Sunday's Times featured an op-ed by author Mark Helprin arguing that authors (and their descendents) deserved copyrights in perpetuity for their work. While Helprin has written what is by far our favorite novel of all time, we are extremely wary of his political views, which can be found frequently on the op-ed page of the Wall Street Journal, if that gives you any idea. Still, something about his argument seemed plausible, which deeply disturbed us. Knowing very little about the law, we turned to Maud Newton, who possesses the three most important qualities we look for in an expert on the subject: she is a writer, she is a former tax attorney, and she answers our e-mails. The discussion follows.
So is Helprin's argument sound?
No, not really. Slippery, but not sound.
Not even from a legal standpoint?
The Constitution authorizes Congress to give authors and artists exclusive rights to their work "for limited Times." Limited is by definition not perpetual But then, as my high school government teacher was fond of observing, "The Constitution says whatever the Supreme Court says it says." I wouldn't put it past the current court to rule that "limited Times" means anything short of infinity.
How about from a moral one?
Let's stay focused on the law for a minute.
But shouldn't authors and their descendents have the right to royalties from their work?
Authors hold copyright for life plus 70 years, meaning that their heirs reap the benefits of exclusive rights for seven full decades after they die. But the purpose of exclusive rights like copyright and patent — both of which flow from the same twenty-seven words of the Constitution — is "To promote the Progress of Science and useful Arts," not to fund vacations for John Grisham's great-great-grandchildren.
What about Helprin's point that we're giving less privilege to a work of art than a commodity, which can be owned in perpetuity?
Copyright is not, constitutionally, a form of property. It's a government-granted monopoly on the right to reproduce a work. And if this sounds like a lot of Libertarian live-free-or-die mumbo jumbo, blame the Supreme Court — which speaks in terms of "the scope of the limited monopoly that should be granted to authors" — not me.
So this could be likened to a patent situation?
Again, copyright and patent laws flow from the same constitutional provision, so yes.
Doesn't the current system actually privilege publishers over writers or their descendents?
How so? Helprin wants Times subscribers to get all teary-eyed for the poor authors' progeny screwed by Barnes & Noble, but his public domain example is craftily disingenuous. Think about it: you can pick up a new copy of Huck Finn for ten bucks or seven bucks or three bucks — or you can read it for free online.
(Most people don't realize this, but the company that challenged the most recent copyright extension all the way to the Supreme Court, and lost, was a nonprofit electronic publisher that posts works in the public domain at no charge to readers.)
You want to talk about corporations riding to riches on the backs of authors and artists? Take a look at the copyright rules and terms for "works made for hire."
Out of curiosity, who owns your Gawker posts? You, or Nick Denton? [Denton does, but given the crap I churn out, he's welcome to it. - Ed.]
Sure, 70 years is a long time, but Saul Bellow's daughter is going to need some of that money to go to college.
Haha! Yeah, how old is she now, six? I guess she has sixty-some-odd years to work it like the Beckett and Joyce estates or get a job.
We all know the '98 copyright extensions were enacted to benefit Disney, yet you didn't see old Walt trying to track down the descendants of the Brothers Grimm to give them their fair share for Cinderella.
And there you have it. Screw you, Helprin! Nobody's going to be reprinting Memoir From An Antproof Case a hundred years from now anyway, so don't worry about it.