspiring author and therefore creative artist, I am set to benefit from copyright law—simply, so long as I stick to writing my own words, or get the permissions from those whose words I borrow, I’m going to collect royalties from those who purchase copies of my works. If, however, David Shields’ vision of the world were to come true, as soon as the words were out of my pen I would not own them (of course, I don’t actually own the words themselves—this will come up in the interview. I mean I would own the order in which I place them): everybody would. Whoever wanted to could self-publish my books with his or her name on them, and if he or she could convince some people to pay money for them, that money would go to the swindler, not to me.

 

I wrote a rather inflamed defense of copyright law for my first webpaper, while Cassie took a far more measured approach, with all of her webpapers addressing copyright law. Like Cassie’s parents, my father is a copyright lawyer, so I decided it would be interesting to get an expert’s point of view on copyright law. If we’re talking bias (like we did exhaustively with Berko), it must be admitted that he has not read Reality Hunger, and had to get what I thought were the “important” bits in order to bring him up to speed and allow him to comment. But I did my best to remain objective, both in my questions and in the background material I presented. I also did my best to, as Sagan recommends, question my views: in the second round of interview questions, I played devil’s advocate to the best of my ability. Also to be admitted is that he is my father, and that copyright law is his job: hence, he will have biases both towards me and towards copyright law, as I am his daughter and if copyright law is dissolved he will be out of a job.

 

That being said, I found his answers very interesting and thought-provoking, and I hope you will too. I will here present the text of the interviews, slightly edited (because he couldn’t help himself from taking cracks at the Obama administration, the New York Times, NPR, and others on his bad list, and while I found them entertaining they are rather distracting). Then I will comment both on how I came up with the questions to ask him and what I think his answers signify within the context of Reality Hunger and within the larger context of our class, paying especial attention to our search for the meaning of “reality.”

 

An introduction:

 

Bottom line:  there is fact, there is truth, and copyright is important in order to protect creativity and to provide an incentive towards creation.  Ask anyone who thinks otherwise:  will you write, perform, paint and create if you never get any rewards for your mental work, nor get even the slightest bit of credit for it?  And even if you are (and anyone who says they would be is basing that response on a boatload of unthinking and assumptions), do you think others will?  Do you think Apple would create its OS and the Macs?  etc etc etc

 

But first, some background info on my dad.

 

Joseph Fortner currently practices law at the law firm Halloran & Sage LLP in Hartford, Connecticut. He graduated in 1978 from Duke University with an AB in Sociology, and graduated in 1982 from Vanderbilt Law School. 

 

And now, the background info I gave him on Reality Hunger.

 

Background info on Shields and Reality Hunger: A Manifesto:

-“I don’t feel any of the guilt attached to “plagiarism,” which seems to me organically connected to creativity itself.” –David Shields, Reality Hunger: A Manifesto

- Statement of intent: “My intent is to write the ars poetica for a burgeoning group of interrelated (but unconnected) artists in a multitude of forms and media (lyric essay, prose poem, collage novel, visual art, film, television, radio, performance art, rap, stand-up comedy, graffiti) who are breaking larger and larger chunks of “reality” into their work.” (3)

-“Capitalism implies and induces insecurity, which is constantly being exploited, of course, by all sorts of people selling things.” (44)

-“Anything that exists in the culture is fair game to assimilate into a new work, and having preexisted media of some kind in the new piece is thrilling in a way that “fiction” can’t be.” (44)

-“Art is theft.” (87)

-“The evolution of copyright law has effectively stunted the development of sampling, thereby protecting the creative property of artists but obstructing the natural evolution of human creativity, which has always possessed cannibalistic tendencies.” (100)

-“People are always talking about originality, but what do they mean?...What can we call our own except energy, strength, and will? If I could give an account of all that I owe to great predecessors and contemporaries, there would be but a small balance in my favor.” (100)

