BY LOUIS MENAND
THE NEW YORKER
Rod Stewart is being sued over the rights to an image of his own head.
In 1981, a professional photographer named Bonnie Schiffman took a picture of the back of Stewart’s head, which was used, eight years later, on the cover of the album “Storyteller.” Now a different picture of Stewart’s head, also from the back, has been used to promote his Las Vegas act and world tour. Schiffman claims that the resemblance between her photograph and the new image is too close—the legal term is “substantial similarity”—and she is suing for copyright infringement. She is asking for two and a half million dollars.
A copyright is, first and foremost, the right to make a copy. The first products to be protected by copyright—the statutory history begins in Britain, in 1710, with the passage of a law known as the Statute of Anne—were books. Once you buy a book, you can legally do almost anything to it. You can sell it to someone else, you can tear the pages out, you can throw it on a bonfire. God knows you can print terrible things about it. But you cannot make copies of it. The right to do that belongs to the author of the book and his or her heirs and assigns.
As with any right, the right to make a copy is a lot less straightforward than it sounds. As the person who wrote this article, I own the right to make copies of it. Since 1976, in the United States, that right has been born with the article, and there are few formalities still required for me to assert it. The belief that you have irrecoverably forfeited your copyright if you have not sent a copy of your book to the Library of Congress, or put a © on it somewhere, is obsolete.
I have granted The New Yorker an exclusive license to the article for a limited period, after which the magazine retains certain privileges (including printing it in a collection of New Yorker writings and keeping it on its Web site). If, a year from now, someone else, without my permission, reprints my article in a book called “The Most Thoughtful and Penetrating Essays of 2014, ” I can complain that my right to make copies is being violated and, if the court agrees with me, legally suppress the book. Theoretically, the court could compel the publisher to pulp all the unsold copies. Although not the author of this piece, you, too, would likely feel that the publisher of “Most Thoughtful Essays” was a bandit, and you would share my sense of righteous indignation.
But suppose that a Web site, awesomestuff.com, ran an item that said something like “This piece on copyright is a great read!” with a hyperlink on the word “piece” to my article’s page on The New Yorker’s Web site. You wouldn’t think this was banditry at all. You would find it unexceptionable.
This is partly because of what might be called the spatial imaginary of the Web. When you click on a link, you have the sensation that you no longer are at a place called awesomestuff.com but have been virtually transported to an entirely different place, called newyorker.com. A visual change is experienced as a physical change. The link is treated as a footnote; it’s as though you were taking another book off the shelf. The Web reinforces this illusion of movement by adopting a real-estate vocabulary, with terms like “site” (on which nothing can be built), “address” (which you can’t G.P.S.), and “domain” (which is a legal concept, not a duchy).
Some courts have questioned the use of links that import content from another Web site without changing the URL, a practice known as “framing.” But it’s hard to see much difference. Either way, when you’re reading a linked page, you may still be “at” awesomestuff.com, as clicking the back button on your browser can instantly confirm. Effectively, awesomestuff.com has stolen content from newyorker.com, just as the compiler of “Most Thoughtful Essays” stole content from me. The folks at awesomestuff.com and their V. C. backers are attracting traffic to their Web site, with its many banner ads for awesome stuff, using material created by other people.
An enormous amount of Web business is conducted in this manner. Most Web users don’t feel indignant about it. On the contrary, most Web users would feel that their rights had been violated if links like this were prohibited. Something that is almost universally condemned when it happens in the medium of print is considered to be just how digital media work. Awesomestuff.com might even argue that no one is harmed by the link—that it is doing me and The New Yorker a favor by increasing our article’s readership at no cost to us. But the publisher of “Most Thoughtful Essays” could say the same thing, and the court would be unmoved.
This almost instinctive distinction between what is proper in the analog realm and what is proper in the digital realm is at the center of a global debate about the state of copyright law. Statutes protecting copyright have never been stricter; at the same time, every minute of every day, millions of people are making or using copies of material—texts, sounds, and images—that they didn’t create. According to an organization called Tru Optik, as many as ten billion files, including movies, television shows, and games, were downloaded in the second quarter of this year. Tru Optik estimates that approximately ninety-four per cent of those downloads were illegal. The law seems to be completely out of whack with the technology.
