How artists get paid is a universal question, and it remains complicated today. A good example is the difference between literature and painting. Paintings can vary hugely in price, so that one artist makes far more than another per canvas produced. But with books, they all cost more or less the same and authors make more the more copies they sell, no matter the quality of the work. So artists and writers have very different incentive structures.
Before copyright, literature was largely a noble/genteel affair. Copyright made it a more middle class affair, with hacks and journalists writing novels for money.
So yes, it matters very much how writers and artists get paid, and it will made a big difference to who can make art and what kind of art they make. Looking forward to seeing what ideas you have for reforming it.
Technically, books don't all cost the same - genre romances sell for pennies, mass-market paperbacks for more, hardbacks for still more, and textbooks for tons more. But your point still stands, except maybe for textbooks (which have weird incentive structures of their own), they're a much less individualized market than paintings because there's much greater volume.
I've thought for a while about reforming copyright. I'm much less confident than I used to be, but I still do have some ideas.
If we are talking about the pictorial arts, there are different markets for original paintings/drawings; limited print run reproductions, usually numbered and sometimes "remarked" by the artist to individualize them; and mass market print run reproductions of varying quality. I have several dozen pieces on my walls; probably a majority are limited print run reproductions, often bought at science fiction convention art shows. And then you can buy postcards of works of art at art museums, for even less than you pay for larger unnumbered reproductions.
Protection for derivative works of the sort that contain verbatim portions of the original work (e.g. music remixes, or modified versions of software) may fall out of regular copyright protection, since it involves copying passages. If people could make as many copies of this sort of derivative work as they want for free, copyright would be toothless: people could just make slight modifications and copy it for free. And if this sort of copying involved requires permission, the only way you could make this sort of derivative works is stitching together portions of legally bought copies, which would be quite impractical.
The sort of derivative works you discussed are derivative in a much weaker sense. Essentially the question is how fictional characters came to be copyrightable (https://en.wikipedia.org/wiki/Copyright_protection_for_fictional_characters has some discussion, it seems to come from court decisions, rather than explicitly from statute), and whether they should be (IMO no). Ideas generally aren't copyrightable, only the concrete form is; AFAIK retelling or summarizing a story in your own words generally isn't a copyright violation, if not for copyright on characters. Copyright on characters seems like a weird exception, affording copyright protection to what I'd consider an idea, and what consists of so little information (a name and perhaps just a few bits' worth of attributes) that it wouldn't generally be copyrightable.
Copyright, to achieve its purpose of properly compensating creators, has to apply to those things that are most worth copying. Characters are clearly things worth copying so they needed to be protected. Sometimes in law you cannot achieve your intended effect without drawing some fuzzy lines.
On the one hand, you've got a point about compensation. On the other hand, the blunt hand of copyright doesn't and can't apply to everything that's worth copying. Look at the wave of kids' books about magical schools around in the early 2000's - they were clearly copying something worthwhile from "Harry Potter," but should J. K. Rowling be suing all of them for copyright infringement? Or for that matter, should Diana Wynne Jones and Ursula K. Le Guin be suing her in turn, since they wrote about magical schools first? And then, should the Estate of JRR Tolkien be suing all of them for writing in the modern fantasy genre?
So, at some point, you do have to draw a dividing line and leave some worthwhile things open to copying.
Oh, certainly. But if people had been writing Harry Potter books with the full Hogwarts cast, or if studios had been making Harry Potter films with the same characters and setting but different plots, then in both cases Rowling should be able to sue. The question is how to define that dividing line legally and how to enforce it. And even if we have a strong sense of what people should or should not be allowed to do in individual cases, legally defining that line is still not easy.
For a case that's straddling the line, take Pat Murphy's "There and Back Again," a science-fiction novel that retells the plot of Tolkien's "The Hobbit" scene by scene translating it into space opera. (I read it; it's a fun story.) The Tolkien Estate threatened to sue, and Murphy stated that she considered it transformative but backed down anyway. Perhaps unfortunately, that leaves the rest of us without a clear ruling.
