Forbidden Works: The “free speech” rights of secondary authors.

Ken Liu is a speculative fiction author whose stories have been published in The Magazine of Fantasy & Science Fiction, Strange Horizons, Clarkesworld, and Lightspeed, among other places. He lives in the Greater Boston area with his wife, artist Lisa Tang Liu, and their daughter. His web site is kenliu.name and he can be reached at <ken (at) kenliu.name>. This essay was originally published in LOGOS: The Journal of the World Book Community, Volume 20, Numbers 1-4, 2009, pp. 110-123. Hats off to Ken for releasing it under a Creative Commons Attribution-Share Alike license, thus enabling us to republish his fine essay.  –The Editors

Forbidden Works: The “free speech” rights of secondary authors.

by Ken Liu

If free speech means the right to speak and write as you will, then certainly the copyright laws impose limits on that freedom (there’s no need to bring up the Copyright Clause, the First Amendment, and the like. I’m not making a legal or Constitutional argument at all. I’m simply describing the practical effects of the copyright laws).

For example, I cannot quote the lyrics of “The Sounds of Silence” in a novel without permission; I cannot publish a short story featuring Harry Potter or Jack Sparrow; I cannot improve upon the music of the Dixie Chicks by writing my own lyrics to their songs; I cannot make my own sequel to Spider-Man because I think Spider-Man 2 and 3 are poorly done. From a practical point of view, it makes little difference whether my sequel to The Catcher in the Rye is banned because the government censors dislike it or because a court tells me that it is an infringement of copyright.[1] Sometimes, copyright holders actively use (or abuse) copyright simply to prevent speech that they wish to suppress.[2] These are real limits on my freedom to speak or create.

Many (most?) of us would shrug our shoulders and say, “So what? Just do your own original work. Stay out of someone else’s creative universe.” While we are sensitive to any sort of explicit political censorship, the limits on free expression due to the copyright laws are generally ignored.

I’m not sure that we should be so dismissive of the claims of those who would like to “play in someone else’s creative universe,” as it were (as a shorthand, I’ll refer to authors who would like to write works that would infringe on another’s copyright – derivative works – as “secondary authors”).

Creative expression, in our modern view, is carved up into neat pieces under exclusive control with staked claims. Secondary authors who want to improve on another’s work or create something new out of it are severely constrained.[3] (Theoretically, secondary authors can negotiate with the copyright holder for a license, but this requires legal and financial resources that many secondary authors lack. And even if they are willing and able to pay, the copyright holder can still just say no.) Copyright expansionists sometimes argue that without an expansive notion of copyright, art and culture will suffer severely.[4] Creators would lose the incentive to create, and we would all be the poorer for it. Some version of this seems to be the conventional wisdom and those who argue to the contrary are labeled “pirates,” “thieves,” and worse.[5]

But is this true? The system of copyrights we have instituted in the West is, in fact, a relatively recent aberration in the history of culture and creativity. Our modern rules about what can and can’t be done with creative works have not been there from the start. In predominantly oral creative traditions, the rules are very different. Let’s take pre-Classical Greece as an example: any traveling bard there could come up with new stories about Achilles and Hector. No one, certainly no corporation, owned Achilles and Hector. If one bard’s story was very good, other bards copied it. If another bard’s story wasn’t very good, the story died out. If a bard didn’t like the way another bard told the story or imagined a scene, he improved on it with his own version, perhaps making very minor changes. An audience member might shout out a particular twist he would have enjoyed, and the bard thought about it and changed the way the story was told the next time. Two friends might sit down and try to remember as much as they could of a bard’s story they had heard, and remembered things just a little different from the original, and better, so that they told the story to their kids that way and that was how the kids remembered the story. This was how the Anglo-Saxon poets composed and passed on their collective sagas, how the French troubadours collectively generated courtly culture, how European folk artists and peasant families told and refined fairytales, and how the anonymous men and women of ancient and Classical China created the repertoire of narrative songs and folk operas that survive to this day. Yes, most of these works are known to us today after they have been collected, standardized, and written down by a single person in a fixed form, but that person is not the sole “creator” and “author” in any meaningful sense.