The point of Peter Baldwin’s fascinating and learned (and also repetitive and disorganized) “The Copyright Wars” (Princeton) is that the dispute between analog-era and digital-era notions of copyright is simply the latest installment of an argument that goes all the way back to the Statute of Anne. The argument is not really about technology, although major technological changes tend to bring it back to life. It’s about the reason for creating a right to make copies in the first place.
In the United States, the reason is stated in the Constitution. Article I gives Congress 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.” The Copyright Act of 1790 set the length of copyright at fourteen years, renewable for another fourteen, after which the work falls into the public domain.
A right is just the flip side of a prohibition. The thinking behind Article I is that prohibiting people from copying and selling someone else’s original work is a way of encouraging the writing of useful or entertaining books, just as awarding a patent is a way of encouraging the invention of useful or enjoyable things. The prohibition operates as an incentive for the protected party. For a limited period—fourteen or twenty-eight years—authors get to enjoy the profits from sales of their books, and this prospect of reward induces people to write.
But Article I makes it clear that the ultimate beneficiary of books and inventions is the public. Copyrights are granted and patents are issued in order “to promote the Progress of Science and useful Arts.” This is why the Constitution dictates a limit on the right to make copies. After the term of protection expires, a work cannot be copyrighted again. It becomes a public good. It is thrown into the open market, which allows it to be cheaply reproduced, and this speeds the distribution of knowledge. “Intellectual property is a frail gondola that ferries innovation from the private to the public sphere, from the genius to the commons,” as Paul K. Saint-Amour, one of the leading literary scholars of copyright, elegantly describes it.
Drugs make a good analogy (as they so often do). A pharmaceutical company that develops a new medication is rewarded for its investment in R. & D. by the right to market the medication exclusively for a limited period of time. When that period expires, other pharmaceutical companies can manufacture and sell knockoff versions. These generic meds are usually far cheaper than the original, brand-name drug, and the result is an improvement in the public’s health.
The United States also found another, and even better, way to speed the distribution of knowledge, and that was not to extend copyright to foreign works. This was not uncommon in the nineteenth century, but the United States was particularly slow to reform the practice. Until 1891, a book published elsewhere could be legally copied and sold here without payment to the author or to the original publisher. “It seems to be their opinion that a free and independent American citizen ought not to be robbed of his right of robbing somebody else,” Arthur Sullivan, of Gilbert and Sullivan, complained. Charles Dickens campaigned aggressively against the evils of piracy, to no avail. The loss to British authors was not small. The United States is the world’s largest consumer of books. Baldwin says that by the late nineteenth century the American book market was twice the size of Britain’s.
The term of copyright has been expanded in the United States periodically since 1790. In 1831, copyright was made renewable for up to forty-two years from the time of publication; in 1909, for up to fifty-six years. In 1976, the law was rewritten to protect copyright for fifty years after the death of the author, and formalities, like requiring authors to register their copyright, were relaxed. This means that anything and everything is now copyrighted. If you made it, no matter how trivial, you own it, and if someone else copies it you can sue.
Finally, in 1998, protection was increased to life plus seventy years, thanks to the passage of what is known as the Sonny Bono Copyright Term Extension Act, named for the late, great songster turned California congressman. (Works with corporate authorship are protected for a hundred and twenty years after creation or ninety-five years after publication, whichever is first.) This means that copies—and, if Bonnie Schiffman prevails in her lawsuit, imitations—of Schiffman’s picture of Rod Stewart’s head, which is already thirty-three years old, may be illegal until some time in the twenty-second century.
The Bono Act also altered the term for works still in copyright that were published between 1923 and 1978, increasing it to ninety-five years from the date of publication. (In 1993, the European Union had gone even farther, reviving lapsed copyrights of works by authors who died between 1925 and 1944, as a way of compensating rights holders for sales lost during the Second World War.) In 2003, the Supreme Court, in Eldred v. Ashcroft, rejected a challenge to the constitutionality of this additional award to works already under copyright. The Constitution was explicit in granting Congress the power to set the term of copyright, Justice Ruth Bader Ginsburg wrote, provided that term was a limited one. The Constitution did not define what “limited” meant, and it was not the Supreme Court’s business to decide whether Congress had exercised its power wisely.
