I was sitting in the car today, listening to Johnny Cash's performance of Nine Inch Nails' song “Hurt,” and I got to thinking about how they felt about the development. Clearly, they were not too unhappy, because they made some sort of agreement with Johnny Cash that allowed him to proceed legally. But suppose they weren't Johnny Cash fans? What if they didn't like the way they did it? I tried to imagine if I had written a song, only to have some musician I didn't like perform it—Barbara Streisand, for instance.
Of course, I know what that feels. Because I've had a short play of mine performed, and absolutely butchered. I won't say who did it, although you'd be surprised to know they were the performers because they'd won some sort of a youth theater award, and I won't talk about the stupid script cuts and lurching tempos that turned me off of their version. I watched on the video, and within ten seconds my excitement had drained away like pus siphoning out of a cut wound. Within moments I was empty, and then just mildly sick. I stopped the video there. Within moments I was feeling better, because I told myself that they had so altered the script that they were not in fact performing my play—they were performing a play that happened to have some words I'd written in it.
I'm recording these feelings not because I want to rag on a group of rather earnest young actors who I'm sure have gone on to become very accomplished in their field, be it medicine or law or astrophysics. Instead, I want to reflect on how my feelings intersect law and the economics. Although it is strange to think of 'feelings' as intersecting law and economics, it is in fact the case that both are realms which are almost as emotional as they are rational. And both are connected to these feelings because of how I own my words: they are my property.
Going back to Johnny Cash and Nine Inch Nails: if Nine Inch Nails had truly protested to Johnny Cash's version, they could have said, “We're not going to give you the rights.” And then Johnny Cash's version would be illegal, like Danger Mouse's Grey Album which mixed elements of The Beatles' White Album with Jay Z's Black Album. The Beatles insisted that their property had been 'stolen.' That, of course, was motivated by a different emotion: a desire for compensation. In some contexts we would call that greed, in other contexts we would call that justice—mostly based on the reasonableness of the claim. So in other words, if the Nine Inch Nails wanted to stop Johnny Cash from covering their song, the power was in their hands.
Samuel Beckett, though long dead and buried, has a remarkable talent for controlling his play. He wouldn't tolerate the sort of cuts and bumbling the way the young amateurs did to my play. Part of me warms to the idea of a cadre of lawyers with a very specific and accurate understanding of my artistic whim, patrolling the country and ensuring that if you see one of my plays you see it the way I intended. Amateurs, of course, would not be allowed to sully my work, no matter how much enthusiasm or interesting thought they had. Enthusiasm or new interpretation is not important: what is important is the proper representation of my work.
But of course, the law and economics is not solely dictated by emotions. Certainly, if they were, than a small group of dedicated amateurs who wanted to butcher my work (they, of course, wouldn't see it as butchering—they are proud of the mangled, misdirected work they have produced) would have a certain amount of legal-economic force, based on their sense of enthusiasm. And I, as well as they, know how it feels to want to put on a piece of work and find yourself frustrated.
Recently, I put up a play, in which music was a necessary component—it was a dance theater piece whose details I won't bore you with except to say that music was a necessary component. But where to get music? My attempts to have music composed for the production fell apart, much to our chagrin, and in haste we set forward to replace the music. Of course, the music I had truly wanted to use was by a popular band whose name I won't utter, except to say that my inquiries as to the possibility of using it were met by stony silence. I could have pressed forward, illegally, but of course I am one of those few people under the age of 25 in the United States who seems to think that it is important to follow copyright law, despite being one of the few people under the age of 25 in the United States who actually understands what copyright is. (It seems rather arrogant to be saying something as expansive as that while also emphasizing my relative youth, so let me follow it up by saying that I'm afraid of heights, and thus am not as fantastic as I make myself out to be).
Having felt the frustration of not wanting to violate the law without having communicated my intentions, I managed to secure the rights to certain music from a source which I had good reason to believe would not object to my playing of their song. I won't say who, but I will change the subject in a way which may hint as to their identity.
Covers are subject to the same regulation as any other derivative use of music. But sometimes artists perform unauthorized covers at concerts. Usually, it is not artists who object to this. I recall reading recently that Thom Yorke was shown by Radiohead's guitarist a video of Prince performing a song they had written. The video had been posted by YouTube, and Thom Yorke watched with approval. His first thought was, “That stealing bastard!” Why? Because he enjoyed the homage Prince was paying him.
