Copyright: The Right Move?
Whether it is General Zod, The Eradicator, or Lex Luther, no force has ever been able to defeat Superman. But over the past seventy years, there has been a force so powerful and extensive that even Superman has been unable to evade its reach. Its power lies in its ability to restrict and control the free flow of the fruits of creativity. To some it is a villain, and to others it is a hero. It is the force known as “Copyright Laws.”
To many, Superman has been the source of much joy and excitement since his creation in 1937. He was the first comic book superhero – the symbol of justice and integrity – but his popularity did not end there. As time progressed, he became a vehicle for radio serials, a regular figure on television and in movies, and even a video game star. While he may merely be a fictional comic book superhero, his contributions to American culture have been very real and pervasive. His creation spawned a string of superheroes, including, most prominently, the beloved Batman. Superman, furthermore, evolved over time into a cultural icon in America. Musicians sang about him, poets wrote about him, and he became the face of many puzzles, board games, and magazines. Various Superman lingoes, such as “Kryptonite” and “Brainiac,” became accepted in the vernacular. The cape became a symbol of strength, the bright red “S” shield a sign of invincibility, and Superman himself became the very embodiment of “truth, justice and the American way.” Superman has been at the forefront of American entertainment, and an America without Superman is hard to imagine.
Nevertheless, Superman has not only produced delight and amusement for the masses; he has also been prominent in another great American spectacle: endless litigation. Superman was created in 1937 by Joe Shuster and Jerry Siegel, two Cleveland area Jews who – desperate for money during the Depression – almost immediately sold their character to a comic book company. As Superman developed into a money-making machine, Shuster and Siegel grew increasingly agitated that they were barely earning any money from their creative labors, and not receiving much acclaim or credit for it either. They resorted to frequently litigating their rights under the Copyright Laws. After years of fruitless negotiations, in 1947 Shuster and Siegel sued to recover the rights to their intellectual property. And it did not end there. A bevy of legal agreements and headaches persisted throughout both of their lives, and only in 2014 was the issue finally resolved.
The Superman copyright saga begs the question: who owns our work product? To what extent should there be restrictions on the use of any American cultural icon, like Superman, that is already in the public domain? What generally is the purpose of copyright laws, and do they achieve their goals?
First and foremost, a thorough analysis hinges on requisite background information. “Intellectual property” is a term used to describe one’s ownership and legal control over various intangible possessions. This revolutionary idea – that the fruit of one’s intellect can be owned – introduced specific legal concepts like trademarks, patents, and copyrights whose main objectives were to protect those intangible belongings. A copyright was first instituted in 1709 with the British Copyright Laws, better known as the Statute of Anne. Pursuant to those laws, authors were given exclusive rights to their creation for fifteen years after which it would become part of the public domain. Its stated goals were to “encourage learning” and to encourage “learned men to compose and write useful books” by means of the financial benefit to the authors that the laws guaranteed.
The notion of copyright laws crossed the Atlantic in 1787 when Thomas Jefferson drafted the Copyright Clause in the United States Constitution. (Article 1 Section 8 Clause 8) Its stated objective: “to promote the progress of science…, by securing for limited times to authors… the exclusive right to their… writings.”
But the “limited time” suggested in the Constitution gradually expanded over time. The Copyright Law of 1790 gave the author rights for fourteen years, with the right of renewal for another fourteen years if the author was alive. Over two hundred years and ten different acts later, current copyright law has drastically inflated in scope, and protects the owner for 95/120 years or life of the author plus 70 years. U.S courts explain that the objective of copyright laws is to encourage the production of creative works for the public benefit, and presume that it is therefore in the best interest of the public to have a pro-author policy. All agree on the goal – to strike a fair balance between the rights of the creator and the consumer. But do American copyright laws achieve that goal? This question has sparked an intense debate.
Stephen Manes, an American writer who closely covers various technology issues, champions a conservative view of copyright laws that favors protecting the rights of the artists. Rigid copyright laws, he opines, protect the most elementary right of any producer – the right not to have his work product stolen by others. Manes, in his essay titled “Let’s Have Less of Lessig,” explains that “it can’t be that the true creator gets the short end of the stick, but the ‘creator’ who swipes gets a free pass.” A legal system that tolerates thievery is more suited to life in the jungle, and certainly cannot be characteristic of a democratic system ostensibly bound by justice and virtues. And just like “you wouldn’t steal a handbag,” Manes says, you shouldn’t be able to steal an idea either.