As a result of the Bono Act, you can publish new English translations of the first four volumes of Proust’s “In Search of Lost Time,” all of which appeared before Proust’s death, in 1922, but the copyright for English translations of the last three will continue to be owned by Random House until 2019. Although James Joyce’s “Finnegans Wake” has been in the public domain in Europe since the end of 2011 (seventy years after Joyce died), it will remain under copyright in this country until the end of 2034 (ninety-five years after it was published).
On another stratum of economic value, Mickey Mouse, who made his début in 1928, in an animated picture called “Steamboat Willie,” won’t come out of copyright until 2024. The Disney Company, which owns rights to a number of valuable but, by the standards of the entertainment industry, ancient cartoon characters, lobbied hard to get the Bono Act passed.
As it happens, Mickey Mouse owes his very existence to a copyright issue. In 1927, Walt Disney created a character called Oswald the Lucky Rabbit and was engaged to create a series of animated shorts featuring the character for Universal Studios. During a dispute over compensation, he discovered that Universal owned the rights to Oswald, and that the studio could fire him and make Oswald movies without him. He vowed never to give up his rights again, and created Mickey Mouse.
Courts have been receptive, as well, to claims of “subconscious infringement.” Even people who are not pirates can be made to cease and desist, or to pay damages. In 1976, an American court found that George Harrison’s “My Sweet Lord” had infringed the copyright on “He’s So Fine, ” by the Chiffons, which was a hit in 1963. One critic went so far as to observe that the refrain “Hare Krishna” essentially copied the refrain “Doo-lang,” in “He’s So Fine.” Harrison ended up paying five hundred and eighty-seven thousand dollars.
Baldwin joins Saint-Amour, the law professors Lawrence Lessig, Jeanne Fromer, and Robert Spoo, and the copyright lawyer William Patry in believing that, Internet or no Internet, the present level of copyright protection is excessive. By the time most works fall into the public domain, they have lost virtually all their use value. If the public domain is filled with items like hundred-year-old images of the back of Rod Stewart’s head, the public good will suffer. The commons will become your great-grandparents’ attic.
As it is, few creations outlive their creators. Of the 187,280 books published between 1927 and 1946, only 2.3 per cent were still in print in 2002. But, since there is no “use it or lose it” provision in copyright law, they are all still under copyright today. Patry, in his recent book, “How to Fix Copyright,” notes that ninety-five per cent of Motown recordings are no longer available. Nevertheless, you can’t cover or imitate or even sample them without paying a licensing fee—despite the fact that your work is not competing in the marketplace with the original, since the original is no longer for sale. (U.S. law does not protect recorded music made before 1972, but state laws can apply—as the nineteen-sixties group the Turtles are claiming in a lawsuit, for more than a hundred million dollars, against Sirius XM.)
In the case of Motown, at least you know whom to call. In the case of many books and photographs, the rights holders are unknown; in other cases, it’s expensive to track down the heirs or the legatees or the firms, possibly no longer in existence, to whom the copyright belongs. And so, for fear of being sued and having their work pulped or otherwise erased from the universe, people avoid the risk. Patry says that the BBC has a million hours of broadcasts in its archives that cannot be used, because no one knows who holds the rights.
Before the Internet, the social cost of this obstacle was minimal. Only a few people had the time and the inclination to travel to where they could see or listen to archived broadcasts. But today, when everything can be made available to the entire world at minimal expense, it seems absurd to hold enormous amounts of content hostage to the threat of legal action from the odd descendant. “That a vast existing cultural patrimony, already paid for and amortized, sits locked behind legal walls, hostage to outmoded notions of property, when at the flick of a switch it could belong to all humanity—that is little short of grotesque, ” Baldwin concludes. Yet the odd descendant has the law on her side. She has the power to pulp.
What’s the rationale for maximizing protection? The idea of a public domain belongs to the theory that individual rights are intended to promote public goods. The First Amendment protects individual expression, for example, because it’s in society’s best interest to have a robust debate—not because each person has a right to say what he or she thinks simply by virtue of being human. So the right to make copies was imagined by the Framers as a way to encourage the writing of books by individuals for the good of an educated citizenry. But, if you are a natural-rights person and you think that individual rights are inalienable, then you don’t recognize the priority of the public domain. You think that society has no claim on works created by individuals. The right to control one’s own expressions, to sell them or not, to alter them or not, is not a political right. It’s a moral right, and it cannot be legislated away.