This was the market at its best: a work flourished if it was good (and improved upon and extended by many people), and a work died if no one thought it was any good. In this marketplace of ideas, individual works competed for attention, interest, mindshare. (The marketplace of ideas is still with us, but it now exists in parallel with a copyright market in which sellers compete for money.) This was the way some of the greatest works of literature in our history were composed: collaboratively, openly, by many authors in free-ranging competition making incremental improvements. Works of art and cultural creations were conversations in which many voices participated, and the marketplace of ideas was an unruly bazaar.

And this isn’t limited to art by any means. This sort of collaborative competition – collaborative authorship via (possibly) competing variations of the same theme – is inherent to the way science, technology, philosophy, religion, etc., all evolved. The history of early Christianity was one long tale of competing versions of the Gospels, incrementally modified and collaboratively composed over time. The freedom to copy and to improve on the work of others is the very basis for Western civilization (or any civilization, for that matter). How can an idea spread when it cannot be copied and improved upon?

This is one of the neglected, but important, meanings of “free speech.”

Yet, the role of collaborative competition in artistic composition is under threat in our copyright-laden world. Copyright grants the primary author a veto over all derivative works (I’ll tentatively define “primary author” to mean someone whose works receive the protection of the copyright laws and who (or whose assignees) can bring copyright claims against secondary authors). This is so regardless of whether the secondary author’s creations would be in direct competition with the primary author’s work or if they would enhance the value of the primary author’s work. Copyright gives the primary author all the cards.

For example, when someone tried to improve on The Phantom Menace with a new edit, George Lucas stopped the new, better version from being distributed.[6] It really didn’t matter if the fan edit drew attention away from Lucas’s version or increased interest in it. It also didn’t matter if the fan editor did not intent to make a commercial profit. Star Wars was Lucas’s universe and he didn’t have to let anyone else play in it. End of story.

Lucas is hardly alone. J. K. Rowling shut down a fan who was trying to write a reference book about Harry Potter even though the fan’s website, upon which the book was based, probably helped sell countless copies of her books.[7] Hasbro shut down Scrabulous, even though it encouraged me to dust off my old Scrabble set and probably caused a boost in sales of the board game itself.[8] It doesn’t matter that you, as a secondary author, are improving on the primary author’s work, increasing its value, or meeting a complementary and unmet need in the market; the copyright laws give the primary author the only vote that matters.

Many of these examples involve copyright holders who are the megastars of our culture, whose works dominate the cultural conversation by their popularity and impact. In a sense, the characters, symbols, plotlines, quotations from these works form the repertoire of references that we use to talk to each other. Han Solo and Harry Potter do not just belong to the copyright holders; our collective imaginations have claims on them as well. They are our Achilles and Hector.

Yet, our cultural conversation about these copyrighted works cannot flow freely. Secondary authors may not create freely and tell their own stories based on these cultural symbols. The veto over secondary authors held by the primary author changes what should be a symposium of collaborative and competing voices into a monologue by the primary author followed (if at all) by a scattering of approved accompaniment from licensed secondary authors.

Every year, it seems that the terms of copyright grow longer, and the scope of what might constitute infringing “derivative works” wider. The uncertainty over the boundaries of these ever-widening protective circles creates further chilling effects. Some authors become terrified of reading books that may be thematically close to or relevant to what they want to write because there is the risk that if their work echoes another work in some way, they’ll end up going to court for copyright infringement or die the death of a thousand cuts in the press for “plagiarism.”[9] They self-censor and steer wide of writing anything that may resemble – where “resemble” may include merely tapping into the same elements of the zeitgeist – other people’s work to avoid the risk. They cut themselves off from the possibility of literary conversations, conducted through competing works that roam over the same ground. A friend of mine, in the business of making movies, refuses to see or read anything remotely related to the idea that she’s thinking about turning into a movie.