But even in a society that borders on anarchy and is not bound by any morals or ethics, it is still important to protect the rights of the product originator. If a musician anticipates that his song will be snatched from under him, he will inevitably lose both money and potentially even his incentive to create. The result will be a decline in high quality art, because only the independently wealthy artist will be able to invest the time required to produce creative works that cannot earn him any money. If Larry David needed to occupy his time making a living, he may not have had the time to fully develop his hit sitcom “Seinfeld.” Conversely, as Manes explains, exclusive rights for a producer means that “he can invest tens of millions of dollars in the certainty that a competing version won’t jeopardize that investment.” More investment means better results, and better results mean happier consumers who will purchase more of the product.
Additionally, protecting rights on one product incentivizes the creation of other products. As the Copyright Clause of the United States Constitution (Article 1 Section 8 Clause 8) states: [the objective of copyright laws is] “to promote the progress of science and useful arts.” And for Manes, it achieves that goal by encouraging people with culturally-revolutionary ideas to be creative. A world without copyright laws is a world where “a ragtag bunch of gleaners” claim that “copying is creativity because they can’t create anything without directly reusing copyrighted material.”
And the very notion asserted by the “copyleft” that copyright laws are too restricting denies reality to some degree. As Manes states “it’s worth noting that by 1937, when Disney made Snow White, the property would have been in the public domain and ripe for Disney’s free plucking, even under today’s supposedly draconian life-of-author-plus-70-years term.” To Manes, “modern copyright law is not quite as onerous” as the “copyleft” depicts it to be. Finally, Manes emphasizes that the fact that something is legally protected does not mean it is off limits and prevented from future creative use. Rather, it means that an interested party must either pay for or ask permission from the owner before use. As Manes states, “Disney paid to use copyrighted works like Peter Pan.” To Manes, the imperative of Copyright laws is obvious: they are stern enough to protect, and loose enough to facilitate creativity.
While Manes may regard Copyright laws as lenient, others strongly disagree. To them, the strict copyright laws certainly have drawbacks that affect the rest of society. And according to Jonathan Lethem, a prolific American writer and essayist, “have their drawbacks” is an understatement. In his 2007 essay The Ecstasy of Influence, published in Harpers Magazine, Lethem refers to American copyright laws as “limitless bloating.” But why would he describe copyright laws – noble laws ostensibly designed to protect natural rights, secure “intellectual property” and foster creativity – so cynically?
For Lethem, the premises of this question are simply false. The very notion that it is proclaimed a copyRIGHT is offensive to Lethem. He posits that it by no mean is an innate right, like the right to a civil trial by jury or the right of a militia to keep and bear arms; rather, it is “a government granted monopoly on the use of creative results”, and should better be labeled a usemonopoly. And no different than Carnegie’s steel or the railroad monopolies of the 19th century, a usemonopoly runs “counter to the public interest.”
Furthermore, Lethem argues that the very concept of “intellectual property” is somewhat “dubious” and labels use of that “property” as theft “almost laughable.” A civilized person would never consider stealing a handbag because a handbag, when stolen, puts its original owner at a loss. However, by “intellectual property,” the opposite is true. As Thomas Jefferson wrote: (quoted in “The Ecstasy of Influence”)
He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.
Not only does the owner not lose, but he even has what to gain. As counter-intuitive as it may sound, the more one’s work is mimicked, the more one’s popularity and respect rises. After all, as Charles Caleb Colton said, imitation really is the sincerest form of flattery. And the more a piece of art is copied, the more craving there is for the original. Hearing a vamped up “Stairway to Heaven” stirs up a desperate craving to listen to Led Zeppelin’s 1971 classic. But on a more altruistic level, leaving popularity and respect aside, a writer’s ideas can be sharpened by a fellow writer. A song can be refined by a fellow musician. A painting can be advanced by a fellow painter. Not only does this benefit the artist, but it certainly benefits the art itself. And if the whole point of art is to express deep ideas in creative ways, there is no better way to obtain that objective than to create an artistic “brain trust.” Like Roosevelt’s “brain trust” of the 1930’s carried us out of economic depression, a modern day arty “brain trust” can lead us into a creative and artistic prosperity. And ultimately, isn’t that the goal?