Part of the line being fuzzy is that it forces copyright holders to be aggressive because if they are not, they can lose more and more ground. There are similar problems with trademark law where companies have to sue people they have no interest in suing simply to show that they are defending their trademarks so they don't lapse. It is a pity that that one didn't go to trial, though. It would have been an interesting ruling.
It says the modern derivative-works distortion of the copyright monopoly only showed up in statute in 1976. I need to look through the case law to see how well it was established before then, but it's clear that it was NOT established in 1870.
So this is a surprisingly recently development. I say "surprisingly" because, if it wasn't law before 1976, that *seems* to imply that commercial fanfiction was both legal and copyrightable when the first issues of SPOCKANALIA hit the early cons. And (as a Star Trek fan fiction producer and Star Trek fan fiction history-study-er), let me assure you that nobody in our fandom treated it that way in 1966-76.
Economically, copyright made sense as an institution once the printing press made the production of multiple copies cheap. It allowed a printer who invested the large cost in labor and type to produce a publication to amortize the cost over a large print run; without copyright it was easier for multiple printers to set the same book in type, each being able to amortize only over a fraction of the potential sales.
But now that we have xerography, and PDFs, and other such technologies, anyone can set up to do multiple copies of a document at a much lower cost. And I'm not sure that copyright is lastingly viable any more.
There are people who subscribe to that idea as a matter of justice. But it's not clear to me there there is any inherent justice or injustice; at least, it's not as primal an example of suum cuicque as ownership of physical property. And individual authors don't have concentrated enough gains to make from exclusive copyright to be in a good position to seek legal security, whereas a printer who may have set a hundred books in type has quite an investment to safeguard. And, of course, once the publisher is in a position to earn that profit from legality, they're in a position to pay the author more as a way of getting more product. One might even say they are led to do so as if by an invisible hand.
I'm not sure that works, given the ease of copying books. In a world without copyright, if one publisher pays an author to "get more product" - as soon as the product is gotten, every other publisher can scan in the book and rush out their own competing editions. In fact, the competing editions will be cheaper because they don't have to pay the author.
This's a bad equilibrium, but no one publisher is in a position to fight it by incurring individual expenses. The way out of this is some form of copyright, or else a publishers' cartel that amounts to a private copyright system.
Well, yes. I was offering that as a reason that publishers could have an incentive to favor enforceable copyright, and that they could be more effective than authors in doing so. It's more or less the argument of Mancur Olson's The Logic of Collective Action.
Yes, that makes sense! It does assume that publishers are going more after new books than the copious back-catalog of works that're already written. But then, most publishers are.
How artists get paid is a universal question, and it remains complicated today. A good example is the difference between literature and painting. Paintings can vary hugely in price, so that one artist makes far more than another per canvas produced. But with books, they all cost more or less the same and authors make more the more copies they sell, no matter the quality of the work. So artists and writers have very different incentive structures.
Before copyright, literature was largely a noble/genteel affair. Copyright made it a more middle class affair, with hacks and journalists writing novels for money.
So yes, it matters very much how writers and artists get paid, and it will made a big difference to who can make art and what kind of art they make. Looking forward to seeing what ideas you have for reforming it.
Technically, books don't all cost the same - genre romances sell for pennies, mass-market paperbacks for more, hardbacks for still more, and textbooks for tons more. But your point still stands, except maybe for textbooks (which have weird incentive structures of their own), they're a much less individualized market than paintings because there's much greater volume.
I've thought for a while about reforming copyright. I'm much less confident than I used to be, but I still do have some ideas.
If we are talking about the pictorial arts, there are different markets for original paintings/drawings; limited print run reproductions, usually numbered and sometimes "remarked" by the artist to individualize them; and mass market print run reproductions of varying quality. I have several dozen pieces on my walls; probably a majority are limited print run reproductions, often bought at science fiction convention art shows. And then you can buy postcards of works of art at art museums, for even less than you pay for larger unnumbered reproductions.
