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Mark Helprin’s copyright tale in the New York Times
May 20, 2007 | 10:19 am
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By David Rothman
The atrocity of the day is novelist Mark Helprin‘s plea for eternal copyright, and it comes to you courtesy of the conservative Claremont Institute, where Helprin is a Fellow.
“Conservative,” of course, isn’t the word to describe Helprin’s radical wishes. Never mind the American tradition of limited copyright terms as a way to promote the arts and the rest. Halperin acknowledges certain social benefits from this rather Jeffersonian philosophy, but in the end seems to regard literature as like real estate—something that the proprietors should be able to own forever. Odd. How many houses are built partly with timber from the one next door (a metaphor that if not used before, should have been)? Even the headline of the Helprin piece is a touch misleading: “A Great Idea Lives Forever. Shouldn’t Its Copyright?” You don’t copyright ideas per se—you copyright the expression of them, and in fact, Helprin’s own essay notes: “Mozart and Neil Diamond may have begun with the same idea, but that a work of art is more than an idea is confirmed by the difference between the ‘Soave sia il vento’ and ‘Kentucky Woman.’”
Close to home
For me, the above debate is more than theoretical. I’ve worked on and off for years on some fiction that I’m now marketing, and that, yes, has commercial potential, according to some pros who’ve seen it. But, no, I haven’t created any land or buildings. From the very idea of a Washington novel (thank you, Henry Adams) to a Robert Penn Warren quote (“Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud. There is always something”), I’ve benefited from the genius of others within the bounds of ethics and fair use. In doing this, I’ve actually been far less reliant on past work than, say, Jon Clinch, who built a well-reviewed book around Huck Finn’s father.
Even publishers and Hollywood studios—in fact, especially them—can benefit from the public domain. While you can’t copyright public domain works themselves, you can copyright annotations, the forewords and the rest. So now there are new editions of Jane Austen, complete with cover art to make her a little sexier. E-books’ improved capabilities for annotations should just enhance publishers’ opportunities to profit off the public domain. What’s more, you can take a public domain work and make a killing off the movie version as Disney has again and again. Perhaps studios and the rest should be aggressively lobbying for shorter copyright terms. Given the ephemeral nature of most Hollywood movies, would eternal copyright be that profitable for them—when right now they can blithely pick up plots and language from Shakespeare or Dickens or their successors? I know: A few movies such as It’s a Wonderful Life will go on and on. But I still suspect that shorter copyright terms in the end would be better for studios, which would have more books available for adaptations. From a Hollywood perspective, the advent of e-books might actually serve as an argument for shorter copyright terms. Book publishers may be mistakenly tempted to aim for longer copyrights, now that they don’t need physical warehouses. Meanwhile, if nothing else, shorter terms would open up more possibilities for Hollywood from among the vast number of obscure but brilliant novels whose copyright-holders can’t be traced.
Like the publishers and Hollywood, I myself am pro-copyright, and if I’m the very rare exception and my book is a best-seller, then I’d want the royalty stream to outlast me, for the benefit of my family and (if the money is substantial enough) charitable causes. But under Bono, current terms are already long enough, life and 70 years. The goal of copyright should be to provide creative incentives—easily enough in the pre-Bono days—rather than to enrich my heirs forever.
Another borrower
Meanwhile, lest Mark Helprin misunderstand the usefulness of borrowing within the limits of fairness and propriety, let me treat him to an example—Mark Helprin. Wikipedia is hardly the ultimate literary authority, but I can’t help notice the following about Winter’s Tale:
Plot introduction
The overall feel of the novel is that of magic realism, similar to that found in the works of Gabriel García Márquez or Salman Rushdie. The book is in part a paean to New York City in the same way that Garcia Márquez’s One Hundred Years of Solitude is a tribute to Colombia.
Explanation of the novel’s title
The title Winter’s Tale is a reference to the Shakespeare play of the same name [with "The" in front of "Winter"]. In that play, as in this book, a major character disappears for years, only to return after a long and unexplained absence, unharmed, transformed, and redeemed.
No ifs or buts: Helprin has been borrowing a few timbers from his neighbors’ houses. Granted, he’s presumably done so within fair use in the cases of Márquez and Rushdie, and in Shakespeare’s case, no copyright exists to fret over. But give the copyright extremists a little time. A future Helprin just might want to ban the very practices that have enriched the current Helprin.
Addendum, May 22, 2007, 11: a.m.: Just to make it clear to people outside publishing, it’s now perfectly legal to use others’ titles. What’s more, I doubt that Helprin made major use of others’ language beyond the title. But his call for eternal copyright will only encourage other uber-hawks to come out of the woodwork on such issues as the use of similar titles and ideas. And combined with eternal copyright, that could have made Winter’s Tale a more expensive book to publish—given the need to pay Shakespeare’s heirs for the derived ideas, not just freedom to use the title.
