There’s a famous phenomenon in copyright known as the orphan works problem. It refers to the situation in which the copyright owner of a given work cannot be found. This effectively prevents others from using such a work as part of a new project. For example, if you want to make a movie based on a novel, you must first get permission from the novel’s copyright holder. But if the novel is an orphan work, then you can’t even find the copyright holder. Technically speaking, you could proceed without permission — but you would do so at your own risk. The copyright owner could emerge at any time and demand penalties. You might end up having to pay damages; worse, you might have to abandon or censor your derivative work, no matter how much effort you’d put into it.
Related to the problem of orphan works is another problem, much more serious, yet much less discussed. I call it the ghost works problem. Ghost works are all the works that never get made in the first place, or are made but not released, because copyright concerns prevent them either from being started or from being distributed. Every project that dares not base itself on an orphan work becomes a ghost work, but there are many more ghost works beyond that. Indeed, it would be fair to say that today most works are ghost works. That is, most works either don’t exist or are not accessible, because copyright obstructs them. Whenever you walk into a bookstore, survey the shelves around you and imagine them to be 90% empty, for in a sense they are.
That might sound surprising. After all, the shelves look full, don’t they? To see why they are not, let’s start with an inverse example: a classic work that (fortunately) isn’t a ghost work, but easily could have been, had its authors lived under the modern copyright regime.
In April 2007, the singer Max Ziff and I gave a concert at the Berkeley Piano Club, in Berkeley, California. We performed one of the great works of nineteenth-century German song: Die Schöne Müllerin, Franz Schubert’s musical setting of twenty poems by Wilhelm Müller. Müller and Schubert were not a team, though. In fact, when Müller wrote the poems, around 1820, it was with the intention that an entirely different composer, Ludwig Berger, would set them to music, which Berger did. Müller and Schubert never met, and Müller apparently never even knew that Schubert too had set his poems to music.
Not that Schubert was trying to hide anything from Müller. It was simply that, at the time, there was no cultural expectation that one must ask permission before making a derivative work from someone else’s original work. Müller’s poems, having been published, were now considered part of the common culture, and if composers wanted to write songs based on them, they were free to do so. To our eternal benefit, Franz Schubert had this freedom: Die Schöne Müllerin is a truly inspired piece of music, one that has influenced generations of singers and composers.
Our concert thus depended on the public domain in two ways. One way is obvious: Die Schöne Müllerin is, legally, in the public domain today, so we are free to perform it without arranging royalty payments to anyone. But there is a deeper dependency, too: this music would not exist in the first place had there not been a healthy public domain at the time the poems were written.
Imagine if Müller and Schubert had lived in the present day, instead of the early nineteenth century. Müller writes his poems, intending for Ludwig Berger to set them to music; Berger does so. Then a mostly unknown composer, Franz Schubert, appears out of the blue, wishing to set them to his own music and asking Müller’s permission. But Müller can’t give permission — he doesn’t own the copyright anymore, his publisher does, and the publisher, not wishing to encourage competition with the Berger settings, is inclined to refuse. Perhaps Schubert could pay for the privilege? But no, he doesn’t have those kinds of resources. Or perhaps he’d like to negotiate a royalty-sharing arrangement? But Schubert has no lawyer, and no head for haggling over contracts. He’s a composer, not a negotiator. Well then, he is free to set the songs for his private enjoyment (that’s “fair use”) but he certainly may not distribute them!
In all likelihood, things wouldn’t even get that far, of course. Instead, Schubert would know in advance that he cannot always follow where his inspiration leads, when where it leads him is into someone else’s copyrighted territory. Instead, he would just accept that the work of most of his contemporaries is out-of-bounds for someone like him, an unknown with no resources. And so we would not have Die Schöne Müllerin… nor Die Winterreise (another of his song cycles), nor many of his individual songs, which often set the work of living poets.
And that’s just one composer.
This exercise in imagination highlights one of the most insidious aspects of the ghost works problem: that it cannot be easily measured, no matter how great its magnitude. We can point to an existing album, a movie, or a book and say “There! There is that thing, that physical object, whose existence is beyond doubt.” But how can we point to something that is not there? How can we know what we do not have? We can only measure the loss indirectly; nevertheless, there is compelling anecdotal evidence that it is large.
Some of this evidence comes from the world of free and open source software, where it is traditional not only that the software itself be released under open copyright licenses, but that the software’s documentation be similarly licensed. This means, among other things, that derivative works such as translations can be made by anyone. In theory, this could be done without permission or cooperation from the original authors, but in practice translations are almost always authorized and approved, because cooperation is easier than territorialism.
