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AUDIO VERSION
Los Angeles
Times, July 23, 2006
Just
Whose Idea Is It Anyway?
In
the new "Age of Copyright," dynasties are founded on cartoon characters,
lawyers play extreme sports, and we all break the law. It's never been
easier to stake a creative claim or jump one.
By Marc Porter Zasada
Special to The Times
LIKE SO MANY other people in America, I'm
working on a groundbreaking book. Never mind the precise subject, but
trust me: I've identified a narrow crack on the social science shelf,
accessed a number of little-known theories, and I plan to have my moment
in the sun. OK, few of the actual ideas in this book will be
original. I mean, how could I hope to have an original idea? Not with
150 million-plus blogs churning out ideas 24/7, not with 2.5
billion-plus Internet sites to consult, not with 1,000,000-plus other
groundbreaking books of all kinds published worldwide each year.
By now, however, I've read the relevant names, I've cut and pasted the
finest bon mots and I've sorted everything into neat folders on
my hard drive ready for, as they say, "repurposing." My job will be to
weave, redact and attribute. And if, in the end, I manage to link other
people's thoughts in a sufficiently clever fashion, their ideas may
eventually become mine at least in the mind of the public.
Still, I'm troubled. Shall I really be the "author" of this work? Can I
claim to be an "authority"? Should I worry about other people's
lawyers?
To be certain on this last point, I've invited my friend David Nimmer to
lunch at a local bistro pricey, but far cheaper than his hourly fee.
David is a noted copyright attorney and scion of a legal dynasty. His
late father, Melville B. Nimmer, wrote the standard text, "Nimmer on
Copyright," and David keeps up the revised editions of the 10 thick
volumes, which occupy a considerable shelf in his high-tech office at
Irell & Manella in Century City. David has represented a host of
clients, among them the Worldwide Church of God and the Walt Disney Co.,
a bingo card programmer and Martha Graham's heir. He even represented
Napster for a time. Until rebuffed by the Supreme Court last month, he
represented the granddaughter of A.A. Milne in her efforts to liberate
Winnie the Pooh perhaps the world's most profitable intellectual
property from the chubby bear's various handlers.
Melville B. Nimmer once represented Disney on the same issue, and to
some in the copyright world, David is known simply as "the son."
Unlike most of us, my friend often has the luxury of choosing battles
for his own enjoyment, and his articles sometimes have a bemused
quality: " 'Fairest of Them All' and Other Fairy Tales of Fair Use" or
"Brains and Other Paraphernalia of the Digital Age." At 51, sitting
behind a plate of pasta, the current Nimmer is a comfortable-looking man
with bushy eyebrows and a deceptive smile. He often lectures at UCLA,
and at first, to your possible peril, you might mistake him for a pure
academic.
"Are not all literary works, in a sense, derived?" he asks after
quizzing me about my methods. "Ideas, of course, cannot be copyrighted,
only the tangible presentation of those ideas. You just need to present
them in a new way."
Already, I'm figuring how I will reorder successions of thought and
invert graphs of data. My efforts may not be quite as good as the
original, but I swear the result will demonstrate originality. More
important, if I do manage to create something new, I will own a little
piece of the future in fact, more and more of the future, thanks to
Congress, which keeps extending intellectual property rights and
establishing new intellectual dynasties.
The latest extension, accomplished thanks to lobbying by folks including
Disney, will allow my heirs to own my words, images or music for 70
years after I die, so together we could easily hold onto something for a
century, and some unborn grandchild could join that rapidly growing
class of aristocracy known as the "copyright heir."
Cold, hard copyrighted cash
Not everyone seems to have noticed, but it's clear we recently
zipped past the "information economy" and straight into the "copyright
economy." It's no longer about access to information everyone has
access. Now it's about ownership of the characters, stories, tunes,
trademarks, software and other ephemera of our daily lives. If serfdom
returns to L.A., we won't end up as
peons working on other people's landed estates no, the great dynasties
of the future may be built on cartoon characters.
Not surprisingly, thanks to this little shift in the economy, a new
sport has arisen in the land. It's called "extreme copyright," and the
people who play this game are the ones who have me worried.
In extreme copyright, you try to push the limits of what intellectual
property can be owned and controlled or you try to penalize those who
seem to have pushed the envelope a little too far. For example, not long
ago, the family of Martin Luther King Jr. took CBS to court when the
network used a tape it had made of King's famous "I Have a Dream" speech
in a documentary (the family prevailed). And a government-authorized
publisher tried to copyright official court opinions by arguing that it
had introduced "original pagination" to the otherwise completely public
documents which must be cited every day by judges and lawyers.
On the trademark side, people try to register phrases such as "fair and
balanced" or protect a single word, such as "Spike." Marvel and DC
Comics may sue you if you misuse the word "superhero," which they yes
trademarked in 1979.
These days, if you're a Hollywood filmmaker and you shoot a passionate
love scene in an art gallery and pan past a sculptural assemblage of
tuna cans, you'd better get the permission of the artist, and probably
StarKist (sorry, make that StarKistฎ) as well. Big studios employ whole
teams to make sure such accidents don't happen.