-“…Which is similar, in a sense, to the situation regarding file sharing: the companies complaining about downloading (e.g., Sony) are the same companies making the machines that do the downloading. Instead of prosecuting people who have an interest in their product, these companies could try to figure out how to use this consumer interest to their advantage. Mass-media producers are wasting their time trying to hold the dam together, but it broke several years ago. The technology to duplicate, copy, and sample mass-produced media isn’t going away.” (101)

-“This book contains hundreds of quotations that go unacknowledged in the body of the text. I’m trying to regain a freedom that writers from Montaigne to Burroughs took for granted and that we have lost. Your uncertainty about whose words you’ve just read is not a bug but a feature. A major focus of Reality Hunger is appropriation and plagiarism and what these terms mean. I can hardly treat the topic deeply without engaging in it. That would be like writing a book about lying and not being permitted to lie in it. Or writing a book about destroying capitalism but being told it can’t be published because it might harm the publishing industry. However, Random House lawyers determined that it was necessary for me to provide a complete list of citations; the list follows (except, of course, for any sources I couldn’t find or forgot along the way). If you would like to restore this book to the form in which I intended it to be read, simply grab a sharp pair of scissors or a razor blade or a box cutter and remove pages 210-218 by cutting along the dotted line. Who owns the words? Who owns the music and the rest of our culture? We do—all of us—though not all of us know it yet. Reality cannot be copyrighted. Stop; don’t read any further.” (209)

-price of Reality Hunger: A Manifesto at Borders: $24.95.

 

And now, the questions!

 

1. First off, what do you have to say to the statement (said originally by Terence in the second century BC) that “There is nothing new under the sun?”

Bumper sticker thought, at best.  If it were true, we would be all viewing line drawings of mastodons, wearing fur…and banging bones.  The fact is, new things are created each and every minute.  Indeed, the statement “there is nothing new under the sun,” if “originally” said by Terence, was itself something new, wasn’t it.  This, then, is a cute, trite phrase which is intended to obliterate the value of the mind and of its creations. 

 

2. Comment on what you think the digital age, and the increasing digitization of media (books, movies, music) means for copyright and for artists. A quote from Shields’ book: “A new regime of digital technology has now disrupted all business models based on mass-produced copies, including the livelihood of artists. The contours of the electronic economy are still emerging, but while they do, the wealth derived from the old business model is being spent to try to protect that old model. Laws based on the mass-produced copy are being taken to the extreme, while desperate measures to outlaw new technologies in the marketplace “for our protection” are introduced in misguided righteousness. This is to be expected: entire industries (newspapers, magazines, book publishers, movie studios, record labels) are threatened with demise, and most will die. The new model is based on the intangible assets of digital bits: copies are no longer cheap but free and flow freely everywhere… Many methods have been employed to try to stop the indiscriminate spread of copies, including copy-protection schemes, hardware-crippling devices, education programs, and statutes, but all have proved ineffectual… Copies have been dethroned… In a regime of superabundant free copies, copies are no longer the basis of wealth. Now relationships, links, connection, and sharing are. Value has shifted away from a copy toward the many ways to recall, annotate, personalize, edit, authenticate, display, mark, transfer, and engage a work. Art is a conversation, not a patent office. The citation of sources belongs to the realms of journalism and scholarship, not art. Reality can’t be copyrighted.” (28-29)

This author is a bitter man.  He has had a “bad hair day” with lawyers from Random House, and decided to make money from it.  Now to the substance:  new technology is nothing new.  Whether it’s digital, ballpoint pens, tape recorders, quill pens, printing presses, or a room full of monks, there is always “something new under the sun” as a means of making copies, but the fact that copies are made is not new.  What is critical is having a system – which copyright is (when properly used) – which rewards the creations of the mind.   What people like Shields ignore is cause and effect:  without a reward for creativity, there would soon be “nothing new under the sun,” for there would be neither a reason to create, nor (because the artists would starve) an ability to create.  (And if the response is “well, artists can be supported by the State,” take a look at the state-sanctioned “art” created in Cuba, the Soviet Union and Nazi Germany and ask whether (a) that’s creative and (b) what you want.)

