Like Mike Madison, I noticed Jonathan Galassi’s op-ed in the New York Times on Sunday. Galassi—the president of Farrar, Strauss & Giroux—argues that ebook publishers who republish print books are committing at least a moral wrong by appropriating the work of the print publisher, even if they have the permission of the copyright owner. Mike views this argument, I take it, as one more sign of the “IP apocalypse,” but I have a somewhat different take: I see in Galassi’s op-ed a fascinating old copyright chestnut that has basically (and correctly) gone against Galassi.
The argument goes like this: the naive view of authorship is that authors sit down at their typewriters and churn out complete copyrighted works. But not only is this view incomplete on the input end—as just about everyone recognizes, artists slurp inspiration from all over the place—it’s also incomplete on the output end. Once an author (or a director, or songwriter) finishes a work, all sorts of things happen to it before it reaches the public as a final product, sometimes altering the content of that work substantially. Artists often chafe under the rule of editors, always forcing them to trim out the good stuff, but you can often tell which authors have gotten powerful enough to throw off their editors’ yoke, and not usually in a good way. “Doorstopper” is the term that comes to mind.
Galassi’s argument focuses on the creative nature of all that post-author authorship. And there’s a hidden suggestion in his op-ed—shouldn’t the publisher have some sort of proprietary rights over all the stuff it adds? The ebook publishers can distribute William Styron’s unedited manuscripts if they like, but not the version Random House put out.
As Galassi puts it:
An e-book version of Mr. Styron’s “The Confessions of Nat Turner” will contain more than the author’s original words. It will also comprise Mr. Loomis’s editing, as well as all the labor of copy editing, designing and producing, not to mention marketing and sales, that went into making it a desirable candidate for e-book distribution. Mr. Styron’s books took the form they have, are what they are today, not only because of his remarkable genius but also, as he himself acknowledged, because of the dedicated work of those at Random House.
This raises an interesting theoretical issue for copyright law. Under copyright law, there can be joint authors in a work, who each hold a complete undivided interest in the copyright, just like tenants in common in real property law. But the 1976 Copyright Act does not define “joint authors.” Instead, it defines what a “joint work” is:
A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
Does this mean that everyone who contributes to a work of authorship is a joint author in the work that results? What about editors? Research assistants? Dramaturges? Snake wranglers?
An extreme example of the role editors can play in shaping the final work is Raymond Carver’s early short stories. It now appears that Carver’s famed “minimalist” style was mostly due to the ruthless cutting of his editor, Gordon Lish. (Times Literary Supp.; Boston Globe; Times.) Lish did more than simply take a red pen to Carver’s work, he radically altered the stories, as a side-by-side comparison shows. Is Lish a co-author of Carver’s stories?
The Second Circuit in Childress v. Taylor, authored by Judge Jon Newman, attempted to answer questions like this long ago. According to Judge Newman, the answer is basically “no.” Joint authors have to intend more than the text of the statute seems to require, Newman held; they need to intend to be “joint authors.” That’s “[w]hat distinguishes the writer-editor relationship and the writer-researcher relationship from the true joint author relationship.” And in many cases a good test for what the parties intended is how they described themselves. Lish was an editor, not an author, and so he’s not a “joint author.”
This strikes me as a sensible bright-line rule, at least for industries with some amount of tradition behind them. There are people who get described as authors, and other people who aren’t described as authors. If you’re in the latter camp, the Second Circuit seems to be saying, there’s a way you can still get copyright rights if you want them: you’re “free to bargain for an arrangement that will be recognized as a matter of both copyright and contract law.”
Back to Galassi and the Random House versions of Styron’s works. Random House is a publisher; publishers are not authors. If Random House wanted copyright rights, it should have bargained for them. (I should note, there’s a non-trivial argument that Random House did in fact bargain for them; the case is included in many copyright textbooks as an example of a somewhat unclear “all media” clause.) Although that response might in some circumstances ignore the practical realities of a working relationship, the publisher-author relationship hardly seems like one of them.
Cross-posted at Madisonian.net
Ultimately, I agree with your conclusion, both from a legal perspective and as a policy matter. Just a few things to add…
First, I am a bit concerned that the current joint-authorship rule causes editors who contribute original expression to forfeit the copyright protection they otherwise would have enjoyed to the author. As you know, the bar to copyright protectability is exceedingly low, with Feist requiring only a minimal level of creativity. An editor’s exercise of his/her discretion in making stylistic and even seemingly mechanical syntactical changes utilizes some creative energy, even where the established writers you mention relegate their editors’ roles substantially.
That being said, I still think the (not so) limited monopoly copyright guarantees is not necessary here as a policy matter. Touching upon the balance in copyright between encouraging creative activity and contributing to the public domain, publishers and editors generally speaking already have ample incentive to engage in their work, and denying publishers copyright under the Act’s default provisions does not materially affect this incentive. A market exists for their services to the extent that authors wish to be published in the first place. Publishers will continue their business as long as authors need them and as long as they, the publishers, maintain a reputation as competent in their work. Though denying protection could deter creative activity generally, that the original author gets copyright protection maintains the authorial incentive to create literature, thereby protecting the publishers’ businesses by extension.
As to Galassi’s argument about the labor in editing and publishing, the Supreme Court in Feist affirmatively refused to justify American law under a “sweat of the brow” theory. American copyright law’s purpose, instead, is to furnish the economic incentives unnecessary in these circumstances.
A really interesting and well-written post. (Well edited, too!)