Meanwhile, journalists hunger to find derived language in the work of
budding novelists. Scandal websites expose lifted phrases in the work of
journalists. Computers search pop music for recycled phrases. And people
who write little-known books sue when their ideas enter the culture in
more popular books.
Also out on the playing field, one now finds anti-copyright activists,
who launch legal broadsides, conferences, articles in Wired magazine and
open-source software. They worry that, thanks to aggressive lawyers,
copyright is being used less and less to encourage creative work
and more and more as a means to discourage it. They oppose the
unlimited expansion of copyright protection with a freewheeling
concept called "copyleft," and they argue for a different kind of
intellectual progress, the kind represented by efforts similar to those
in my planned book: in essence, the right, even the responsibility
to copy.
"
We have to recognize that people who are not powerful should have the
right to play with the cultural signs around them," says activist Siva
Vaidhyanathan in a published interview. "We shouldn't lock up
expressions, symbols and information and assign [them] to corporations
and governments without a full and fair examination and justification."
It's an old-fashioned idea.
Creativity unleashed
Once upon a time, originality of any kind was considered more a vice
than a virtue and certainly no way to start a dynasty. No one cared if
medieval frescoes reflected one another like mirrors, and gargoyles on
cathedrals looked about the same. The gargoyle makers never showed up
with their attorneys, and critics didn't wail when Chaucer stole nearly
all his tales. Certainly no one paused to wonder if he would be sued
when he heard a snatch of music and copied it out for his friends
by
whatever means available.
"The word 'author' does derive from the word 'authority,' " notes Nimmer,
"and once upon a time, every Joe with a quill and parchment did not try
to write. Once upon a time, few even ventured an opinion unless it
repeated the authoritative ideas of his masters. Not only was a man like
Homer a collector of past traditions as opposed to an innovator," Nimmer
says over dessert, "but the same sensibility lasted for many centuries.
Shakespeare was expected to plagiarize."
Only somewhere between the Renaissance and the Romantic era did our
notion of the artist as an "autonomous creative genius" arise, and this
potent idea helped inspire the English Copyright Act of 1709. It was an
important advance in civilization, paving the way for people not only to
earn a proper living from creative endeavors but to build whole
industries on creative work.
You can trace Hollywood, along with
our new Age of Copyright, directly to the days of Beethoven, Shelley and
Keats. And every day, quite sensible copyrights are established by
people conjuring up, say, detectives for detective novel franchises.
Under the U.S. Copyright Act of 1976, you don't even have to register
your character: Just by putting pen to paper or finger to keyboard, you
may own the next Inspector Clouseau. If you do it first, you become the
Author with a capital A.
Still, our romantic obsession with authorship has continued to inflate
until every redactor, ripper, rapper and blogger now can claim to be
creating protectable "original work" even while being threatened by
suits from those whose work they may be cutting and pasting.
This leads to the strangest paradox: As Vaidhyanathan notes on his
website, "We have generated a situation in which it's harder than ever
to make legitimate use of information technology and copyrighted
products and easier than ever to make illegitimate use of cultural
products."
Errant, and easy, disregard
While chatting with Nimmer, I realize that most of us have probably
violated the 1976 Act or the 1998 Digital Millennium Copyright Act every
day of our lives and never mind the stuff you photocopy for friends,
the photos you clip from Web galleries or the many blogs you quote in
your blog. No, the law gets way more picky than that.
Did you know, for example, that if your friend Jasmine sends you a
private e-mail with an original coinage, let's say, "Our fortunes are
blessed with undeserved coincidence," and you use that in your new
investor PowerPoint show, you have technically violated her copyright?
Or if she posts an ad for a Grecian urn on EBay, and you paste her
language into your own ad for your own antiquity, she might reasonably
sue you (as long as she did not, in fact, copy her lingo from the poem
by Keats).
But if you are breakfasting with said Jasmine and, under the undue
influence of a double cappuccino, she discusses the concept for a new
miniseries about the LAPD ("White & Black & Blue") that she has not
yet written down, you should feel free to use her plot with impunity
friendship be damned. (Although you should be careful about using that
"WBB" title; I'm pretty sure I heard it somewhere before.)
Some of these mysteries transcend the legal: Can one accidentally become
an author? In a time of postmodern art, do our doodles deserve
copyright? Our spilled milk? Certainly each spill is "original."
Over lunch, I tell David that when I browse the Web, I picture a vast,
exploding ball of copyrightable stuff important, unimportant and
downright meaningless expanding like the big bang itself into the
cosmos and leaving less and less room for, well, originality. (Or did
David make that observation, and I'm merely repeating his words? In any
case, I'm the first to get it down.)
Pushing aside his plate, my friend smoothes a proverbial napkin and
draws a pyramid representing all the varieties of written works covered
in the Copyright Act of 1976. At the top he writes "Celebrated," meaning
works by celebrated authors. Beneath this he writes "Quality Works,"
then "Mediocre, but Finished Products." Below these he writes "Catalogs,
Billboards, Instruction Sheets, Packaging Labels, Etc."