Viewed through this lens, the artists today create, each alone, desperate to avoid “contamination” by the vast sea of copyrighted culture out there, and without any competition in his private copyrighted universe. Are we really better off this way?

This is strange, considering that most of us believe that open competition is what will produce the best result. This is why the “marketplace of ideas” is the principle upon which modern free societies are founded. By all measures, the unruly bazaar in which all are free to copy and innovate has done an excellent job in creating our rich culture for thousands of years. But we seem now to be saying that that model doesn’t work, needs to be fixed, and any hint of competition should be stifled. Under this view, secondary authors should not be allowed to improve upon the work of primary authors and let the marketplace decide which is better.

The copyright laws are in fact making entire classes of secondary creative works illegal and unavailable, even when they have important and obvious value and seem to do little or no economic harm to the primary author. I have already mentioned several examples, but many more can be found. For instance, various unauthorized tales of Harry Potter are popular in China because they “localize” the Potter characters and meld them with Chinese settings, folklore and traditions[10] – a demand that Rowling is evidently uninterested in or incapable of meeting, and one that is distinct from demand for the authorized books from Rowling. It’s highly doubtful that these works affected sales of Rowling’s own books in a negative way and may well have enhanced such sales by making Rowling’s characters and world more interesting to Chinese readers.

Even if unauthorized versions would compete directly with authorized versions, why shouldn’t the better version win? That is, after all, the point of the marketplace of ideas. Many Chinese readers feel (and I agree from personal experience) that authorized Chinese translations of Western books often contain more errors and are inferior to unauthorized fan translations. Sequels from authors who have grown complacent and lazy are sometimes not as good as fan fiction that takes risks and go off in new directions. Knowing that competitive alternatives from other creators could be legally available might have spurred the primary authors to do better work. Competition and the threat of competition both improve the quality of the offerings.

And these are only the examples that we can list because they were created illegally and made available illegally – our awareness of them is due to defiance of, or lack of enforcement of, the laws. We suffer from the problem of negative evidence: we do not know how many such works were never created because would-be secondary authors respected the laws or were snuffed out before they could be distributed due to effective enforcement of the laws. Might there have been unauthorized Harry Potter books in English written from the perspective of a house elf that would have engaged in a thoughtful critique of the book’s world? Might there have been a version of Twilight that would have changed the character of Bella to appeal to readers who didn’t like the original? Might there have been versions of Nicholas Sparks books featuring zombies just like there is a version of Pride and Prejudice featuring zombies? [11] Such works may well have enriched our culture in ways that we cannot even imagine. We will simply never know because such works are not allowed to exist.

It seems to me that our culture is the poorer because of expansive copyright. There’s no other way to put it: copyright harms free speech.

It is true that some copyright holders, recognizing the value that secondary creations add to their own work, do tacitly allow secondary authors to play within their creative universes – fan fiction, fan art, game mods, cosplay, etc. – but always in the background hangs the threat of the hammer. The secondary authors create at the mercy and pleasure of the primary author. Any time, for any reason, the primary author can change her mind and demand that the secondary authors cease their work and publication. This is hardly the way to structure a vibrant and free discourse.

So why does the primary author deserve such special treatment?