 

My question of Shields is simple:  will you be happy writing your book and never getting a penny for your effort?  Not a penny from a buyer, or from the government?  And if so, will you go ahead and write a bunch of other ones?

 

3. How do you feel about sampling, legally and personally? It is defined by Shields as “the technique of taking a section of existing recorded sound and placing it within an “original” composition…” (88).

As a legal matter, the propriety of sampling is, in part, dependent upon the extent to which essence of the original work is used.  (even then, licensing is available).  On a personal and historical level, artists have used passages from and evoked images from prior works since the dawn of time – what is creative is what they do with them.  Think about Rachmaninoff’s Variations on a Theme of Paganini; Brahms Variations on a Theme by Haydn, etc.  Again, copyright has dealt with this in the past.  What is important is (a) attribution to the original work, and (b) if necessary, proper license fees. 

What causes problems – and may eventually create a backlash – is where copyright holders are overly piggy in claiming a theme/sound is “theirs.”  You run into cases where someone claims that because he wrote a lyric about a furnace or the garbage man, every song that includes the image of a furnace or the garbage men is theirs and then try seek essentially a ransom from the successful artist who goes Top 40 with the “Furnace Song” or the “Garbage Men Song” (I’ve made this fact situation up.). 

 

4. Comment on the music industry and pirating, bearing in mind the quotes on 100 and 101 that were provided in the section on background information.

As was held in the original Betamax case, the fact that technology can be used for improper copying doesn’t mean that it’s automatically going to be used that way.  The fact is, as discussed above, “pirating” is something that has been going on for a long time, so pretending that this is something new that mandates the evisceration of copyright protection is nonsense.  Having said that, someone far more creative than I would be wise to reconsider the manner in which compensation occurs to various persons and entities in the distribution chain, for while some pirating is because of the self-centered (note I did not say “selfish”) nature of the person doing the pirating, for some it is a reaction to pricing, and there should be a more efficient way to distribute works. 

 

5. Also comment on these cases: “Chris Moukarbel, who was sued by Paramount Pictures over a twelve-minute video based on a bootleg Oliver Stone film script about 9/11, had another video in a New York gallery exhibition that sought to marry politics and art. This one was created from film shot in the process of making the video that led to the lawsuit. Paramount filed suit in the United States District Court in Washington, saying that Mr. Moukarbel’s original video, World Trade Center 2006, infringed on the copyright of the screenplay for Mr. Stone’s $60 million film World Trade Center. “I’m interested in memorial and the way Hollywood represents historical events,” Mr. Moukarbel said in an interview a month before the Paramount movie was released. “Through their access and budget, they’re able to affect a lot of people’s ideas about an event and also affect policy. I was deliberately using their script and preempting their release to make a statement about power.” (102)

It always amazes me what nonsensical justifications lazy people like Moukarbel come up with for their laziness.  “A statement about power” is so Sixties.  I guess he was speaking truth to power too, right.  C’mon – if he’s interested in memorial and how Hollywood represents, he doesn’t need to steal 12 minutes of Oliver Stone’s work.  He could write his own script, shoot his own scenes, and discuss how Stone inaccurately discussed the events of 9/11.  Probably would be a good story, too.   

