The Craziness of Copyright Term Lengths

Last week, Random House, Simon and Schuster, and a few trustees and representatives for a few authors’ estates, sued two individuals that allegedly infringed the copyrights of famous authors by writing and publishing children’s books.

The authors are famous — Capote, Kerouac, Clarke and Hemingway — and the books are famous — Breakfast at Tiffany’s, The Old Man And The Sea, On The Road, and 2001: A Space Odyssey. The complaint alleges that the defendant’s have created derivative works of those novels by taking the “plot, settings, themes, sequence of events, and principal characters from each of the novels, wholesale, repackaging these copyrighted elements in condensed, abridged and illustrated form, and doing nothing whatsoever to transform, comment upon, or criticize them.”

Ideas can’t be copyrighted. General themes and scenes can’t be copyrighted. Plot, sequence of events, etc. can’t be copyrighted. But characters can be. And specifics of themes, plot, sequence of events, etc. can be. When someone attempts to “transform” copyright to a new work, its all about degree, facts and analysis when determining if the new work infringes the old. Just how similar is the work, and has the new author transformed the old work into something new?

The new authors here don’t appear that they’ll argue their works are transformative. (At this point we only have the complaint to reference, so we don’t know the defendant’s stance.) Their argument, so explained by plaintiffs’ complaint, is that the works are “guides” for children, similar to how Sparks Notes is a guide, and which contain the plot, characters, themes, etc. of the copyrighted work to explain it to children. It appears the “guides” here are simply condensed versions of the novels coupled with pictures and a fun cover.

The complaint is extensive, and the suit just underway, but one thing stuck out to me. These works are OLD.

In the complaint, the plaintiffs’ attorneys state that the defendant’s, if they want to make children’s books out of classics, should use books that are no longer under copyright and are available through the public domain.

So my thought: when are these books available? They were written ages ago.

Copyright term lengths are crazy. Most protection, dependent upon when a work was authored and when/if registered, will last for an incredible amount of time. Let’s look at the authors and books in questions here. Hemingway died 56 years ago, Capote 33 years ago, and Kerouac 48 years ago (Clarke died in 2008, so still recent). But worse still is when the works were authored. Old Man And The Sea was first published in 1952, 65 year ago; Breakfast At Tiffany’s in 1958, 59 years ago; On The Road in 1957, 60 years ago; and 2001: A Space Odyssey in 1968, 49 years ago.

The first US copyright law, passed in 1790, protected a copyrighted work for 14 years with the ability to extend the registration for 14 more years if the author was still alive. That’s reasonable. Since that time, subsequent copyright laws have extended copyright protection to longer and longer terms. In 1831 copyright terms were extended to a total of 42 possible years of coverage. In 1909 the total possible term of protection was extended to 56 years. And, finally, in 1976 it was blown up to life of the author plus 50 years and is now life of the author plus 70 years. So if an author creates something in their 20’s and dies at an old age, a work could conceivably be protected for a century and a half. (There are differences in protection depending on when the work was created, and for what purpose, but this general term length is how many copyrights are protected.)

I don’t see the point in a term length that long. I get it: those likely to profit off the long term length want it, and they have lobbied extensively for it. But what about society?

Copyright derives from our Constitution, because our founders thought it necessary to encourage artists and scientist to create and innovate. For them, such works were critical to a thriving society. The point of copyright is to incentivize creators to create. By promising protection of their works, its goes, a creator is more likely to spend time and money to create.

I generally agree with this. But the current length of copyright does not further this goal. It creates an improper monopoly on creativity. The more, and longer, works are protected, the less freedom there is to create. Copyright is supposed to balance societies want and need for new creative expression, and a creator’s want and need to be protected in her expression.

For me, the founders had it right when they enacted a term that lasted during an author’s lifetime— and possibly not their entire life. Life of the author, in my opinion, would be a fine measure. The creator of a work can be compensated for the fruits of their labor in whatever way they can monetize the work, and they can do so for their lifetime — I think that’s fair. Less time would probably be fair too.

We as a society do not need to so heavily vest in an author rights that will carry on for generations. That does not balance the goals of copyright. If an author is successful in their lifetime, they should be able to make enough money to leave some to future generations; or at least to live a good life themselves. If they aren’t monetarily successful, and there is no demand for the work, then why are we protecting it for so long anway? That just stifles new creations or rewards descendants of an author, who, themselves, had no part in creating the work.

Copyright is supposed to encourage and incentivize artists to pursue their passions and make our society a better place to live. But, copyright has lost its focus. Often times, it’s led by big business and wealthy offspring who do all they can to hold on to their monopoly, no matter the societal effect.

As for the lawsuit, I’m sure the defendants will have to shut down their operation, and pay the plaintiffs whatever profits they derived from the infringement. Frankly, I’m not on a side in this one, so the outcome matters not to me. I do believe, however, that such lengthy copyright protections are a detriment to creativity and innovation, and we as a society are worse off for them.