Is it because the primary author is original while the secondary authors are not? What does “original” mean precisely? If by that term is meant someone who creates ex nihilo, I think only God qualifies. It’s trivial but nonetheless true to say that there is no such thing as a completely original author – everyone creates based on what has already been created. Shakespeare wrote his plays by taking plots and descriptions (sometimes almost verbatim) from Roman histories; J. K. Rowling wrote her novels by taking folklore (created by generations of anonymous artists) and images of English prep schools (created by generations of schoolboys-turned-wistful-authors) and added her unique signature to the mix. Tolkien sprinkled elements from early Germanic and Anglo-Saxon literature in his books, and everyone writing high fantasy since then has written in Tolkien’s shadow. No one creates out of a vacuum – anyone who writes or composes music or dances or paints already knows this to be true.[12]

Is the primary author perhaps “more original” than the secondary author by using less of what already exists? Not necessarily. Of the following three books – John Gardner’s Grendel, Zachary Mason’s The Lost Books of the Odyssey, and Fredrik Colting’s 60 Years Later: Coming Through the Rye – which is more original than the others? Aren’t the different legal statuses accorded these books solely the result of whether the source material was under copyright? [13] Why should the creator who derives from uncopyrighted material be considered any more “original” than the creator who derives from copyrighted material? Why should we favor a literary conversation with the dead over a literary conversation with the living? Why should we prize remixing the old over remixing the here-and-now?

The line between primary authors and secondary authors is arbitrary, a purely fictional distinction created by the copyright laws. It is a line that separates creators from other creators, declares certain forms of expression to be off-limits, and transforms the unruly, noisy bazaar of open competition into silos of ever-expanding monopolies. It forms the basis for our modern, expansive notions about copyright, yet it is contrary to how culture and art were created historically – collaboratively, openly, in free-ranging competition – and profoundly at odds with how we experience creativity in our daily lives.

It is hardly news that creators are not motivated only (or even primarily) by the promise of monetary rewards from copyright. A creator is someone who brings into existence some quantum of newness which was absent from the world before – let’s call that “originality” – and anyone who has taken some preexisting thing and transformed it, added to it, or improved it in some way, however small, has been a creator.

Have you ever told your child a story you heard from your own father when you were little? Did you tell it exactly the way your father told it? No, you changed it in some way so that it was uniquely yours (tighten the plot a little, add a funny voice, transform the setting, update the moral message …) so that you could pass on something of yourself to your child.

Have you ever told a joke you heard to another person? You did not tell it exactly the way you heard it. Have you ever sung a song? You did not sing it the way you heard it.

The greatest myth of the copyright lobby is that most of us are mere passive “consumers” of “content” brought to us by corporations who have obtained the rights from individual demigod-like “creators.” It is not our role to participate in culture, only to passively consume it.

But throughout the history of culture, the bulk of creative acts have belonged to people like you and me: a mother telling a child a story; a boy regaling his friends with improbable tales of his physical prowess; a few friends enjoying a moment together with a funny made-up song. We are all secondary authors. Most of our creations are stupid, mean, silly, pointless, or all of the above. It doesn’t matter. Most of our creations are also “derivative” in the sense that we made only small improvements on what we received. That also doesn’t matter. When something catches the fancy of others, it survives and gets passed on, and all of us, I bet, have created a few ideas and thoughts that will live on long beyond ourselves, in the memories of those close to us.

How creators “should” be compensated financially is a very important question, but it is also a fact that the vast bulk of creative acts in the history of the world (and still going on) have not been compensated financially through the use of copyright.

Well, why do we do it? Why do we create? Do you think you told a joke to your friend because you wanted to be paid for it? Do you think you sang a song to yourself because you wanted to be “compensated” for it?

I do not think that artists are very different from you and me. Shakespeare, Milton, and even/especially Rowling[14] did not write because they expected money. The art world is a world of a few megastars and many, many who barely make a modest living. The money, if they got it, was a nice bonus and a surprise, a fairytale coming true. They created because it was what they loved to do. Sometimes they got lucky, and got paid a lot of money. But if you ask artists whether they’d go on thinking up stories and painting and singing, even if they weren’t paid for it and had to do something else to pay the bills, many would tell you yes, oh yes because they already are doing just that. This isn’t true for all artists, but it surely is true for many.

What do artists want? They want their work to be read, to be seen, to be heard, to spread as widely as possible. They hunger for the sense of immortality that comes from having their work capture the imagination of the world. They want to share. They want to participate in the community conversation we engage in, in which we remix the old into the new, and call the result culture.