 

And this one: “Shepard Fairey, borrowing liberally from traditions of urban art and the propaganda poster, took an image off Google and transformed it into a major icon of the 2008 campaign. The image (Obama, atop the word HOPE, looking skyward and awash in red, white and blue) condensed the feeling of the Obama campaign into a single visual statement. It wasn’t until after the election to that the Associated Press realized that it owned the copyright to one of the photos from which Fairey worked. Mannie Garcia, the photographer who took the photo, had no idea it was his work until it was pointed out to him. He later claimed that it was he who actually owned the copyright. This didn’t stop the Associated Press from demanding a large sum of money in “damages” for the now famous photo, which—until very recently—it didn’t know it had and in fact may not own the copyright to. In 2009, backed by Stanford University’s Fair Use Project, Fairey countersued the AP. When Fairey later acknowledged that he had lied about which image he’d used as the basis for his poster, Fairey’s attorneys withdrew from the case. Lawrence Lessig, the director of the Edmond J. Safra Foundation Center for Ethics at Harvard, who had been advising Fairey but not representing him, said that the significant issue in fair-use cases is whether the image has been transformed from the original; if it has been fundamentally transformed, he said, it is protected by copyright law.” (103)

Lessig is acknowledged as knowing this area far better than most (esp. me), but I think he’s overstating whether transformation is the be all and end all of the analysis for a “fair use” case.  It is important, but you also have a number of other issues, not the least of which is the loss of the author’s ability to profit from his original work, and whether the infringer acted in good faith.  His admitted lies about the image he used are, frankly, fatal, esp. if he made a boatload of money from his poster. 

 

6. What is a fact? What is truth? What is a lie?

These are obviously deep philosophical questions, about which libraries have been written.

Fact:  an occurrence which occurred; a truth which is true.  That sounds like a tautology, but consider it:  the essence is that the occurrence (the WTC came down on 9/11/2001), or the truth (fresh water freezes on the planet earth under normal atmospheric conditions at 32 degrees F; a suspension bridge will collapse if you don’t connect its various metal parts) exists without spin, agenda, or bias.  It doesn’t – and cannot -- take into account political viewpoints, politically correct requirements, or efforts to change this.  This, for instance, can be contrasted with the “fact” that “we lost the Tet Offensive,” a “fact” that several writers are concluding is false, but that persons with an agenda (ie, the press) created that story line and sold it as “fact.”  Facts should be testable and provable by anyone who legitimately tests them.  And yes, I know that things change  -- that we used to think the earth was the center of the universe, but this simply reflects that the information available was not as complete as what we later developed. 

Truths are systems which are grounded in reality, and which reflect the way things work.  To the extent they are moral codes, they stem from an underlying system of the “good.” I know that moral relativists will say “yeah, but each society has it’s meaning of what’s good,” but in fact, a comparison about the outcome of each society’s moral systems gives a pretty damn good idea of whether that system is “true” and “good.”  I presume that even pointy headed liberal professors would not claim that Nazi Germany, or the South’s slavery system, or a cannibalistic society is a “good” one.  The outcome, then, can give guidance as to whether the “truth” at issue is a “good one;” Islam is subject to serious doubt not just because of terrorists and mistreatment of women, but also because the societies in which it has been predominantly remain stagnant in the 14th century, and have been there for 700 years.  Truths should, then, be testable by logic and/or experience.  How are they testable?  Well, look at the outcome in societies where they’ve been ignored or not followed – including the degeneration of our own.   As for what is a truth:  the Ten Commandments and much of Western European (pre-1900) thought aren’t a bad place to start, I’d say: the outcome has been pretty good on a number of levels. 

Truth is, then, a slave to reality.  It must be.

A lie:  something provably false; something which ignores reality, often for the benefit of the speaker or the speaker’s agenda/friends.  Something which brings into the statement a non-reality based premise or concept. 

 

7. What is reality? (Be careful with this one, because it’s the question we’ve been working to answer all semester).

Reality is that if you stick your finger in a wax candle, your finger will burn.  It is that if you try to build a suspension bridge without connecting the various girders etc., it will collapse.  It is that if you step off a boat in the middle of the Arctic Ocean wearing a Speed-O, you will freeze to death.  (Those are truths, too.)  In other words, reality is based on experience, based on “what really happens” and what the impact is of doing something. 