Correction: The Times’ pay wall, in regard to opinion articles, applies only to regular columnists. Thanks to Greg Spira for the catch. I’ve changed the lead.
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Comments:
When works enter public domain, everybody gains.
An example of that is the report that back in the early 1990s, when James Joyce’s works (briefly, before being snatched back again into monopoly) entered public domain, there was a Joyce renaissance. Even Penguin, who had the contract with the Joyce estate and had been (and would again become) exclusive monopoly publisher of the works, sold *more* books by Joyce than they had in the years before.
I don’t know, I would want my heirs to earn their own money, the same way I have to
Were I to produce a work that is commerically successful, I would be quite happy with a copyright term of ‘my lifetime plus a decade or so for my heirs to cash in on the mystique of my being dead now.’ But the idea of eternal copyright defeats the whole spirit of art as I understand it: the timbers from my neighbours house, as you put it. As for my heirs, they can write their own damn novels if they want to make their money off of literature 
I am disappointed to read that Mark Helprin wants to lock down copyrights – not that he wishes so, but that the examples and arguments he used were so vague.
First, my view is that intellectual property requires limited protection. I suppose it is debatable whether it should be 5 or 25 or the author’s lifetime, although I wish it were fewer rather than more years. I used to think that copyright should be revoked and the work enters public domain. Now, with the advent of Creative Commons, I wonder if it isn’t worthwhile to have “expired” works transfer into CC. This would allow for intellectual property to sire intellectual progeny; the catch is that the work itself is the “property” of the author. He can bequeath it as any other physical object to his heirs. However, at a certain point, he can only control the expression rights of that work, rather than limit the derivatives of that work. Using Helprin’s work as an example, he and his heirs will “own” _Winter’s Tale_ – that is, the literal manuscript that was submitted by Helprin to his publisher. They control reprints, they can shop it around to different publishers, they can sell the movie rights, they can sell merchandise related to it, and so on – for all purposes in perpetuity. However, the IP eventually also is cross-licensed into CC. Which means, I suppose, that other writers can base “fanfics” and unauthorized sequels to it.
Not that I care for these sorts of outcomes; I think migrating these works into the CC (or public domain) will solve problems of expressing closely related ideas. It makes it possible for these close derivations. The idea is that a _West Side Story_ can be produced from _Romeo and Juliet_ and is a separate entity, albeit with the same storyline.
I think this example already highlights how shoddy the argument Helprin used is. The fact is, there is nothing new under the sun. Brothers in strife, with one killing the other out of jealousy? Is that not Abel and Cain? How should intellectual property be defined so that it is limited? The problem isn’t whether we need to protect IP but how limited is that IP defined so that others are not encumbered? As David Rothman noted, copyright protects the expression of the idea. Hence, my suggesting that we literally protect the words contained within the manuscript. If someone wants to turn _Winter’s Tale_ into a movie. Great for Helprin. But if Helprin can’t close the deal, and the producers wind up with a movie with a similar plot? That can’t be helped. Who’s to say that the story wasn’t already written by someone who has never heard of Helprin?
I would say there are only 4 themes in all literature and art. Boy meets girl. Boy meets boy and they fight. Child leaves home and grows up. The fallen finds redemption. The only thing that differs is the way these ideas are embodied. Of course, there are subthemes and recombinations of these ideas (like a child’s interaction with parents, arguments that are passed on through generations, etc.) The point is that, at the most basic, we have already seen all these themes and we are only reading the same book with different details.
As Helprin noted, he benefited from other works even if it only helped Helprin make allusions. The plot of his book is already quite similar to what others have written – he admits ripping off Shakespeare. The fact that he wasn’t specific enough separating what he did from what he wishes to prevent makes his op-ed a bad one. How far does one go in preventing copyright infringement? Is having a similar plot enough? Is it having the same story, done with a different historical setting enough? Can one use the same McGuffin? Can one use the same characters? What if there are competing novels based off the Knight Templars (like The Templar Legacy, The Da Vinci Code, Foucault’s Pendulum. Brotherhood of the Tomb. These books use the same device: Jesus was a man, had a life, and his sacrifice was something else all together.)
The fact that Helprin avoided mentioning what constitutes IP in terms of literature is distressing. It is as if he hasn’t thought about what he wants to own, from his books. If you ask me, it remains easiest to limit ownership of IP to that specific piece, rather than something as abstract as fictional characters and devices.
David, you’d better be careful. One of those little icons at the bottom of your articles looks suspiciously like Mickey Mouse
Beware of the Disney Monster.