And he quotes one of his own more obscure papers: "Down here near the
bottom of the pyramid," he says, "fall such matters as a 'Memorandum to
All Personnel Regarding Procedures to Be Followed During Friday's Fire
Drill'; an Internet posting seeking information from fellow denizens of
the Britney Spears website; the sign posted on the telephone pole
describing and seeking the return of a lost cat; and countless other
such ephemera. On reflection, you realize this category inevitably
comprises even more items than all the rest of the pyramid combined"
and yes, all of them are subject to copyright.
"At this point," he continues, deadpan, "one is tempted to conclude that
we have reached the end of the copyright line. But that conclusion would
be entirely erroneous." At the base of the pyramid he now writes,
"Doodles, marginalia, kid drawings, and etc."
It may be hard to imagine a lawsuit arising from your child's drawing of
a UFO, now posted on your refrigerator, but under the 1976 law
(otherwise apparently known as the Nimmer Full Employment Act), it might
be possible:
"Your honor, this is a highly original conception of a UFO."
Indeed, the U.S. Congress once discussed the potential copyright
liability of a janitor cleaning up after a kindergarten class.
Unlike most of us, the law takes no interest in where a work falls on
the pyramid whether high or low although Nimmer argues that the law
should be amended at least to require the intention of creating a new
work. According to the heir and copyright owner of "Nimmer on
Copyright," you shouldn't have to worry about copying someone's spilled
milk, unless you're spilling it on purpose to plagiarize an abstract
expressionist from the 1950s.
Sagging under its own weight
At last I ask my friend if the vast proliferation of copyrightable
material, along with the extreme ease of creating, destroying and
copying it, doesn't bring a kind of absurdity to the whole system an
"Alice in Wonderland" factor that threatens the whole notion of
copyright in the long run. I mean, now that blogs copy blogs endlessly,
and all of us cut and paste our way through our daily lives, doesn't the
law of supply and demand begin to operate? Won't the modern glut of
authorship eventually cheapen the name "author" and all creative work?
He has no answer to this question, but it does seem to have brought us
back around to my book.
"Right now, my friend," he says, "you feel guilty for repeating the
ideas of others, but that's only because you're influenced by that
Romantic idea of individual genius and protected, 'original art.' Even
if you do not contribute a single new idea to your field, it will be
your idea to bring together all these other ideas. And the presentation
of the whole will be copyrightable as an original work. That will be
your contribution to civilization. At first blush, I'd say your
technique as a redactor is not only ethical but right in the historical
mainstream."
"You mean," I say, "it may be Homeric?"
David lifts his eyebrows with a hint of irony, but I convince myself he
must be right. He is, after all, an expert. In any case, as I gulp the
last of my coffee and pay the bill, I resolve that once my book is
published, I shall proudly wear that new title of "author."
Zasada's weekly commentary on modern life
in L.A., "The Urban Man," airs Monday evenings on KCRW radio.
* * *
SIDEBAR: An ever-shrinking public domain
Copyright protections gobble up more and more matter and hold it ever
longer -- maybe for a lifetime or two.
IT'S still not possible to copyright an idea, only the creative
expression of that idea. But worldwide, corporations are trying to
expand protections beyond creative works to other intangibles, such as
the facts and figures held in computer databases. Meanwhile, Congress
keeps extending the copyright productions that already exist.
The authors of the U.S. Constitution mandated that Congress should grant
copyright protection to authors for only a limited time, with the
assumption that intellectual works would eventually belong to the
public. No one then imagined the growth of multigenerational industries
built on a single story or a set of cartoon characters that had become
essential to the cultural life of the nation.
Originally, under British law, American Colonial authors could protect
their work for only 14 years. By 1831, Congress had provided a 28-year
term renewable for an additional 14 years. And in 1909 (thanks partly to
lobbying by author Mark Twain), it expanded the extension to 28 years,
for a total of 56 years.
Then, in 1976, along with offering copyright protection to virtually
every kind of intellectual production, Congress greatly expanded the
term to the life of the author plus 50 years, thus making creative work
a far more formidable "property." Come 1998, Rep. Sonny Bono's widow,
Mary Bono (who was serving out the balance of his term), persuaded
Congress to lengthen U.S. copyright to 70 years past the death of the
author matching European laws. The bill had been heavily lobbied by
Disney, eager to protect Mickey Mouse and other foundations of its
corporate life. Among its provisions, the Digital Millennium Copyright
Act of that same year provided new "fences" for intellectual property by
making it a crime to provide any means of breaking copy protections on
media such as CDs and DVDs.
Today, as the game of "extreme copyright" becomes ever more intense,
Congress and the courts wrestle with increasingly complex and nearly
metaphysical questions such as the responsibility of an author who
"subconsciously" imitates the work of another, and the rights to "orphan
works" for whom a proprietor cannot be identified.
Many of the hottest controversies turn on questions of "fair use," under
which newspapers, scholars and others are allowed to quote small
portions of works without permission. Just now, publishers are trying to
prevent Google from scanning millions of books into its databases not
so they can be read in their entirety but so that limited phrases can be
searched on the Internet under fair use.
As we move deeper into the Age of Copyright, these questions have become
much more than academic they have become central to our digital lives. |