His approval turned to disapproval when Prince issued a DMCA Takedown Notice to the YouTube poster, citing copyright infringement. Whose copyright? asked Thom Yorke. After all, the song did not belong to Prince. Had Prince licensed the cover, perhaps he could have had cause to issue a Takedown Notice—on the grounds that a licensed derivative work is to a certain degree an independent work. At any rate, he hadn't, so he was clearly overstepping his bounds.
Thom Yorke's feelings must have been odd, to see someone else asserting ownership over an idea that you had created. I suppose that's the feeling you get when someone creates a derivative work. Authors, upon watching the film adaptation of their work, likely feel the same thing. J.R.R. Tolkien might have been interested to see how Peter Jackson interpreted his work, but might he have squirmed if Peter Jackson got more attention as a result than Tolkien himself? I soon will get to experience that, as a play of mine (the one with the dance and the music, previously mentioned) is en route to being adapted to film.
Suppose I do get squeamish, and like Samuel Beckett wish to enforce an iron-clad control over my own work. I will, most likely, feel better. When I watch other people doing this, however, I don't feel as positively. I have seen the definitive Beckett. I want to see the nondefinitive Beckett. I want to see a Beckett that gets completely torn apart and ruined. I want to see all the things that Beckett put in the text but didn't mean to, I want to see all the ideas that are possible but not elucidated in his works. That, I suppose, is because I am not Beckett.
The law is supposed to, in theory, balance the feeling of the owner against the feelings of the prospective users. Currently, it does not. The reason is because the owners today have more money than the theoretical owners of the future. That is a different discussion, a legal-economic discussion, which is quite eloquently discussed by Lawrence Lessig in books such as Free Culture. The more philosophical discussion is best summed up by Jonathan Lethem's essay The Ecstacy of Influence (which is also an excellent example of derivative work being wholly unrelated to source material). And the practical discussion is best summed by a copyright comic book entitled “Bound By Law.” To a degree, I'm also looking at this philosophically, but based on this concept of “ownership” (philosophically; the legal definition is clear).
Who owns Shakespeare's work? The answer is very clear. It is in the public domain. We all own it. A subtler question: why do we own it? The law tells us that it's because Shakespeare wrote so long ago, that it now belongs to anyone who wants it. Common sense tells us that Shakespeare is dead, so clearly he can't own it. But suppose I could produce the rightful heir of Shakespeare—why wouldn't he be entitled to the Shakespeare fortune? There is one societal argument that says that we all deserve a cut at Shakespeare because it's only fair that after a while we get a chance at looking at it. This answer is slightly unsatisfying: basically, it says that at a certain point (arbitrarily decided by Parliament or Congress), the emotions of the owner are overtaken by the emotions of the rest of society. I don't disagree with that argument (I actually endorse it heartily), but I'm looking for the artistic argument.
Actually, I'm not looking for it. I've actually found it. I'm arguing that every artistic work has its own implicit rights.
What?
Think about it like this: a corporation is treated as an individual entity. The person who starts it may have put himself in control, but past a certain point, once it reaches the public sphere, it is treated in all senses as being separate from him. The founder, may in fact, be eventually forced out, but the corporation will continue until it is formally folded up.
Suppose an artwork had its own rights. Suppose it had its own feelings. How would Waiting for Godot feel about Beckett's “ownership?” Rather like a wife jealously lorded over by a paranoid husband, I should think!
When the artwork is first born, like any child, it is utterly fitting that the parent have full control over who it may consort with, how it may dress and behave. Children, after all, do not have the full right of free expression that parents have. But once it reaches the age of majority (originally 14), it is old enough to be set free on its own. In the United States, this “age of majority” is currently set at 70 years past the author's life, or 95 years. 95! Imagine if your father could still dictate who you could play with at the age of 95! Even past his death!
Artists are frequently referring to their works of art as their “babies.” Like parents, we want to hold our children close, keep them from risk, and stop them from leaving our grasp. But as any responsible parent will tell you, this is not the way to go.
Derivation from an artwork is how the artwork matures. The different interpretations, explorations, revisions, and extensions which subsequent artists add may not enrich the artist (unless, in today's copyright scheme, they're making money on each), but they do enrich the artwork. It matures, becoming fuller and more independent as more people interact with it and give to it. An excellent example is George Lucas' Star Wars universe. As a child, I watched the Star Wars trilogy with awe and excitement. When the movies were done, I watched them over and over again. I was eager for more. Quickly, I discovered that there were books. Authors like Stackpole and Timothy Zahn had created more and more stories, all related to the mythology and characters and fundamental universe as Star Wars, but each as different as the authors which contributed. Some were more aimed at youth, some were more aimed at adults. One series, Rogue Squadron, was in the subgenre of fighter-pilots; another (Jedi Academy) was in the old youths-at-school genre. I spent many years enriching myself in this wild and detailed universe.