The result of this freedom is that the documentation for virtually all major open source programs, and many minor ones, has been translated into several languages, usually enough languages to cover the vast majority of the software’s user base. Furthermore, the translations are usually kept up-to-date as the software and its documentation evolve.
This phenomenon is not limited to technical documentation. In late 2005, I published a book entitled Producing Open Source Software: How to Run a Successful Free Software Project. The publisher, O’Reilly Media, although marketing the book through traditional trade and bookstore channels, agreed to release it under a permissive (open source) copyright. Accordingly, I put the book’s full text online at producingoss.com — and pretty soon people showed up to translate it! I did nothing to seek out translators, except release the book under a liberal license; only after the first translators showed up did I put a notice on the front page soliciting more. Now we’ve got a German translation under very active development (with two separate translators who only met through cooperating on this project), a Hebrew one happening somewhat more slowly, and some recent arrivals looking at doing a Chinese version.
This is happening with a book that has, let’s face it, a fairly limited audience. Not only that, it’s the second time this has happened to a book I’ve published (see cvsbook.red-bean.com). Once could be coincidence; twice is starting to look like a pattern. And I’m only using my own books as examples because they’re the first thing that came to mind. There are hundreds of open source projects that could tell a similar tale about their documentation. The lesson to draw here is that, were it not for copyright restrictions, most books in the world would be translated into several languages. After all, the better the book, the more some multilingual reader will be motivated to translate it. The translation doesn’t have to be perfect, because there will also be people who show up to edit it. These projects tend to self-organize in exactly the same way that open source software projects do.
But under the current copyright regime, if you want to release a translation of a book that was published under traditional restrictions, you don’t just sit down and start translating. Instead, you start by negotiating the right to translate — a process which is completely unrelated to actually translating, and is also daunting, time-consuming, and likely to fail. It’s hard to imagine a more potent gumption sink than “rights negotiation”. The mere prospect is enough to shut down most translation projects — which is why I look at those bookstore shelves and see them as mostly empty.
For those who leave rights negotiation for later, the penalties can be severe indeed. Recently, I opened the April 2nd, 2007 issue of the New Yorker to see the following notice from David Denby in the “Critic’s Notebook” section:
In 1977, Charles Burnett, a U.C.L.A. film student, made his thesis film, “Killer of Sheep,” a fictional portrait of life in the Watts section of Los Angeles, for less than ten thousand dollars. The film has attained legendary status, but it has never been released theatrically before, because of music-rights issues. Burnett used many kinds of African-American music on the soundtrack, and the movie itself has the bedraggled eloquence of an old blues record. […]
In other words, for thirty years — long past the time when its topics were contemporary, long past when it could have had the most impact and been most appreciated — a great film has languished unseen. For thirty years, Killer of Sheep was a ghost work. And to what end? Movie licensing royalties are probably not why those musicians recorded that music, and are in general not a significant part of most musicians’ incomes. That a few musicians occasionally hit the royalties jackpot is indisputable, but does that skewed and random result really justify the censoring of a film for three decades?
Now sensitized to the presence of ghost works all around us, I usually don’t need to go out of my way to find examples. Instead, I can depend on them finding me with some regularity. Such was the case here. While writing this article, I opened my New Yorker and saw the above piece. I could have chosen from several other examples that crossed my path in the last week — and those are just the stories that someone bothers to tell. This fact alone is a clue to the size of the problem.
If one person can gather a few examples of ghost works without even trying, many people working together can really start to catalogue the problem. Maybe after we have enough we’ll start to notice some patterns. So please keep your eyes open, and if a ghost work crosses your path, let us know. Our contact page is http://www.questioncopright.org/contact.
Remind me what the penalty is these days for an author simply to create an unauthorised derivative work?
Does the author still get prosecuted if, beyond their control, some well meaning friend of theirs anonymously leaked their derivative work into a file-sharing network?
And tell me if the law would confiscate any funds from the author if they obtained funding for new works from fans of their unauthorised derivatives?
Somehow I think copyright is a wet paper bag on so many levels.
The problem is that so many people have been hypnotised to believe it’s an electrified steel cage.
Time to question copyright…
Do you think that’s air you’re breathing now?
“Penalty for unauthorised derivation” is actually my post. I assumed I was already logged in.
Thank you for this!
I’m a theater performer, and I write and choreograph my own work. I get artistic satisfaction from this process, but I used to get satisfaction from what I called “theater collage.” I would create shows using excerpts from previously existing texts (encyclopedias, obscure novels, treatises on the nature of beauty, etc.)
Once I realized the legal headache that was in store for me if I ever wanted to show my work to a wider audience, I gave up the project I’d been working on for a couple of years. It’s a shame, really, because I chose those excerpts precisely because I was a fan: they moved me, excited me, and provoked me. I would have liked to have given them greater attention through my work.