Moral rights give authors control over not just the reproducibility but the integrity of their creations. This control can extend beyond the limits of copyright protection—as in cases where the author has assigned the copyright to someone else, like a publisher, or when the term of copyright has elapsed. Moral right is a recognized legal concept in Europe. Courts there have held, for example, that although the buyer of a work of art may destroy it, he or she cannot deface or otherwise alter it. That right belongs to the artist in perpetuity.
Samuel Beckett’s restrictions on the staging of his plays is a well-known example of the exercise of copyright as a moral right. Beckett and his estate consistently refused permission to mount productions of his work—“Endgame” in an abandoned subway station is the classic case, but there are many others—unless Beckett’s stage directions were complied with literally. The refusal was not based on any economic consideration; these performances were not copies competing with the originals. It was based on the right of the playwright to protect the integrity of his plays.
A natural-rights person would ask why the law shouldn’t treat a book the same way it treats any form of real property. If you own a house or a piece of land, the state sets no time limit on your right to use it. A family can live off the income from real estate or from a trust fund in perpetuity. Why can’t Ernest Hemingway’s heirs live off the income from his books? Is it fair for people who had no relation to Ernest Hemingway to someday make money selling those books? Should they be able to abridge them, or change the endings, with impunity?
These are the two philosophical rationales for copyright protection. Baldwin calls the limited-term, public-domain conception the Anglo-American conception and the much stricter real-property, moral-rights conception the European conception. The differences began emerging toward the end of the nineteenth century, with the founding of the Berne Union, which was created to regularize international copyright laws. Baldwin attributes the Continental conception of copyright as a moral right to the desire of countries like France and Germany to assert their cultural superiority. Protecting the rights of artists was imagined as a way of rejecting the commercialization and commodification of culture that European countries thought less restrictive copyright laws were designed to facilitate. Europeans thought, in effect, that Americans wanted great literature to fall into the public domain so they could make cheesy movies from it.
Britain joined the Berne Union when it was founded, although, Baldwin says, grudgingly. The United States did not join until 1989. Baldwin thinks that this, along with the adoption, in the nineteen-nineties, of a number of additional regulations stiffening copyright protection, including the Bono Act, marked the triumph of the European model. “Copyright’s evolution is often told as a story of American cultural hegemony,” he says. “In fact, the opposite is more plausible.”
At bottom, the argument about copyright is not really a philosophical argument. It’s a battle between interest groups. Baldwin points this out—although, like everyone who takes a position on copyright, he also thinks that his is the philosophically defensible one. In the copyright wars, there are many sets of opposing stakeholders. Much litigation involves corporate entities, which have the financial resources to pursue cases through the courts. In these copyright battles, the main antagonists are the businesses that own copyrighted goods and the businesses that don’t.
Let’s call the first type of business Hollywood and the second type Silicon Valley. Hollywood, along with the music industry and the publishing industry, which are the other major analog-era corporate interests, makes money by producing and distributing content. Silicon Valley makes money by aggregating other people’s content. Hollywood fears pirates; Silicon Valley fears paywalls. Silicon Valley accuses Hollywood of “monopoly” and “artificial scarcity,” and talks about the democracy of the Internet. Hollywood accuses Silicon Valley of “free riding” and “contributory infringement, ” and talks about protecting the dignity of the artist. But each side is only trying to defend its business model.
Freelancers versus salaried content creators is another interest-group antagonism. Most of the people who are critical of the length of copyright protection today are academics. (Patry is an exception, but he’s the senior copyright counsel at Google.) This is probably not unrelated to the fact that academics have almost no financial stake in copyright. The research and writing they do is part of their job as employees of universities, or as the recipients of external, usually taxpayer supported grants. They don’t depend on sales to survive.
Freelancers, on the other hand, are unhappy with what they regard as the erosion of their right to control copying, which they see, for example, in the legally sanctioned practice of posting “snippets” on sites like Amazon, iTunes, and Google Books. Musicians and other artists tend to regard the Internet as a place where anything goes, an ungovernable Barbary Coast. On the Web, the general rule—known as a “take-down notice”—is that you can post almost anything as long as you take it down when the rights holder complains. No harm, no foul. There are some technical preconditions that the poster has to meet to earn the protection, but this does not seem to freelancers to be a very effective way to discourage copying.