Joanna: Right you are. Countless great books pick up at least a few timbers from others, either the ideas or (in the proper context) some actual words. By modern standards, in fact, Shakespeare was a plagiarist (which isn’t to justify rip-offs—see a related radio show from WAMU in Washington, D.C., featuring four academics).
Joseph: I guess you and Joanna and I can all go to jail together
Pond: Excellent point about Joyce!
David
The slashdot thread on this opinion piece yielded an idea for an alternative intellectual property system: Tax it like real property.
Essentially, when a person creates a piece of IP–patent, trademark, or copyrightable work–they hold all the rights to that IP. After a short period of tax relief, each year assess an intellectual property tax unless the IP is released into the public domain. Thus, after a period when an invention, or idea expression is no longer generating revenue it becomes a tax burden which can only be escaped by selling the IP or releasing it to the public.
I found it interesting, at any rate.
– C
The article is not behind the Times’ pay wall for opinion articles; only the Times’ regular op-ed writers – their op-ed columnists – have their works behind that wall. Article by op-ed contributors to the Times are never behind that wall.
I also read the Slashdot comments. I don’t know if taxation is the right thing to do. Taxation is already the reason that book publishers don’t keep any old books in stock. As I understand it, they get taxed on this inventory, instead of being taxed on the books they actually sold.
That brings up an interesting question. If publishers offer ebooks, which are nothing but data, wouldn’t they be able to offer books forever, without the tax burden? If so, books need never go out of print again.
“Freeing” a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses who will continue to profit from, for example, “The Garden Party,” while the descendants of Katherine Mansfield will not.
This above quote from the article suggests Helprin hasn’t a clue about ebooks. He seems to view “public domain” as letting publishers offer (and profit from) low cost print editions. We should not scorn him; instead, we should pity his ignorance.
I wonder if Helprin isn’t serving as a stalking horse for patents. With all due respect to Helprin, not many published works still have value after a zillion years. But if patents didn’t expire, that would really be a wealth transfer. For those who believe that intellectual property is just property, patents and ideas do come first.
Rob Preece
Publisher, http://www.BooksForABuck.com
Great point, Rob. Of course, given the ignorance shown in the article, I wonder if Helprin has really thought through all the ramifications of his extremist stand. Furthermore, if someone at Claremont has patents in mind, they’re dong a good job of concealing. See a Google search on the Claremont site. – David
Another thing, you and your heirs do still own the ‘physical’ spoils of your work. I remember reading that J.K. Rowling wrote all of her manuscripts by hand. I imagine those physical manuscripts, which she could of course will to whomever she wishes, would fetch a good price, no matter whomt he cppyright ‘belongs’ to at that point. I also know that Lucy Maud Montgomery’s heirs continue to profit by merchandising tours, dolls and ancillary merchandise as being ‘official’ notwithstanding the works being in the public domain. If my hypotehtical heirs wanted to cash in on my hypothetical cult novel, they could always package a new edition with an intro (‘by the author’s own son/grandson/nephew!’) and sell that (just as the publishing houses could of course sell a plain vanilla one with their own intro). Clever merchandisers will always find a way to profit off of things they wish to profit on.
It reminds me of the desperation through which the music industry is clinging to their outmoded business model and saying it’s the only way while people like Jonathan Coulton are doing just fine forging a new way. Or the way the publishing industry is saying e-books are ging to kill us all while podcaster Scott Sigler just signed a six figure deal. As I said
The clever will always find a way to do whatever they want to. If J.K. Rowling thinks she can stop people from writing future derivative Harry Potter works by killing everybody off (as I have seen her allege in interviews) than she has a very limited business imagination and she is being ridiculous. Killing everybody off now doesn’t stop a future Gregory McGuire from writing a “Wicked” style account of Dumbledore’s childhood. Nor does it stop anyone from reviving any of the other characters either—the book is about magic, for heaven’s sake 
And a hundred years from now? It would be fair use. J.K.’s great-grandchildren can earn their keep just like the rest of us. And if they are so worried about the potential of a “Dumbledore’s childhood” book, let them write it themsevles and profit accordingly.
Sorry to be so long-winded, David
I guess I am just passionate about this topic. And I should add, I am a writer too and it does not threaten me at all to suppose that my work will enter the public domain after a reasonable period.
I wonder if I gave the impression I support perpetual copyrights. I do not. Since there is an inverse relationship between long-windedness and effective information transfer, I shall have to retry.
Copyright is not going away. Helprin’s article suggests that he has no idea what it is he wishes to protect. As Joanna points out, there is the physical fruits of the labor that is protected. Ingenious authors and heirs can find some way or wringing more money from this work.
Fine. Of course, that’s what I want. But if this is the case, what does copyright protect? Plagiarism? Derivatives? Does IP cover the characters? The plot? The McGuffin devices used the novel? Helprin’s piece is clear on one thing: he doesn’t know what it is he’s protecting. And the real problem is that when the copyright is enforced, there are only a few people who have to power to decide whether the infringement rises above some threshold which he deemed outright copying.