Even now that I’ve turned to autobiographical source material, I often hear music which I would love to incorporate into my shows. But I don’t want to let myself get too attached to a piece of music in the development of my work, just in case I won’t be able to get permission to use it come performance time.
This means that I can’t respond or relate to the music in a nuanced or complex way.
It’s so frustrating, and so backward.
Good art inspires me to respond with my own art, and I’m constantly having to squash this inspiration.
Jessica Ferris sent in another example by email:
http://library.duke.edu/blogs/scholcomm/2007/04/21/wkrp/
What’s happened here is pretty alarming: for years, the DVD release of the old TV show “WKRP in Cincinnati” has been delayed by rights negotiation issues — not the rights to the TV show itself, but to the music played in the background on the show, which was mostly contemporary pop music of the 1970s and early 80s.
Now the issue has been resolved, in an ugly way: the DVDs will be released with generic (but unrestricted) elevator music replacing the actual pop songs that were heard when the TV show aired live. Much of the flavor of the original show will therefore be lost. What appears on the DVD will not be the original, nor will it be a derivative work in any meaningful sense, because these mutilations are being performed for legal reasons rather than artistic reasons.
“WKRP in Cincinnati” has become a ghost work.
Thanks, Jessica, for sending that one in.
The exact penalties in your specific scenarios would probably depend on details of precisely how and in what order things happened. But penalties for the (derivative) author aren’t the only bad outcome here. Remember that the Internet service providers and other intermediaries involved would receive (and have to comply with) takedown notices, other people caught in the net might have to waste time answering a lawyer’s questions, etc.
I wish current copyright law were a wet paper bag, but in fact it’s quite powerful, when applied by people who know it. There’s nothing wet-paper-baggish about receiving a letter saying you’ve just been sued.
Let’s put it this way, copyright is as effective as a wet paper bag in terms of keeping published IP under the exclusive control of the copyright holder.
It’s only dangerous in the same way that crossing a main road wearing a walkman with your eyes shut is dangerous, i.e. if you keep your wits about you, eyes and ears open, it’s pretty harmless.
We still haven’t established whether there are actually any penalties for creating an unauthorised derivative (prior to its ‘accidental’ unauthorised publication), let alone what the penalties would be, and what evidence an author provides to make themselves culpable (apart from tolerating people identifying them as the author).
Check this out for an example of the repercussions of creating an unauthorised derivative:
THE GREY ALBUM LEGAL BATTLE SUMMARIZED
Future creators of ‘unauthorised derivatives’ could adjust their strategies if they prefer to avoid the promotional benefits of litigation directed against them.
A world in which artists have to do their work surreptitiously, or pretend that the release of their work was “accidental”, is not exactly a compelling goal!
A good test of a law is whether it generates counterintuitive behaviors. If artists must regularly try to avoid association with the distribution of their works, then something’s wrong.
There is no penalty for creating a private but unauthorized derivative work. There are penalties for distributing it, and if it can be shown that you could reasonably have expected it to be distributed, or that you did not take sufficient precautions to prevent it from being distributed, then of course there’s a case against you, under current law.
Be careful of pointing to things like the Grey Album as examples of how takedown doesn’t work. There’s a selection bias there: by definition, you haven’t heard of the works where the takedown effort was swift and successful. Part of the point of collecting stories of ghost works is to bring attention to things that never got the kind of coverage the Grey Album did. They’re the problem, and I’m pretty sure there are a lot more of them than there are Grey Albums.
Until copyright’s abolition, we have to deal with the world as it exists today, which includes its sociopathic legislation.
Pragmatic strategies may well be far from compelling, but with the assistance of the Internet (viral marketing/promotion, etc.) they could be refined until they become attractive and rewarding.
I encourage and welcome refinements.
And as you say, if people consequently engage in counterintuitive behaviours, then it can only help to demonstrate that copyright law is fundamentally unethical.
Question: how many ghost works have the Polish police created by cracking down on volunteer translations (in this case, for subtitling movies)? Here’s the story:
http://yro.slashdot.org/article.pl?sid=07/05/18/1428207
We’ll never know the answer, of course, but considering how many foreign movies are shown in Poland (a lot), that probably means many potential translations will now be suppressed or never started in the first place.
What a great social policy: let’s take people who are willing to devote their own time and energy to making cultural artifacts more accessible to everyone, and threaten them with jail. Brilliant!
Why is Burnett’s student film an example of why copyright should be abolished?
If we shortened copyright terms back to their original lengths it would be able to be distributed today.
If we made exceptions for student works that were shown for free, the problem would be solved.