 

So that was the first round of questioning. I think I did okay—I tried to avoid asking leading questions, because “leading the witness” is a traditional court no-no. Plus, I wanted my dad to give me his own answers, not the answers he thought I wanted him to give (not that that would ever really influence him, but anyway). I was most interested in what he had to say about truth, facts, lies, and reality (and I think the only place where I can be accused of “leading” is in the reality question, but considering that the word was all but taboo by the time class was over, I think I’m justified). He clearly ascribes to an “absolutist” or “materialist” viewpoint of the world, in which there may be many different layers but there us, underneath it all, a “bottom line.” He sees truth and reality as things that are very literal: “…if you stick your finger in a wax candle, your finger will burn.” Essentially, “this is a table.” While there may be nuances and variations, there are certain bedrock truths that will always be true.

 

I wished he would have addressed the cases I presented more from a legal standpoint, and this is reflected in my next round of questions. I was pleased by his response to Lessig’s response to the Shepard Fairey case, and noted how it added a new dimension to his interpretation of copyright law. He says that Fairey might have had a shot if he had been able to prove that he hadn’t impacted Garcia/the AP’s ability to profit off the photo, and that he had been acting in good faith, but Fairey’s admission of his lies and the fact that he made “a boatload” of money off the poster kind of doomed his case. It was very interesting to see him getting into the minutiae of such cases, and I made an effort to get him to do so with some of the others he mentions, such as “the original Betamax case.” In the end, however, he did what he’s done most of my childhood: when I didn’t know what he meant, he directed me to a reference—in this case, Wikipedia.

 

Wikipedia has this to say about the Betamax case: “Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)[1], also known as the "Betamax case", is a decision by the Supreme Court of the United States which ruled that the making of individual copies of complete television shows for purposes of time-shifting does not constitute copyright infringement, but is fair use. The Court also ruled that the manufacturers of home video recording devices, such as Betamax or other VCRs (referred to as VTRs in the case), cannot be liable for infringement.” Basically, the ruling established precedent for a “general test” as to whether something is fair use or not, but the ruling was by no means exhaustive. It also ruled that noncommercial home recording was fair use, but one cannot by any means police all home recordings done to make sure they’re noncommercial, nor should one be able to because that would just be one an enormous breach of privacy. That aside, however, the “Betamax case” was a landmark in copyright law history.

 

I also found it interesting that he in some instances supported defendants as opposed to copyright holders (although he is a defense lawyer, so I suppose this isn’t too big of a surprise). “What causes problems – and may eventually create a backlash – is where copyright holders are overly piggy in claiming a theme/sound is “theirs,” he says, and also states beforehand that “What is important is (a) attribution to the original work, and (b) if necessary, proper license fees.” I suppose, then, that where that gets ticklish is the license fees—how much appropriation does one need if one is to pay a license fee? And what can one license? I mean, I can’t copyright the word “the,” obviously. But what about garbage men, and furnace? This brings me to another interesting case that I wish I’d addressed with him: that of Coldplay and Joe Satriani. “Virtuosic rock guitarist Joe Satriani, 52, has filed a copyright infringement lawsuit against the band for allegedly lifting "substantial original portions" of his 2004 instrumental "If I Could Fly" for Vida's title track,” says SPIN.com. That would be a good case to examine in order to address how much one can appropriate for one’s own work. Essentially, how much can one appropriate before one’s own work ceases to be one’s own?

 

Shields has a quote about the DJ Girl Talk on page 97: “An artist making use of samples, while going by a variety of names, is, essentially, a creative editor, presenting selections by other artists in a new context and adding notes of their own.” Girl Talk is taking entire songs from other artists and juxtaposing them with other artists. DJ Earworm does this too—one can find artists like Kanye West, The Fray, The Police and the Black Eyed Peas all on one track—but the reason that their activities are legal is because one can get their albums completely free of charge. In some cases artists provide the option to give a “donation,” but this is an option. These works are free.