Let us suppose that no one had ever been authorized to add another book to the Star Wars universe. All I would have had was those three movies. George Lucas sensed that, and so he added three more. And in a stunning example of an artist not knowing what's best for their own artwork, those three movies completely missed the entire spirit and sense of the universe. Normally, I would feel ashamed to say that—how can I know the artwork better than the artist?--but in actuality, the work of art “speaks for itself”--because it is its own entity. What I, and many other authors have found in the expanded universe, didn't seem reflected in the flashy but awkward prequels.
But this is not a Star Wars fan critiquing the missteps of George Lucas. My point is that the universe grew far more quickly when any author who wanted to (within certain guidelines and paying certain royalties) could expand the universe, than merely the lifetime work of Mr. Lucas on his own. The world would be impoverished without their efforts. And the artwork has a right to that infringement. For instance, under fair use clauses, we have already protected the right of journalists and academicians to write essays about artworks; thus complicating our thinking of an artwork by providing new perspectives. How many authors or playwrights or musicians wish they could use copyright law to suppress bad reviews! When Chinua Achebe or Ralph Ellison want to lash out at works like Heart of Darkness or The Sound And The Fury for perceived racism, they should be relieved to know that their work (which is a derivative of those works) is protected, no matter how many passages they copy to illustrate their point. Joseph Conrad or William Faulkner may disagree, but it is up to the artwork and its observers to understand the legacy.
An artwork encapsulates more than its initial writing. Brian Reynolds, in a series of essays analyzing Shakespeare and other authors, creates a concept called “Shakespace” which applies fairly well. “Shakespace” encapsulates not only Shakespeare's work, but all of the works which touch onto that, are derived from that, are related to that, are sparked by that. Shakespeare is the byword in theater that he is today because Shakespace is so large—it encapsulates West Side Story, and that movie with Leonardo Di Caprio, and also Billy Crystal and Robin Williams as the gravediggers. To attempt to define how large Shakespace is would be very difficult; Ubu Roi, though largely unrelated and still a fairly fanciful invention of Jarry's, is still in Shakespace.
So when I create a work of art, it carves a space in the world. At first, it is very small. It would remain small, aside from the effort of the artist. When I write a play, if I do nothing, it stays on my desk. I am the literary agent of my plays. If I had a literary agent, he too would be entitled a slice of the pie, but only inasmuch as I get him to help me. In that way, I'm entitled to royalties the way that the first theater to produce a play deserves royalties. They found my play, and gave it its first production, which gave it the recognition and public legitimacy it needed to become however profitable it turned out to be, so they deserve a profit. The Public Theater still today earns royalty checks on Chorus Line. I don't know whether they should still be getting royalty checks, but basic philosophy is fair.
So from the artwork's perspective, it owes a debt (which it cannot control) to the artist who created it. In fact, it always owes a debt to every artist who contributes, and their profit is according to the size of their contribution (from a commercial standpoint; sometimes the best contributors are not paid accordingly). But at a certain point, it is unfair for the artwork to continue to pay rent to an artist who no longer is doing anything to get the word out. Because if after 14 years the artwork is still in demand, then it is on the merit of the artwork, or other artworks by the same artist, and not the merit of the artist themselves. I do not buy a George Bernard Shaw play because I like the cut of his jib, or because he has tried very hard to sell it to me; I buy it because everyone tells me Major Barbara is a classic of the English language, and by the way Man and Superman is important, and maybe I haven't heard of this other play of his but if I liked Major Barbara I'll probably like it.
So you see why, from an artwork-oriented point of view, an artist is entitled to a copyright of a limited term? This philosophical approach creates a right to copyright without ever invoking the concept of ownership. Ideas cannot be owned. But your contribution to their furthering can earn you money. That, I believe, is the way things should be, and a law consistent with this spirit would certainly look a lot different than the one we have today. And to return, for just one last second, to my feelings: this gives an impartial judge, separate from the rights of the original creator and the rights of the end user (“rights” being very much tied to feelings of entitlement). The standard by which to judge is, what will further the ideas. And if you look at the Constitution, you notice that it declares that the purpose is for the promotion of progress in the arts and sciences—not in the promotion of artists and scientists.
