November 23, 2004

Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity.  By Siva Vaidhyanathan.  New York: New York University Press, 2001.  255pp.  Index.   ISBN 0-8147-8806-8. $18.95 (paperback).

Reviewed by Tim Brooks

One of the most accessible and oft-cited books about the current copyright situation, Copyrights and Copywrongs, is now available in paperback.  Siva Vaidhyanathan is an assistant professor at the University of Wisconsin, but he tackles the subject in a way that is both informative and entertaining.  For example, who would expect a book on copyright to begin by quoting Groucho Marx?

It seems that in 1946 Groucho received a letter from the Warner Brothers’ legal department warning him that his next announced film, A Night in Casablanca, might violate the rights of their 1942 film Casablanca.  He replied that he was surprised that Warners claimed to own a name like Casablanca, since it had been attached to a certain Moroccan city for centuries.

“Marx then declared that he had recently discovered that in 1471 Ferdinand Balboa Warner, the great-grandfather of the Warners, had stumbled upon the North African city while searching for a shortcut to Burbank.  Then Marx pondered how the filmgoing audience could possibly confuse the Marx Brothers project with the widely successful Warner Brothers production.  American filmgoers, Marx argued, could probably distinguish between Casablanca star Ingrid Bergman and his blond brother Harpo Marx.  ‘I don’t know whether I could,’ Marx added, ‘but I certainly would like to try.’”

He went on to ask how the Warners could call themselves brothers, since the Marx Brothers were brothers before they were.  So were the Smith Brothers, the Brothers Karamazov and “Brother Can You Spare a Dime?”  Jack Warner, he said, also had a tenuous claim on the name “Jack.”  Unamused, the Warner Brothers lawyers wrote back requesting a plot summary of his film so that they could search for actionable similarities.  Groucho replied with a ridiculous plot in which brother Chico was living in a Grecian urn on the outskirts of the city.  When the lawyers replied asking for more, he changed the plot to one in which he played a character named Bordello, the sweetheart of Humphrey Bogart, and Chico was running an ostrich farm.  The Warner Brothers lawyers finally gave up.

Groucho made his film, but in the half century since the lawyers have not gone away.  They, and their corporate employers, have become ever more aggressive in seizing parts of the public domain, restricting fair use, forbidding derivative works and limiting parody.  With the advent of the Internet there is a major effort underway to surround the new technology with legal barbed wire, for the benefit of older distribution methods and established interests.  Copyright advocates say they are merely stopping copyright theft.  But is what they are doing really theft by copyright?

Like most writers on copyright Vaidhyanathan spends little time on the “recording exemption” that so constrains many ARSC members (the provision that results in most pre-1972 recordings remaining protected, and thus out of the public domain, until at least the year 2067).  However he is a child of the media, and obviously loves music, and many of his examples revolve around the music and film industries.

The book begins with a reasonably concise summary of copyright principles and evolution during the 18th and 19th centuries.  Vaidhyanathan distinguishes between “thin” copyright, which allows for a robust public domain and the ability of those who come later to build on the work of the past, within limits; and “thick” copyright, which benefits copyright holders by imposing greater restrictions.  Europe has tended to favor “thick” copyright, so international conglomerates have taken to heavily lobbying treaty-making conferences such as “Berne Convention” series (named after the first international copyright conference in Berne, in 1886; the most recent was in Geneva in 1996).  Once they get what they want there, they lobby the U.S. Congress arguing that they simply want U.S. law to “conform” to international standards.  Among other things the 1996 Geneva agreement began to undermine the “idea/expression dichotomy,” which Vaidhyanathan calls one of the bedrock principles of U.S. copyright law (expression can be copyrighted, ideas cannot).  Now publishers of directories are arguing that facts themselves can be copyrighted, and want Congress to pass a bill protecting the facts they have gathered.  Among other things, this could shut down most of discography.

A long and interesting chapter describes Mark Twain’s views on copyright, as he evolved from an advocate of “thin” copyright (while he was adapting other people’s stories) to a proponent of “thick” copyright (after he was famous, and wanted everything he wrote protected).  Twain was influential during deliberations on the 1909 copyright act.  There then are stories about skirmishes over early films, including those of D.W. Griffith (who first took from others, then wanted everything he created protected), the sensible and influential rulings of Judge Learned Hand in the 1920s and 1930s, and the overturning of many of those rulings by modern judges who grant protection to such vague notions as the “concept and feel” of television shows and greeting cards.

A chapter that will be of special interest to ARSC members is “Hep Cats and Copy Cats: American Music Challenges the Copyright Tradition.”  Here Vaidhyanathan traces many of the notorious infringement cases in modern music, including Willie Dixon vs. Led Zeppelin, the George Harrison “My Sweet Lord” case, and the Gilbert O’Sullivan “Alone Again” case that effectively shut down sampling in rap music.  An obscure rap group had sampled about twenty seconds of piano chords from O’Sullivan’s sappy 1972 ballad for the background of a CD track; although O’Sullivan suffered no economic harm from this, he indignantly insisted that he had complete control over how his recording would be used and he didn’t want any part of it in any rap song.  The judge agreed.

There are even racial overtones it seems.  Copyright is a European tradition emphasizing ownership and control; the African tradition is more one of community.  Blues writers commonly borrowed from and built on each other’s work, but today, under U.S. copyright, that is strictly prohibited.  Even politics and parody have been attacked.  When a Dallas mayor named Ron Kirk aired a campaign ad referring to Kirk as “captain of the Dallas enterprise,” the owners of the Star Trek copyrights threatened suit and the ad was pulled; on the other hand in 2000 MasterCard International sued Ralph Nader over a campaign ad that parodied one of their commercials, and lost.  Humorless courts have sometimes ruled against take-offs, as in the case of “The Cunnilingus Champion of Company C” (to the tune of “Boogie Woogie Bugle Boy of Company B”), from the off-Broadway, and evidently off-color, musical Let My People Come.  However Rick Dees’ “When Sunny Sniffs Glue” (to the tune of “When Sunny Gets Blue”) did past muster with the Ninth Circuit Court.  The distinction here seems to be protection for parody (a critical statement about the original song), but not for satire (humor about a more general subject).  Aren’t you glad you’re not a judge?

Copyrights and Copywrongs is both informative and a good read.  It obviously has a point of view, advocating “thin” copyright to promote creativity, but it also provides a wealth of specific examples of how the laws have worked, and sometimes not worked, with special emphasis on music.  It is highly recommended.


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