 

The next set of questions.

 

1. You have cited the need for a monetary incentive to create. Does this mean, then, that creativity is only enforced by the prospect of monetary reward? What about the drive in an artist to create for creativity and/or art’s sake, and to give that art to the public for the same reason?

 

Fish gotta swim, and artists gotta eat.  Money pays the bills.  Your alternative is that the “public” decides what artists and what art are worthy compensation – do you really want Nancy Pelosi, Harry Reid, and Michelle Obama making that decision?  That’s not a facetious formulation:  if you don’t let the private sector decide through the marketplace what is worthy of being rewarded, then some group of politicians must decide.  And while folks like the NYT like to think that’s OK because they’ll be the arbiters, that didn’t work so well in the Soviet Union, did it. 

 

And yes, artists do create for the sake of creativity.  And it is important.  But even then, part of what entices is that you are recognized for what you do, what you create, even if not monetarily.  Allowing unfettered copying removes that incentive.

 

2.      What is “the original Betamax case”? (see your answer to number 4) Can you go into more detail about its impact on the field of copyright law?

Betamax was Sony v. Universal City Studios; the Wikipedia article is:  http://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc..  As you can see, it had a substantial impact on that field.

 

3.      How and why would you say copyright law evolved? When? Can you give us a brief summary, or is it just too complicated? Would you say it is more of a process of addition (as opposed to attrition)? 

 

That’s a book too.  Copyright predated the U.S. Constituion, but is included in the powers of the Federal government in Article 1, Section 8, Clause 8 (to promote the useful arts, Congress is to establish laws securing for limited times exclusive rights to works).  For what it’s worth, here’s a wikipedia history on this:  http://en.wikipedia.org/wiki/History_of_copyright_law, and at least according to that article, you can blame the Irish.

 

Not sure what you mean by process of addition vs. attrition.  The various protections have been changed over the years by statutory changes that have changed the length of copyright protection (to too long a period, IMHO, but something that developed because studios like Disney were trying to keep their exclusive rights to mice long after Walt died), as well as who have author rights.  At the same time, under common law principals, courts effect changes in the guise of statutory or congressional interpretation. 

 

4.      Why wouldn’t having artists supported by the government work? Can you go into more detail on this (also see your answer to number 2)?

 

Who decides who to support?  How are they the arbiter of what’s worthy of being supported?  What do you do if you decide you don’t like the stuff that the gov’t has decided should be supported?  As a general matter, gov’t employees have no incentive to do anything creative or new; you end up with a stifling of new ideas.  As I mentioned in the last case, perfect examples of what you get from gov’t support are Soviet art, the wonderful operas from North Korea and China, and Nazi buildings. 

 

5.      Can you comment (even vaguely) about copyright cases in your close experience (not necessarily cases that you have worked on; I’m aware of liability issues—maybe just cases that others have worked on and that you happen to be particularly familiar with) and what connections they may have to Shields’ work?

 

Not quite sure what to comment.  My main complaint that I’ve had with copyright holders is where they stretch the bounds of what they “created” into things that really weren’t created by them, and then use the threats of copyright laws, court injunctions, and attorneys fees to blackmail the little guy.  Some of those little guys should be shut down, but there are innocent ones who get pulled in because the copyright holder over-reaches what he really created, and then threatens.  The solution here (as in so much other litigation) is to have a “loser pays” system, so that if the copyright holder makes a claim and loses, he pays the defendant’s legal fees.  That way, there’s a brake on over-reaching.

 

 

6.      Shields says that he is merely “trying to regain a freedom that writers from Montaigne to Burroughs took for granted and that we have lost.” Can you comment on this freedom, and what Shields might be addressing when he speaking of it? Personally I think it is the freedom to quote with impunity, without asking whoever “owns” the quote for permission to quote it and/or paying the quote’s author royalties; and to quote without citation, as if the words are your own. This is essentially what I’m taking from what Shields has said.

