Cathy Young argues that our current copyright system isn’t working as originally intended:
My argument: copyright law as it currently exists does the opposite of its original intent (as formulated in the U.S. Constitution, which allows Congress to legislate on copyright, and in the very first copyright statute enacted in 1790): to promote arts and letters and encourage learning, by giving authors an incentive to create new works by ensuring that they can fairly profit from their writings. (In olden days, it wasn’t at all uncommon for unauthorized editions of books to be legally sold with no profits going to the writer.) Today, copyright violation claims are commonly invoked to suppress new works — whether it’s 60 Years Later, The Wind Done Gone (the “Gone With the Wind-from-a-slave’s-point-of-view” novel that was finally declared legal after much wrangling in the courts), a production of a James Joyce play, or fan-made Xena: Warrior Princess videos on YouTube.
I agree. But Cathy also writes:
Would it really be perfectly fine, from a libertarian point of view, if, after the huge success of the first Harry Potter book, Joe Smith or Mary Jones quickly popped out a sequel before J.K. Rowling could publish the second one?
Well, I’m not a libertarian. But why not?
I’d suggest that Smith and/or Jones should be legally required to pay Rowling some sort of licensing fee if their book has a print run over a thousand copies in a year; and that the front cover include a clear (”not written or authorized by J.K. Rowling”), so consumers aren’t deceived.
But with that in place, I don’t see what the problem is. Few if any Harry Potter fans would have said “oh, why even bother reading the Rowling versions when they come out, now that quick knock-offs are available,” so it’s not as if allowing the knock-offs would deprive Rowling of her ability to earn a living.
Meanwhile, forbidding Smith and Jones from publishing their Harry Potter knock-off might well deprive them of their ability to make a living as Harry Potter knock-off writers, and it arguably infringes on their freedom of speech.
I can already hear people saying: “Who cares? Smith and Jones don’t have an original thought in their head. They don’t have a right to other people’s speech.” But some artists work best by reimagining works they already love, rather than by creating “from scratch.”1 Sometimes the result is a better work than the original — think of Stephen Sondheim’s great musical Sweeny Todd, which was adapted from a play. I think the culture be richer for it if artists who feel compelled to work with the books and characters they loved as kids, were free to do so, and to do it full-time if there’s enough of a market for their work.
Often, when I make this argument, people ask me how I’d feel if someone out there produced a sleazy porno Hereville comic. Well, obviously, I’d be appalled. But just because I find someone else’s work appalling, doesn’t mean it should be illegal.
If you haven’t traveled across many state lines, you might not recognize the Phantom of Phantom Fireworks. His blank-eyed stare greeted me from atop dozens of billboards throughout my road trip in May.
And that got me thinking; America needs a Guy Fawkes-esque Night in addition to our regularly scheduled 4th of July patriotic display of ammunition and hot dogs.