Suppose we present the following options to a struggling author: a million dollars for your short story, but it will never ever be read by anyone, and you can never write again (nothing, absolutely nothing); or, nothing for your story, but your story will be read by everyone in the world and it will live on generation after generation, inspiring new works and new conversations; which option would the author pick?

Here’s another question to a hypothetical author: if you created a few characters and made up a story about them, would you prefer that the characters be forever forgotten or that the characters live on with many more stories told about them, but written by other people? Would your answer change if you knew that you could also make up new stories about any other characters created by other authors and that you and they would be able to freely compete for who has written the best story? Not all authors will answer this one the same way, but collaborative competition was how artistic creation was done for the majority of our history, and I think we turned out all right.

Regardless of the existence of strong copyright and monetary rewards, many artists (though not all) will go on to create, because creation is as natural as breathing for the human race. This isn’t some romantic vision of the “starving artist.” It’s simply an observation about what artists really do. So much creative work is done, even now, for free. Most artists have day jobs and most of them do not starve and most of them create even though they make little or no money from doing so. Writers compete intensely for publication opportunities that pay them nothing other than the attention of readers. In China, despite the ever-present weight of censorship and a lax, unenforced set of copyright laws, writers have posted countless wonderful serial novels online, fueled by nothing more than feedback from readers begging for the next chapter. Everywhere on the Internet, fan fiction, mashups, remixes, rewrites, unauthorized sequels and translations – most of them illegal under our copyright laws – flourish even though their creators have no hope ever of receiving legitimacy or payment.

It’s trivial, perhaps, to argue that art and culture would survive without expansive copyright. The real question is whether art and culture would be better. I’ve focused on what works of art we have been (and continue to be) deprived of through an expansive definition of the rights of primary authors. But what about the works of art that are made possible because of such expansive rights?

Now, I should make it clear that I am not arguing for the abolition of copyright. It is certainly true that the copyright system has allowed many more people to make a living as artists. Without copyright, far fewer artists would be able to engage in their creative endeavors professionally and full time. They would have to rely on patronage, or marry someone wealthy, or create while working another job. Copyright is also an enabler of speech. Many works that we enjoy would not exist without the copyright market to marry ideas with money. I am interested, however, on the effects of the particular feature of our copyright system which gives primary authors control over derivative works that themselves contain extensive originality.

Giving primary authors such expansive rights over derivative works likely enhances the bargaining position of primary authors, often in socially desirable ways. A movie studio, for example, cannot simply make a movie based on a popular short story, which may have made the author of the story little money, without sharing some of the (much larger) box office receipts with that primary author. This has an intuitive appeal to our notions of fairness. And since the movie studio is presumably endowed with ample resources (financial and legal) and driven by a desire for profit, forcing it to negotiate with the short story author seems unlikely to negatively affect free speech considerations.

And the copyright industries – think Disney – probably depend to some degree on the expansive rights of the primary authors to monopolize all derivative works and possible revenue streams (books, video games, toys, merchandise, theme parks, etc.) to justify investment in capital-intensive artistic creations like movies. These massive works of corporate authorship, which require the collective work of many creators, are really business ventures that happen to produce art. In contrast to individual creators, it seems reasonable to think that corporate authorship is primarily incentivized by financial gain. In the process of dominating our cultural conversation as “content-providers,” they also provide many artists with jobs, doing what they love to do in legally sanctioned ways.

It is unclear, however, just how much value the ability to veto all derivative works by secondary authors – even those produced without intent to make a profit – has for corporate authors. A corporate author is at a tremendous advantage compared to individual creators in the copyright market in terms of resources, production value, and brand name. Even without the ability to unconditionally veto all unauthorized derivative works, perhaps a very thin copyright would be sufficient to protect the investments made by corporate authors.

