Just whose idea is it anyway?
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
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 StarKist®) 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.
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.
(BEGIN TEXT OF INFOBOX)
Defining the limits of intellectual property
As the “copyright economy” expands, lawsuits abound. Attorney David Nimmer keeps a file of some particularly creative efforts:
* In 2002, Fun Spot Action Park, an amusement park in Orlando, Fla., sued nearby Magical Midway, claiming the other park had wrongfully imitated the design of its go-kart tracks. Fun Spot won the first round of the legal skirmish.
* In 2003, photographer Penny Gentieu sued a stock photo house for getting other photographers to imitate her way of photographing naked babies against a white background. “Given the impermissibly expansive nature of Gentieu’s claims,” noted the court, “it is only surprising that she has not asserted a copyright in the universe of babies as well.” Gentieu lost big time.
* A photographer whose work was used to sell plastic picture frames in retail stores sued a company in 2003 for copying his disposable paper inserts. The photographer lost.
* In course work toward a marketing degree, Noel Roque Rodriguez came up with a plan for “ ‘Rumba Caribbean Bar & Cuisine,’ intended to capture Puerto Rican traditions and folklore through food, drinks, salsa music and dance.” In 2003 he sued a restaurant in Miami for allegedly copying his idea. The judge gave his suit a failing grade.
* In 2002, a novelty company called JCW Investments Inc. sued Novelty Inc. for imitating its “Pull My Finger Fred” doll, which shakes, makes a crude noise and offers scatological cliches when its finger is pulled. For example, Fred says “Silent, but deadly” and “Did somebody step on a duck?” It turned out that neither plaintiff nor defendant developed the idea: Years earlier, someone else had gone on the radio with a sketch titled “Pull My Finger Charlie” showing a hypothetical toy doll that made a similar noise and joked, “Did someone step on a duck?” when its finger was pulled. Still, after a trial tracing flatulence jokes back to Emile Zola, the plaintiff won.
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.