Academics oppose copyright protection for another reason as well. They want access to the research in their fields. In the case of scientific research, much of that access is controlled by giant media companies like Springer, Elsevier, and Wiley. These companies publish academic journals and then charge huge subscription fees to the libraries of the universities that supported the very work they are selling back to them. Baldwin calls it “a notorious rentseeking boondoggle,” and many academics have organized to find ways to circumvent it—by starting new journals, or by putting their work online in disregard for the copyright claims of Springer and the rest. It was for trying to open access to the digital compiler of academic journals JSTOR that Aaron Swartz was arrested at M.I.T.
As the Constitution states, the ultimate purpose of copyright protection is the spread of knowledge. A lot of the debate over copyright is carried on using the examples of famous novels and popular songs (as in this article). But people aren’t going to stop writing and reading novels, or making and listening to music. The analog-era industries will find—they are already in the process of finding—a sounder business model. For the rest of us, less is at risk. The species can survive without cheaper copies of Mickey Mouse cartoons and “Finnegans Wake.” It is hard to write these words, but the species can probably survive without Motown.
Copyright law does not completely shut down the circulation of cultural goods. It protects only expression. Facts, ideas, systems, procedures, methods of operation, and many compilations of data are denied protection. The 1976 copyright act made statutorily explicit something that has always been part of the common law of copyright: the doctrine of fair use. Most copyright litigations are essentially disputes over the proper definition of this concept. In the United States, the meaning of fair use is vague, which is good, because courts can judge each case in its own context, but also bad, because guessing wrong can be very expensive.
Contrary to popular belief, fair use does not dictate a maximum number of copyrighted words that you can quote or lines that you can reprint. Parody is protected under fair use, and so are many educational uses of copyrighted material. The key concept is “transformative copying.” You can use someone else’s creation if the purpose is to make something new with it.
The problem is that the judicial record is inconsistent. The law on musical sampling is draconian, but restrictions on the right to quote from unpublished works (like J. D. Salinger’s letters) have been relaxed. Judicial unpredictability makes for legal anxiety. Professors who copy material for use in class are frequently uncertain whether or not they need to seek permission, which almost always entails paying a fee. If they ask their college’s general counsel, they will be told to pay the fee. Any lawyer would give the same answer. Paying a small fee (which, in the case of educational materials, can usually be passed along to the students) is a lot cheaper than facing a lawsuit, even one that you should win.
Lawyers remember that ASCAP once demanded that the Girl Scouts pay royalties for copyrighted songs sung around the campfire, and that Warner Bros., the producer of “Casablanca,” went into action when it learned that the Marx Brothers were making a movie called “A Night in Casablanca.” (Groucho, in turn, wondered whether Warner Bros. had the rights to the word “brothers.”) You think these laws don’t affect you? Warner/Chappell Music claims to own the copyright to “Happy Birthday to You.” So far, in cases like Eldred, the Supreme Court has leaned to the side of copyright owners. But the Court always takes a while to catch up with the times, so it seems likely that the law will eventually change.
The most fundamental opposition in the copyright wars is between creators and consumers. In parliamentary debates in the nineteenth century, Thomas Macaulay called copyright “a tax on readers for the purpose of giving a bounty to writers.” Creators want to sell high, and consumers want to buy low. Almost the minute a popular book falls into the public domain, cheap editions flood the market. A virtual minute after that, a digital edition becomes available online for nothing. This is what Congress had in mind when, in 1790, it restricted copyright to fourteen years with a single term of renewal. It wanted to speed the availability of inexpensive copies.
Freelance cultural producers are only weakly organized, in groups like the Authors Guild and the American Federation of Musicians. That’s one reason they are better off assigning copyright to a corporate entity, which has the muscle to protect it. Cultural consumers are not organized at all. They can speak only through their elected representatives, but most of those people will be listening to the money—to the lobbyists for the content industries, new and old, as those industries search for more reliable ways to squeeze profits from the awesome stuff that human beings have created.