Many artists, no doubt, would be completely unmoved by my defense of the additional freedoms to create that come from a world without expansive copyright and would defend the existing system of copyright passionately. The system we have does provide many benefits to many people.

By now, it should be clear through this discussion that culture and art – an economy of ideas, expression, attention, memory, interest – is entwined with, though not identical to, the economy of ideas and money. Copyright attempts to balance the best interests of these two markets by making certain tradeoffs.

I think our current copyright laws have gotten that balance wrong. The system we have limits many freedoms and eliminates certain classes of creativity, and in exchange, it brings about an abundance of certain other types of creativity.[15] It benefits primary authors at a cost to secondary authors.[16] But it tilts too far in favor of marginal economic benefits for primary authors and neglects the social benefits that free speech by secondary authors bring to our culture and art.

I have a modest proposal that I think will do much to ameliorate the harmful free speech effects of the current copyright laws without injuring their economic and speech-enabling benefits too much.[17] We should exempt from the primary author’s control almost all derivative works made and distributed by secondary authors without a commercial motive.[18] The proposed reform would still force the movie studio to pay the short story author if the studio wants to make a movie based on the story, but it would exempt secondary authors who are primarily interested in being active participants in a cultural conversation. In fact, the proposed reform would protect secondary authors from arbitrary and capricious uses of the veto now held by primary authors and allow them to create without fear that the primary author can step in any time to tell them to shut up.

This is a world that would permit – legally and without any air of illicitness – “fake” Harry Potter books to be posted on the Internet, rewrites of Twilight to be disseminated as social commentary, sequels to the Catcher in the Rye to be given away for free, The Phantom Edit to be available on YouTube and BitTorrent. Fan fiction authors will not need to fear the law, and non-parody rewrites need not exist only underground. It will not solve every instance where free speech is harmed by copyright, but it will permit a far more vibrant cultural conversation than what we have.

In many of these cases, the derivative works will not harm the primary author economically – 60 Years Later: Coming Through the Rye is simply not a substitute for The Catcher in the Rye, and may even help the primary author by increasing interest in the original. But even in cases where the derivative works will harm the primary author – a freely available fan translation that is better than the authorized translation probably will harm sales of the authorized translation – I think the benefits to free speech and the enrichment of our culture outweigh the injury to the primary author. By limiting the exemption to non-commercial secondary authors, the reform tries to maximize the interests of those who create out of a desire to speak freely over the interests of those who are motivated primarily by profit and those who wish to use copyright to suppress speech.[19]

A copyright system that is more tolerant of secondary authors may well be more in line with the technology and ethos of the Internet. The Internet has enabled person-to-person communication at an unprecedented scale, sped up the cultural conversation, and unleashed the creativity of hundreds of millions. This is a world in which copying and distribution is costless, and taking what you see to create something new is an instinct that permeated the Internet from the start: web browsers allowed you to see the source code – HTML – of any page you visited in the browser. You could figure out how a particular effect was achieved and copy that in your own creation. People committed massive acts of copyright infringement (and still do) when they created their websites by copying the code of other sites and modifying the code to suit their own needs. From these small acts of collaborative creativity, we have built this wonder of the world.

The online world resembles the marketplace of ideas in its raw form. A new work – a picture, joke, video – is created by someone; someone else sees it, copies it and modifies it in some way and passes it on; other users feel inspired and make their own variations on the same theme; everyone picks the variations they like and passes them on; and pretty soon you have a full-fledged meme flowing around the world – this is how we ended up with so many lolcats and Downfall parody clips.

Secondary authors on the Internet, many of them young, are constantly running into the barriers thrown up by the copyright laws.[20] Rather than suggesting that something is wrong with the younger generations, the digital natives, perhaps we should recognize that it is our copyright laws that are at fault. The Internet is accelerating and forefronting the collaborative competition engaged in by the community of primary and secondary authors in art and culture. This is a process that has existed since before copyright, and has never ceased to be a driver of innovation even under copyright. But our copyright laws have grown to sacrifice the interests of secondary authors for questionable benefits and harmed free speech in the process. We need to restore the balance to the laws.