Lethem maintains that the rigid copyright laws in America inhibit that objective. And he even suggests a resolution to obtain that goal. His new system, the system that will foster creativity and enhance art to its utmost, is what he calls the “gift economy.” The “gift economy” has two clear advantages over the standard market economy. First, the market economy establishes zero relationship between the buyer and seller, and as Lethem puts it, “the disconnectedness is, in fact, a virtue of the commodity mode.” No one wants to be stuck for an hour in a grocery store shooting the breeze with a clerk with whom you have a forced and artificial relationship. But in a “gift economy,” that is not the case. A gift establishes a connection between giver and recipient. A bond between creators and consumers, along with fellow creators, betters the art community, and ultimately leads to better results.
The second advantage of keeping art as a gift is that it maintains the purity of the art. Lethem explains that art is by no means a money-maker. While people may financially gain from art works, its primacy is in its ability to “move the heart, revive the soul, delight the sense, and offer courage for the living.” And just like it is deplorable for a religion to sell sacred objects or for a country to sell people, it is just as unacceptable for a society to stain cultural purity by transforming art’s core into a crass, money-making proposition. Lethem goes as far as saying that “where there is no gift, there is no art.” Lethem’s “gift economy” instills hopeful enthusiasm for all proponents of free culture.
One problem with Lethem’s approach is that he envisions a system that views high level creative results as the prime objective, and only considers money and childish pride as an afterthought! That idea would never sell in the real world. And Lethem’s “gift economy” also relies heavily on unrealistic optimism. It is a complete illusion to think a system like this can work. If there is no system to protect artist’s rights to their products, artists will simply produce less. Religious objects and body organs need not be sold because they are not held by people who depend on them for their livelihood and income. Even the greatest artists, the artists with the most altruistic pure motivations for art, were forced to acknowledge the business aspect of their field. As Andy Warhol, the great 20th century American artist, once quipped, “making money is art and working is art, and good business is the best art.” By no means does this statement trivialize his artistic significance or make his marvelous works less sincere. Warhol simply acknowledged an obvious reality; no matter how much the inherent piece of art will “move the heart and revive the soul,” (which is the ultimate goal!), it will do nothing to pay the bills, feed a family, or take care of any other mundane “real-world” part of life. And while money-making may not be (and should not be!) an artist’s motivation, it is a legitimate concern.
Furthermore, to compare art to a sacred object that demands a relationship between the composer and consumer is also presumptuous. The value of art transcends way beyond any artist. Art tells a story. Art communicates an idea. Art is as alive as the one who created it, and continues to live long after its creator’s death. While the artist is a crucial part of the artistic process, a piece of art takes on a life of its own. Whether da Vinci cared about his Mona Lisa, or whether he simply wanted to make money, is irrelevant. The bottom line is the world became a better place with that piece of art. The practical aspects necessary to create art, namely monetary and protective rights, are crucial in order to facilitate the more pure aspects of art.
Ideally, the “gift economy” is great, but realistically it cannot survive. So is there a realistic means to achieve proper equilibrium, a proper balance between the creator and the consumer?
The only answer seems to lie in copyright’s history. Jefferson himself perceived the copyright laws as a necessary evil. Even as he drafted the Copyright Clause in the Constitution, he acknowledged that “it would be curious then, if an idea, the fugitive fermentation of an individual brain could, of natural right, be claimed in exclusive and stable property.” He understood that “inventions then cannot, in nature, be a subject of property.” But nonetheless, he understood that an artist deserves and requires protection. So he drew up laws that would restrict as little as possible, all while fostering and promoting creative growth. And that aim, to foster creativity, is universally accepted. For Manes the emphasis is on fostering the creator’s creativity, while for Lethem the emphasis is on fostering creativity for the rest of the market. And they are both important!
Therefore, the solution is fairly obvious. The originator needs to be protected, but his protection need not be as extensive as the modern copyright laws. Return to the days of old, the days where artistic protection did not translate into a 100 year shield. No artist will refrain from creating because his protection lasts only 50 years. The key to realize is that artists want to create for the sake of art; they just realistically need to be concerned with monetary responsibilities. But forty, thirty, even twenty years of protection is reasonable security for any artist who is thirsty to create.
With this reduced time limit, any creation will originally and primarily benefit its creator, but soon after will enhance the whole artistic community. With this setup, Shuster and Siegel would not have had to spend their lives coping with the stresses created by their beloved Superman. They could have spent their lives enjoying and celebrating the journey of the American icon, alongside the rest of American society.
Ari Pruzansky is a J.D. candidate, 2017, at NYU School of Law.