If music copyrights had similar standardized royalty terms for use in film as they do for use on radio, problem solved. He uses what he wants, pays a percentage of gross receipts to ASCAP or another such organization, and he’s good.
If the film was that great, an altruistic soul or money-motivated distributor could have thrown some resources at dealing with the music clearance issues. And its scarcity may be one of the driving factors of its legendary status. If we could all see it, it might be that 99.9% of those who saw it would walk away understanding why no one ponied up the resources to get it released sooner.
And last, but not least, Burnett could have allied himself with some blues musicians to generate original music for the film or licensed stock music at reasonable prices. Not being able to use the exact music you want is only one of the many compromises an artist may have to make to get his work to market, and a lot of them are not related to copyright.
As for book translations… You wanted a more permissive license, you got it. Others might not. Translation is an art (the NEA actually gives out grants for it) and reading a bad translation can be as painful as listening to a 6-year-old play the saxophone. Honestly, as an author, I’d want to screen who was translating my work, and I’d rather have no translation than a bad translation out there.
That last paragraph is exactly the kind of thinking I’m arguing against. Why should the author screen out any translators at all? Why not let the readers do that? (I mean readers as supported by reviewers, endorsers, word-of-mouth, and all the other filtering networks already out there, of course.)
Maybe as an author you’d rather have no translation than a bad translation, but some readers will disagree, and the question is, why do you get to decide rather than them? Maybe you’ll have different ideas of what’s a good and bad translation. When the author (or, more often, the publisher) gets exclusive right to decide who translates, we have a monopoly situation, and monopolies typically do not lead to higher quality.
You write: “As for book translations… You wanted a more permissive license, you got it. Others might not.”
The point is that when person A prefers a permissive license, that doesn’t take away person B’s ability to do anything; whereas when person B prefers a restrictive license (and gets it), that takes away person A’s ability to do things. The two situations are not symmetrical; it’s not an “I like asparagus but others might not” thing. If you don’t like asparagus, you don’t have to eat it; but why is it that if you don’t like asparagus, I can’t eat it either?
When you say that “others might not” prefer a more permissive license, you’re talking about what the copyright holders of those works prefer, but remember that I still prefer a more permissive license for those works too, and what I’m contesting is the idea that the copyright holders’ desires should automatically trump mine just because they were in some way involved in the works’ creation.
The Copyright Office has completed its study of problems related to “orphan works”—copyrighted works whose owners may be impossible to identify and locate. As requested by Senator Orrin Hatch and Senator Patrick Leahy, the Office submitted its Report on Orphan Works to the Senate Judiciary Committee on January 31, 2006. The Report is also available for download on this page in two versions, the Full Report with Appendices, and the Main Text (no appendices).
More info here : http://www.copyright.gov/orphan/
Thanks!
Thank you!
MTV’s animated show Daria is another example of this: You can’t buy most of the show on DVD because of the use of background music. Most of it’s 90s alternative, which definitely adds to the atmosphere but it is under copyright from enough companies that MTV just never released it. A few episodes were released with generic music, which was as bad as you would expect.
So now it’s on youtube, but has been taken down by Viacom a few times already.
If only Viacom would realize that I would buy it if I could, but I can’t, so this is the next best option!
Oy, infuriating.
My son’s choir director was interested in taking an unpublished work to a district music contest. When he contacted the district people, they sent him a mountain of paperwork to complete in order to receive permission from the publisher in order to perform the work. The problem was, there was no publisher. He, in turn, directly contacted the group who created the piece asking for their permission.
They agreed to allow him to perform the piece, in return asking only for a copy of the district performance for the group’s enjoyment. I found that to be very refreshing and genuine of the artists.
However, it still remains to be seen whether or not the district will allow him to perform the piece considering the fact that their is no official publisher agreement on file. Sad…
You make the comment that this person “could have allied himself with some blues musicians to generate original music for the film or licensed stock music at reasonable prices”.
The problem with this is two-fold: first, there’s a certain power to using the music that the current (or previous) culture is steeped in. It creates a sense of placement, and reinforces identity with those who listen to that kind of thing. It also introduces people who aren’t part of the culture to a different culture–due to how and where they were raised, or even due to being born into a different decade. You don’t get that if you use stock music.
Second, There’s also an affordability issue. Burnett probably didn’t have the resources to ally himself with blues musicians, or to purchase stock music. Getting such resources would be doubly difficult if the film were truly mediocre, or even just *perceived* to be mediocre by the current producers.
Having said that, your objection that the movie may be mediocre rings hollow: if it were all that mediocre, why would anyone give a darn about a college kid making a stupid movie that no one is going to see? But if it’s not mediocre–and the best people to decide that are *audiences*, and *not* producers–then why should it be held back due to stupid royalty concerns?