Culture was, is, and will be made by copying, modifying, and sharing, not by locking things away.

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Footnotes:

[1] See Sewell Chan, “Ruling for Salinger, Judge Bans ‘Rye’ Sequel,” “City Room” Blog for the New York Times, July 1, 2009, available at http://cityroom.blogs.nytimes.com/2009/07/01/judge-rules-for-salinger-in-copyright-suit/.

[2] See Tim Cavanaugh, “Portrait of the old man as a copyright miser,” Los Angeles Times, June 5, 2007, available at http://www.latimes.com/news/opinion/la-oew-cavanaugh5jun05,0,2402066.story (“Stephen Joyce’s habit of aggressive copyright defense … is the stuff of legend. Scholars in the vast (maybe too vast) Joyce industry have formed support groups and fact-finding missions just to deal with his attempts to prevent Joyce scholarship”).

[3] Often these issues are debated under the heading of “fair use,” a doctrine that only imperfectly deals with a small subset of secondary creativity.

[4] At the risk of belaboring the obvious, it should be pointed out that an expansive definition of “derivative works” is not necessary to a copyright system. One can design a set of very “thin” copyright rules that protects against only verbatim copies or works that are virtually identical to the original. Our system is relatively “thick” and (perhaps) has grown thicker over time.

[5] I should make it clear that I am not here concerned with the legality or desirability of verbatim copying made for “personal use,” “backup,” “people who wouldn’t have bought authorized copies anyway,” and the like, sometimes described under the rubric of “consumer rights.” I am here concerned with the perspective of secondary authors, those interested in the creation of new works based on existing works under copyright.

[6] See Wikipedia entry on “The Phantom Edit,” available at http://en.wikipedia.org/wiki/The_Phantom_Edit, last accessed on May 7, 2010.

[7] See Sewell Chan, “’Harry Potter’ Author Wins Copyright Ruling”, “City Room” Blog for the New York Times, September 8, 2008, available at http://cityroom.blogs.nytimes.com/2008/09/08/harry-potter-author-wins-copyright-ruling/.

[8] See “Hasbro sues Scrabulous makers for infringement,” the New York Times, July 25, 2008, available at http://www.nytimes.com/2008/07/25/business/worldbusiness/25iht-scrabble.1.14781794.html.

[9] Along with the expansion of copyright, some authors seem to be trying to get an even broader monopoly than copyright will grant by claiming that other writers working with similar ideas or themes – not protected by copyright, which is limited only to “expressions” – are “stealing” or “plagiarizing” from them.

[10] See Howard W. French, “Chinese Market Awash in Fake Potter Books,” the New York Times, August 1, 2007, available at http://www.nytimes.com/2007/08/01/world/asia/01china.html. See also Sam Greenspan, “11 Amazing Fake ‘Harry Potter’ Books Written in China,” available at http://www.11points.com/Books/11_Amazing_Fake_%27Harry_Potter%27_Books_Written_In_China.

[11] It is true that “fair use” contemplates some room for parodies. But the universe of plausible, interesting, and valuable derivative works is far larger than parodies.

[12] We may have even underestimated the role played by the remixing of existing elements in the creation of new works simply because prior to the age of Google, it was difficult for anyone to identify all the references and elements that a work of art took from other works. Computer analysis may well transform our understanding of originality and creativity. For example, David Cope, an unusual composer who composes with the aid of a “creative” algorithm, has “reverse-engineered works by famous composers, tracing the tropes, phrases and ideas back to compositions by their forebears.” Cope’s view has been described as: “all music — and, really, any creative pursuit — is largely based on previously created works. Call it standing on the shoulders of giants; call it plagiarism. Everything we create is just a product of recombination.” See Ryan Blitstein, “Triumph of the Cyborg Composer,” the Miller-Mcune Online, February 22, 2010, available at http://www.miller-mccune.com/culture-society/triumph-of-the-cyborg-composer-8507/.

