The Windmill’s Reply

Posted on Categories Intellectual Property Law

Abandoned Mill of SaintesEd Fallone’s fascinating post below on the Catcher in the Rye suit, now being briefed in the Second Circuit, is worth reading. I was particularly interested in Ed’s discussion of Cervantes’s criticism of an unauthorized sequel to Don Quixote. Copyright scholarship occasionally mentions that Cervantes rushed Part II of Don Quixote into print because of pressure from a competitor, but I hadn’t heard the details before. Cervantes’s reaction to the implicitly critical sequel does seem like an important moment in the development of the idea of the fictional author as master of his or her creation.

However, I also want to offer a contrary view on a couple of points that Ed raises. First, Ed concludes that copyright’s commercialization of creative works is a problem. One solution, Ed proposes, is to eliminate copyright protection for literary characters. I disagree with both sides of this equation. There’s an emerging problem with copyright law, but it’s not commercialization of creativity. Commercialization of creativity is the entire reason copyright law exists. And eliminating copyright protection for sequels across the board would create far more problems than it would solve.

First, the nature of the problem. As Ed explains, there’s a tradeoff involved in the copyright system. One of the purposes of copyright (some would say the only purpose) is to incentivize the creation of new works. Copyright does this by creating a property right in the works that result. There are some costs, however. One cost is that there will be some works that would have been created and distributed without any copyright protection at all, and yet public access to those works may be restricted. And for those works that would not have been created or distributed but for copyright or some other means of public support, there’s an offset against the benefit—namely, that not all uses of the work will be possible for the duration of the copyright (which is now extremely long).

Ed views the costs of this tradeoff as particularly high. He believes that “[e]very act of creation should be viewed as a gift from one person to all people.” In essence, then, copyright makes us pay for gifts. “It is only if we view the act of creation as a ‘sale’ from the author to the rest of us that it makes sense to allow the author to place conditions on the use of his creation.” That’s true. It’s also the entire point of having copyright in the first place. The copyright system rejects the notion that every act of creation is a gift. It creates a market for acts of creation in order to allow large numbers of small benefactors to pay for works ex post as opposed to ex ante. This system might seem onerous now, but it’s worth comparing it to the system it replaced: support for artists from wealthy patrons. A legal system that gives the option of support from a broader array of people allows a greater number and diversity of expensive works to be created.

Of course, this doesn’t tell us where to draw the line between acts that infringe on the owner’s copyright and acts that don’t, and Ed is not alone in proposing that the line should be drawn particularly close to verbatim copying. But the idea that filthy lucre somehow sullies the creative enterprise doesn’t get us all the way there.

Nor do I think Ed’s proposed solution is workable. Character copyright is an incredibly vexing issue. Copyright is supposed to vest in works, and characters are not works, they are pieces of works—sometimes pieces of several works in which the character has subtly evolved from one work to the next. When confronted by one of these multi-work characters, it’s difficult to say what exactly is being protected, which has perhaps led courts to essentially throw up their hands when considering such questions. It has also, I think, led Congress to shy away from allowing the first versions of any modern cultural icons from entering the public domain. No one knows what would happen.

But the Salinger case is not just about the use of a single character in a new work, it’s about a sequel—a classic example of a derivative work. (That’s assuming it’s not a parody, in which case it would probably be a fair use.) The question here is much simpler than the extent to which characters should be separately protected. The question is whether there should be any exclusive right to prepare derivative works at all.

It’s pretty clear that the ability to control sequels and adaptations is part of the incentive package for modern creators of works. Hollywood studios somewhat notoriously look for, at least in certain genres, scripts that will generate a whole series of films rather than just one. Many authors intend to write an entire series of books, or sell the film or television rights, or both. J.K. Rowling was in part spurred on to complete the first Harry Potter because she knew she had six more behind it if it did well. Songwriters expect revenues from anyone who records their song, not just the first person.

Of course, to some extent this is self-reinforcing. Authors expect these revenues today in part because they’ve gotten these revenues in the past. It’s worth noting that patents have a different system: a patent owner does not own all follow-on inventions. Copyright’s different take on follow-on works I think reflects a recognition that the authors of fictional works create not simply single works, but entire universes. Copyright over sequels and adaptations is part of the reward for creating an attractive universe in the first place. Works without their own universes, such as music, databases, or histories, enjoy much less expansive derivative works rights. Your history of the First Battle of Bull Run gives you no rights to a history of the Second Battle of Bull Run.

This policy of awarding exclusive rights in follow-on works to authors actually works to the advantage of smaller authors and distributors. Without it, larger players could simply wait to see what books or movies seemed to do well in small markets, then flood much larger markets with sequels and adaptations. Indeed, they would have an incentive to do that rather than develop or buy their own works; in essence, small players would wind up doing free market-testing. That’s hardly fair.

It’s true that J.D. Salinger is unlikely to be hurt in this way from “J.D. California’s” sequel. No one is likely to consider the sequel authoritative in such a way that it would compete with an actual Salinger sequel. Which leads to another point: this case is an odd one for defending the derivative works right, because Salinger is hardly a typical author. Salinger seems to be fighting not to preserve his ability to write a sequel, but to preserve the option of having no sequel at all. But the justification for derivative works rights is that most authors are not going to be like Salinger. Most are going to write sequels, or at the very least authorize others to write sequels, when their universes catch on. Sure, there’s a risk of curmudgeons like Salinger, but it’s a low risk, one worth bearing in order to keep the rule (exclusive rights in derivative works) relatively simple.

That’s not to say there is no problem with modern copyright law. But it’s not commodification or the expansion of copyright by large media companies into fair use. Some prominent copyright critics share Ed’s concern that the creativity of ordinary individuals is somehow stifling the creativity of ordinary individuals. But I think the evidence is to the contrary. There’s an explosion online and offline of users making their own web pages, videos, recordings, poems, games, fiction, artwork, and what have you, and distributing it to anyone who’s interested. I think this points at what the problem is: it’s not expansion, it’s collapse. The boundary between individual users and professional publishers has crumbled, forcing both together like some madcap variation on the old Reese’s Peanut Butter Cup commercials. (“Your individual expression is in my exclusive rights! Your exclusive rights are in my individual expression!”) The copyright universe is imploding. The solution will no doubt involve some reconceptualization of copyright law. But simply paring back on owners’ rights won’t do the trick.

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