 

In reality, the frustration of Shields and others lies perhaps with what I mentioned in 5 above, and also with the fact that copyright has been statutorily expanded beyond what was probably envisioned initially.  The concept is to have a law that encourages writers, artists, etc.  Yet, the exclusive copyright has been changed over the years (see http://www.copyright.gov/help/faq/faq-duration.html#duration), so that it lasts well beyond the life of the original author.  IMHO, this does nothing to encourage, and just creates essentially perpetual “rights” that cause problems.  If I were to redesign, I’d look at drastically shortening the length of the copyright, but perhaps have an ability to renew if you are actually using the work. 

 

My thoughts…

 

The money thing is really interesting, because it dovetails nicely with the first paper, vitriolic as it might be, that I wrote about Shields’ book. “With no incentive except whatever these entities choose to pay them, if they choose to pay them at all, creators stop creating. And this is, in the end, why communism fails: lack of incentive,” I say in this paper, which I titled very dramatically “How To Kill Creative Art.” But my dad backs me up, despite his having never read the paper: “And yes, artists do create for the sake of creativity.  And it is important.  But even then, part of what entices is that you are recognized for what you do, what you create, even if not monetarily.  Allowing unfettered copying removes that incentive.” While it is important to artists that their work gets out there, and I know I can say from personal experience that if you just fed me and clothed me and housed me relatively comfortably I wouldn’t care if you paid me or not, what is very important to me is that I get recognized as having done the work I’ve done. Good, bad, whatever (well, it’s not whatever but that’s a whole different issue): I just want to get recognized, and be praised or blamed as the case may be.

 

I wanted to get him to say more about the Betamax case and other such cases, but he was rather useless on that subject. Humph. What he was more useful on was the history of copyright law, and its evolution: “Copyright predated the U.S. Constitution, but is included in the powers of the Federal government in Article 1, Section 8, Clause 8 (to promote the useful arts, Congress is to establish laws securing for limited times exclusive rights to works).” It’s interesting to think that while Shields believes that copyright is this nasty new thing designed to cut off the “natural evolution of human creativity, which has always possessed cannibalistic tendencies” (100), it’s actually been there for nigh on forever. And this makes sense. I mean, if copyright law didn’t exist before 1984, why do we even know who the classic authors (Dickens, Charlemagne, Augustine) were? Why wouldn’t somebody grab up Augustine’s Confessions and say that they were actually the confessions of, say, Wulfric? In a world without copyright law, it’s whoever catches on faster that goes down in history as the author. If Wulfric can successfully defend his claim on the Confessions, Wulfric is the author. But that doesn’t mean he’s making any money off them…

 

Speaking of not making money: “Who decides who to support?  How are they the arbiter of what’s worthy of being supported?  What do you do if you decide you don’t like the stuff that the gov’t has decided should be supported?  As a general matter, gov’t employees have no incentive to do anything creative or new; you end up with a stifling of new ideas.” This brings up another interesting problem. Whether or not you think government employees have the incentive to do anything creative, one must look at cases such as “the NEA four:” “Karen Finley, Tim Miller, John Fleck, and Holly Hughes, were performance artists whose proposed grants from the United States government's National Endowment for the Arts (NEA) were vetoed by John Frohnmayer in June 1990. Grants were overtly vetoed on the basis of subject matter after the artists had successfully passed through a peer review process,” says Wikipedia. This is an example of the government censoring who gets grant money based on one individual’s personal sensibilities. Essentially, if an artist’s work does not meet with the tastes of those currently in power, he or she is not going to get the grant. Now imagine a world where the only money for art whatsoever comes from grants. Unless the artist has a patrician or is significantly wealthy enough to support him or herself through other means, the art is not going to get paid. The artist is going to have to get “a real job.”