[13] The conventional claim that “secondary authors” cannot possibly be as original as “primary authors” has an interesting parallel in the world of design. I describe a world tolerant of secondary authorship as a “noisy bazaar,” and the image may bring to mind the great electronics markets of the Far East, in which are offered for sale forbidden products that are unauthorized, incremental improvements, modifications and extensions of designs protected by intellectual property laws. Many have imagined that they can easily tell apart such “derivative knock-offs” from the real deal. This claim is cast into doubt recently when images that purported to be Apple’s new iPhone emerged on the Web, and a debate followed as to whether the images depicted a real, “original” Apple design, or a mere Chinese knock-off. The very same design elements were cited by different commentators as evidence of either originality or knock-offish-ness, depending on the conclusion that the commentator wanted to reach. Originality really is in the eye of the beholder.

[14] See “J.K. Rowling speaks out about the depression that inspired her to write Harry Potter books,” ShowbizSpy, December 31, 2007, available at http://www.showbizspy.com/article/57235/jk-rowling-speaks-out-about-the-depression-that-inspired-her-to-write-harry-potter-books.html (“I just thought I want to write so I wrote the book. What was the worst that could happen? It could get turned down by every publisher in Britain. Big deal.”)

[15] We do not know that the copyright industry, which relies on generating a few great hits each year, is bringing the best products to our attention or rewarding the worthiest creators (however you want to define these terms, other than self-referentially as “those generating the most money”).

[16] Even primary authors may sometimes be harmed by the limitations placed on secondary authors. Depending on their contracts with the buyer (a movie studio, for example), the primary authors of a work may be prohibited from being able to use the same characters or the universe in another work during the copyright term. Primary authors may also suffer because their creations will die due to the lack of support from secondary authors. After initial publication, their books may be locked away in the back catalogues of the publisher for the remainder of the copyright term – which lasts beyond their death – and the passage of time and changes in rights holders may “orphan” their works so that no one is quite sure whether they are still under copyright and thus will not use them as sources for new works. By the time these works are finally freed from the shackles of copyright, no one may be interested in them any more (whereas if secondary authors were allowed to create new works based on them, perhaps those works could have grown into another lasting epic).

[17] My proposal (and some of the discussion leading up to it) is in part inspired by the work of Professor Wendy Gordon at the Boston University School of Law. It is not identical to her proposal, however. See Wendy J. Gordon, “Harmless Use: Gleaning from Fields of Copyrighted Works,” in Symposium When Worlds Collide: Intellectual Property at the Interface Between Systems of Knowledge Creation, 77 Fordham Law Review 2411 (2009).

[18] Verbatim copies that add no quantum of originality, of course, would still be forbidden. However, note that I would consider verbatim copying in an entirely new context (such as lyrics being quoted in a novel) to be sufficiently transformative to constitute a new derivative work.

[19] An alternative way to describe the proposal is that it permits and encourages competition in the marketplace of ideas – for readership and mindshare – without permitting full competition in the marketplace of money. Challengers would have to enter without a profit motive, though the incumbent may be economically benefited or injured by the challenger’s work. In a way, the proposal puts to the test my earlier assertion that many artists are not motivated primarily by the promise of financial gain: only secondary authors who fit that vision of creativity would benefit from the proposal.

[20] Often, secondary authors on the Internet see a gap between the law as it is on the books and the experienced reality: many instances of secondary authorship exist in a gray zone because the primary authors are not aware of them or provisionally tolerate them until they become “too popular” or say something the primary authors disapprove of. Such a gap surely contributes to a sense of alienation and contempt for the copyright laws.

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Author’s Note:

I am grateful to James Grimmelmann and Lisa Tang Liu for reading and commenting on earlier drafts of this essay.