My point is that authors ought to have their works protect insofar as it allows them to send it to a publisher and not have someone rip off your cover page and stick their own on it. But that’s already the case. However, the types of arguments Helprin makes seduces rational people – because he is right. There is that strong desire to pass wealth off to the kids. So long as Helprin confuses protection of derivation and protection from plagiarism, and he stands on a higher and more visible soapbox than you and me, then we have that huge duty to rephrase the argument.
Yes, JK Rowling is short-sighted in that she does not wish what amounts to fan fiction and unauthorized works. I don’t care about the argument that others can or cannot use the characters from her book. I do care when this argument will eventually be subverted by IP lawyers to bring lawsuits against people who write about children wizards who go to school. The problem with protection from derivation is that the “protection” is extensible. I fear that lawsuits and enforcement practices will lead to broader and broader definitions of derivatives. Which means that it is only a matter of time until someone makes the silly (in practice), but legally correct argument, that all talking animals are derivatives of Mickey Mouse. Or that DC can sue the pants of Marvel and all other comic publishers because all superheroes with superpowers are essentially knock offs of Superman and all superheroes without superpowers are copies of Batman.
And since public domain has too much of the “freedom from” rights associated with it, one must re-pitch this argument to include Creative Commons sorts of “affirmative rights” – such as the ability to keep the central work intact – and explicitly, if redundantly, let authors know that their books are sacrosanct – but allows for original works based on the same universe. That is, in a sense, the price one pays for being an author. Who’s the say that the “seeding” didn’t come from a piece that was pivotal in the artist’s development?
I admit I haven’t said anything different from pro-CC folks. I wrote my comment because I was distressed at the confusion on Helprin’s part about what he wants to protect. I think it is important to point out, if redundantly that without something like public domain or CC, we’ll be burdened with lawsuits from lawyers who aggressively cast a wider net to include more and more general cases (i.e. again, suing an author for writing a story that includes the basic plot of “boy meets girl”.) And you know if it can be done, it will be done. It is a matter of time.
Robert Nagle: Indeed. We *have* _The Garden Party_ on our site, so that anyone can read it for free online. And no, we don’t make a dime off it, and that’s just fine with us.
http://digital.library.upenn.edu/women/mansfield/garden/garden.html
I think J.K. Rowling might be a sort of Nimby-ism (not in my backyard). I wonder, if you got her on a panel discussion with the “Wicked” author, what she would say. After all, what he did (using Baum’s work as his starting point) was perfectly legal. But obviously, she does not seem to want Dumbledore’s childhood (for example) to be imagined 1000 years from now. But I wonder if she would even have precedent to make that illegal. There are so many derivative books already out there (Wide Sargasso Sea from Jane Eyre, Wicked from Wizard of Oz, Phantom from Phantom of the Opera, Coetzee’s ‘Foe’ from Robinson Crusoe etc.) Are those ‘fanfic’ or ‘fair use derivative works? Coetzee won a Nobel Prize! As I understand it, the purpose of cipyright, of the establishment of the public domain in the first place, was to promote creativity—not ‘lock down the concept of talking animals forever’ but ‘allow you to get fair profit from your idea before it goes into the common pool of human knowledge where anyone can use it’ Could I or should I copy out Wuthering Heights word for word and try to sell it as my own? No. But can I write about Heathcliff’s father? Yes. Why not? It doesn’t diminish the original work, which is there for people to read. It just creates more literature, which can’t be a bad thing.
I thought this was a ridiculous and self-defeating essay – and blogged about it over on ACRLog.
On taxing backlist books–iirc, the reason publishers were required to pay taxes on their warehoused inventory was because they wrote it off as a loss, then continued to sell it. When told they couldn’t do that, it did lead to publishers pulping more books and books going out of print more quickly. But I kind of see why it happened. (Now, of course, they could just keep the .pdf file and print on demand, never give up their publication rights and never have to spend another dime, which is causing concern among authors. I wonder if first publication rights could last longer than copyright?
Joanna and Man Ching mention J. K. Rowling’s intense desire to maintain tight control over her literary creations. There is a fun article at a book review website that compares Jane Yolen’s novel “Wizard’s Hall” with the books of J. K. Rowling. The website claims that “the basic structure of the Harry Potter series” was “laid out engagingly, wittily, and poetically by Jane Yolen almost a decade before Harry made his debut in the muggle world.” Here is part of the description of Yolen’s work:
The article points out additional parallels; however, it does not claim that J. K. Rowling is a plagiarist. Instead it notes that “The formula is a time-honored one, combining as it does the camaraderie of the school story with the suspense and mystery of the fantasy story.”
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