 

In our current system, however, the artist is evaluated by millions of people. A book is published, and the public decides whether or not to buy it, based on advice from both private reviewers (the New York Times, the Wall Street Journal, etc.) and from friends or family members or what have you. If enough people decide to buy a book, the artist becomes a sensation, and even more people decide to buy it. Whether the artist gets government money at any point in the process is beside the point. J.K. Rowling, a struggling single mother working in a café at the time she was writing Harry Potter and the Sorcerer’s Stone, did not receive government money for her art (although she could have sorely needed it at the time). She might not have written the stories that have so captivated children (and adults too, now) if she hadn’t had the glimmer of hope that to do so might lift her out of poverty. Instead, she might have taken another shift at the café.

 

 I asked my dad about copyright cases in his experience, and while he didn’t really answer the question he posed another for me, that I asked him in our last set of interviews. “My main complaint that I’ve had with copyright holders is where they stretch the bounds of what they “created” into things that really weren’t created by them, and then use the threats of copyright laws, court injunctions, and attorneys fees to blackmail the little guy.  Some of those little guys should be shut down, but there are innocent ones who get pulled in because the copyright holder over-reaches what he really created, and then threatens,” he says. Essentially, he means the creator of Alien suing the creator of E.T. because both movies about aliens, or I, Robot suing Wall-E because both movies are about robots. And that’s where the real question of copyright law lies: how close can one get before the two pieces of art merge? This is the grey area that interests me greatly, and I asked my dad how he would clear up some of this gray area.

 

His answer:

 

1.      Certainty in what is owned.  Think about property.   What is important is knowing what is owned and what is not.
2.  Easier dispute mechanisms with downside for frivolous claims and defenses.
3  Reduced duration with ability to renew. Possibly variating duration depending on what kind of work.
4. I'd think about licensing issues.
5.  I would also make more available to the creative people better info on what exists re rights before they sign away rights before they know better.

 

So, basically… more complete clarification on who owns what, and how much of it they can own, and with that would come easier mechanisms for a learned judge to simply say, “No, this is crap. You can’t claim damages for every song that has a furnace in it, even if you did invent ‘The Furnace Song’ (Note: there is such a song. My dad made it up. See endnote. There is also a song entitled “The Garbage Men,” by the same “artist.”). Case dismissed. Next!” instead of cases like this that drag on for ages and lose everybody money (except the lawyers).

 

And then there’s the “Reduced duration with ability to renew. Possibly variation duration depending on what kind of work.” He said elsewhere that copyright should end at the author’s death, which it technically does—the work then passes into the public domain. But then there are cases (see Tolkien) where the copyright passes into the hands of the author’s heirs, and remains copyright. Art can be copyrighted for generations like this. I guess, then, that he’s saying he thinks copyright should be able to be extended, but it should be harder than simply saying, “One day, son, all this will be yours.” If the kid doesn’t care for it (“What, the curtains?”) then let it pass into the public domain.

We’re going to ignore point number 4 because it’s not clarified at all, and move onto number 5: “I would also make more available to the creative people better info on what exists re rights before they sign away rights before they know better.” Essentially, make sure artists know what rights they have and what rights they are giving away before they actually sign away their souls, and the products thereof, for the next hundred million years. This is common sense: come out with some easy to understand literature about what each sort of contract means (for example, universal rights…ugh) and what one’s rights are initially.

So I guess what I’m trying to prove with that question, or at least with my dad’s expert answer to that question, is that copyright law is not obsolete, or already dead, or simply unfair. Copyright law has its problems, and plenty of frivolous lawsuits clogging the legal gutters, making money (but also headaches) for people like him. But it is not a system that cannot be fixed. Shields’ argument is childishly attractive: it’s diseased? Blow it all up! But my dad offers suggestions (albeit not particularly detailed ones, but he was at my sister’s orchestra concert and had to hide his CrackBerry from my mother’s eyes) as to ways it can be clarified and fixed, to offer money, incentives, and copyright protection to all.