Tell Congress to Oppose Anti-FCC Legislation and Protect ConsumersContact Your Senators About These Bills
Two articles in Sunday’s New York Times might appear unrelated at first, but together they illustrate some interesting points about copyright. The first discussed problems related to getting “backlist books” (books that were published a number of years ago but are still actively being sold) into an ebook format. The second had to do with zombies.
The ebook article was interesting, but it should not have surprised anyone who has been looking at digital copyright issues for the past few years. Actually, it is more of a contract issue than anything else. Before about 1994 publishing contracts did not contain any language that explicitly granted publishers the right to print books in an electronic form.
Old Licenses Did Not See the Internet Coming
This kind of issue has manifested itself before. In the 1990s, freelance journalists working for various periodicals claimed that, while they gave the periodicals permission to print the articles, they did not give the periodicals permission to submit the articles to LEXIS/NEXIS. The Supreme Court agreed and as a result the freelancers had the opportunity to negotiate new contracts. The DVD release of a number of television shows that featured popular music (famously WKRP in Cincinnati, arguably more tragically MTV’s The State) has been delayed over licensing issues.
While all of these cases are different, they share similar narrative elements that should serve as a warning to budding transactional lawyers everywhere. When the work (be it a book, an article, or a TV show) was originally created, the distributor (be they a publisher, a newspaper, or a network) got all of the permissions it thought it needed. They got permission to create a book, or publish the article, or broadcast the TV show. It never occurred to anyone that they might want to make some sort of related use of the work in the future. As a result, they never bothered to ask.
Successful Authors Get An Opportunity to Renegotiate
When it became clear that there were new ways to distribute the old works (ebook, searchable electronic database, DVD/streaming) everyone started to fight. The distributors claimed that the old agreements covered the new distribution technology. The authors claimed that the new distribution technology required a new agreement. In general, the authors have won. In an attempt to avoid this in the future, today’s “modern” licenses usually contain a clause that gives the distributor permission to use "all media, now known or hereafter devised."
This appears to be exactly what is happening with ebooks. Authors such as William Styron and Joseph Heller insist that publishers need new contracts in order to distribute the works in electronic form. Now, I never met William Styron or Joseph Heller, and I don’t know what they were thinking when they signed contracts for books such as Lie Down in Darkness or Catch-22. I might suspect that Mr. Styron and Mr. Heller assumed when they signed the contract that it covered every way to distribute their books, but courts do not appear to be seeing it that way. As a result, Mr. Styron's and Mr. Heller's representatives have a chance to renegotiate the respective deals.
And Now, Zombies
As I mentioned at the top of this post that there were two articles. The second article was about Zombie-Attack Science (short answer: every movie you have ever seen is right. If you don’t “hit hard and hit often” all of humanity turns into a zombie). It is hard to think about zombies without the Copyright Term Limit Example of the Year Pride and Prejudice and Zombies jumping to mind (at least if you are a copyright policy wonk. To be fair, there are probably plenty of perfectly happy and well-adjusted people who see zombies and don’t think about Jane Austen).
To the uninitiated, Pride and Prejudice and Zombies adds zombies to Jane Austen’s classic work that many have enjoyed for years and some avoided reading in high school. As of today, it has spent 35 weeks on the New York Times paperback trade fiction best seller list. It is the Copyright Term Limit Example of the Year because the author Seth Grahame-Smith did not have to get permission from Jane Austen’s estate before publishing the work. That is because the copyright on Pride and Prejudice has long since expired. It is in the public domain. Seth Grahame-Smith can do whatever he wants with it. So can you. So can I. He does not have to get permission from the Austen Estate. He does not have to pay any royalties. He can just take Pride and Prejudice, throw in some zombies, and create.
Bringing it Home
So, besides both being referenced in the headline, how are these things related? They both show the value of copyright term limits. As I mentioned above, I never met William Styron or Joseph Heller. I also never will meet them. Styron died in 2006, 55 years after the publication of his award winning Lie Down in Darkness. Heller died in 1999, 38 years after Catch-22. It is not Styron and Heller fighting with publishers for new ebook deals. It is their estates.
I still don’t know what rights Styron and Heller understood they were signing away when they agreed to their publishing contracts. However, I do know that neither of them ever expected that there would be a fight over electronic versions of their works in 2009. There are at least two reasons for this. The first is that they did not anticipate the invention of ebooks (or, if they did, they brilliantly omitted it from their publishing contracts waiting for this very day to for their estate to spring the trap).
The second is that while they were writing the books, Styron and Heller assumed that (if they gave it any thought at all) their works would be, or about to be, in the public domain by now. When both Lie Down in Darkness and Catch-22 were published, the maximum term of copyright was 56 years. Under that regime, Lie Down in Darkness would have entered the public domain in 2006. Catch-22 would be poised to join it in 2016. Now, because of copyright extensions, neither work will enter the public domain before the middle of this century.
Creators Create With Only 56 Years of Protection
56 years was clearly plenty of protection to motivate Styron and Heller to create their works. I have no doubt that, given the option between 56 years and 95 years of protection, they would have chosen 95 years. I also have no doubt that the estates of both Styron and Heller would prefer to keep collecting royalties on the works indefinitely (this is not a knock on them. I too hope that my artist brother is so successful that I can retire merely on the strength of being related to him. However, that is not what motivates him to create). Jane Austen’s estate would probably prefer to have a valid copyright on Pride and Prejudice.
Unfortunately for relatives of successful artists everywhere, the point of copyright is not to give authors as much protection as possible, or to maximize returns for future generations. If that was the point, how could you ever determine when the term was long enough? The point of copyright is, in the words of the Constitution, “to promote the progress of science.” We give creators a copyright for as long as it takes to convince them to create.
56 years was enough to promote the great works of Styron and Heller (and everyone else who created before 1976), but current copyright law gives them more protection. At first, this might not seem like such a big deal. If someone is going to make money from selling Catch-22 as an ebook, allowing Heller’s estate to get a cut does not seem like a horrible thing.
Copyright Term Limits Allow Seemingly Stupid But Actually Brilliant Ideas to Flourish
That’s when the zombies come back (because zombies always come back). Copyright term limits are not just about who gets paid for the ebook version. It is also about public access. If asked, the estate of Jane Austen may not have been crazy about adding “ultraviolent zombie mayhem” to Pride and Prejudice. It may have loved the idea. No one really cares. I can turn Pride and Prejudice into a movie (over and over and over) or a TV miniseries or a musical, or just print my own version and start selling it. It does not matter what Jane Austen’s estate thinks about the idea. Pride and Prejudice is in the public domain. No one needs to ask permission before using it however they please.
Beyond the financial issues, that is what really gets lost with long copyright terms. Pride and Prejudice and Zombies seems brilliant now, with 35 weeks on the bestseller list, a film adaption staring Natalie Portman in the works, a prequel, and additions to the genre like Sense and Sensibility and Sea Monsters. However if Jane Austen’s estate still had control over Pride and Prejudice, even if it was fairly permissive in granting permission for use, it is unlikely this idea would have gotten a return phone call. Any gatekeeper in charge of the estate, be it a relative, a lawyer, or a trustee, would have stifled this idea well before it was brought to market.
We as a society accept the existence of that gatekeeper because they promote the progress of science. However, we do not accept them indefinitely because the gatekeeper has costs. Maybe it makes it harder to bring out an ebook edition of a 50 year old story. Maybe it makes it harder to turn Pride and Prejudice into a zombie gore fest. Maybe it keeps millions of “orphan works” out of circulation. In any event, whenever you think about copyright terms, remember all of those things that could be created if there was no one to say, “Zombies? Get out of my office!”