Protection for derivative works of the sort that contain verbatim portions of the original work (e.g. music remixes, or modified versions of software) may fall out of regular copyright protection, since it involves copying passages. If people could make as many copies of this sort of derivative work as they want for free, copyright would be toothless: people could just make slight modifications and copy it for free. And if this sort of copying involved requires permission, the only way you could make this sort of derivative works is stitching together portions of legally bought copies, which would be quite impractical.
The sort of derivative works you discussed are derivative in a much weaker sense. Essentially the question is how fictional characters came to be copyrightable (https://en.wikipedia.org/wiki/Copyright_protection_for_fictional_characters has some discussion, it seems to come from court decisions, rather than explicitly from statute), and whether they should be (IMO no). Ideas generally aren't copyrightable, only the concrete form is; AFAIK retelling or summarizing a story in your own words generally isn't a copyright violation, if not for copyright on characters. Copyright on characters seems like a weird exception, affording copyright protection to what I'd consider an idea, and what consists of so little information (a name and perhaps just a few bits' worth of attributes) that it wouldn't generally be copyrightable.
Copyright, to achieve its purpose of properly compensating creators, has to apply to those things that are most worth copying. Characters are clearly things worth copying so they needed to be protected. Sometimes in law you cannot achieve your intended effect without drawing some fuzzy lines.
On the one hand, you've got a point about compensation. On the other hand, the blunt hand of copyright doesn't and can't apply to everything that's worth copying. Look at the wave of kids' books about magical schools around in the early 2000's - they were clearly copying something worthwhile from "Harry Potter," but should J. K. Rowling be suing all of them for copyright infringement? Or for that matter, should Diana Wynne Jones and Ursula K. Le Guin be suing her in turn, since they wrote about magical schools first? And then, should the Estate of JRR Tolkien be suing all of them for writing in the modern fantasy genre?
So, at some point, you do have to draw a dividing line and leave some worthwhile things open to copying.
Oh, certainly. But if people had been writing Harry Potter books with the full Hogwarts cast, or if studios had been making Harry Potter films with the same characters and setting but different plots, then in both cases Rowling should be able to sue. The question is how to define that dividing line legally and how to enforce it. And even if we have a strong sense of what people should or should not be allowed to do in individual cases, legally defining that line is still not easy.
Yes, indeed.
For a case that's straddling the line, take Pat Murphy's "There and Back Again," a science-fiction novel that retells the plot of Tolkien's "The Hobbit" scene by scene translating it into space opera. (I read it; it's a fun story.) The Tolkien Estate threatened to sue, and Murphy stated that she considered it transformative but backed down anyway. Perhaps unfortunately, that leaves the rest of us without a clear ruling.
Part of the line being fuzzy is that it forces copyright holders to be aggressive because if they are not, they can lose more and more ground. There are similar problems with trademark law where companies have to sue people they have no interest in suing simply to show that they are defending their trademarks so they don't lapse. It is a pity that that one didn't go to trial, though. It would have been an interesting ruling.
This paper is neat, or at least the 70% of it that I swiftly read was: https://www.bu.edu/law/journals-archive/scitech/documents/deneau_article.pdf
It says the modern derivative-works distortion of the copyright monopoly only showed up in statute in 1976. I need to look through the case law to see how well it was established before then, but it's clear that it was NOT established in 1870.
So this is a surprisingly recently development. I say "surprisingly" because, if it wasn't law before 1976, that *seems* to imply that commercial fanfiction was both legal and copyrightable when the first issues of SPOCKANALIA hit the early cons. And (as a Star Trek fan fiction producer and Star Trek fan fiction history-study-er), let me assure you that nobody in our fandom treated it that way in 1966-76.
Economically, copyright made sense as an institution once the printing press made the production of multiple copies cheap. It allowed a printer who invested the large cost in labor and type to produce a publication to amortize the cost over a large print run; without copyright it was easier for multiple printers to set the same book in type, each being able to amortize only over a fraction of the potential sales.
But now that we have xerography, and PDFs, and other such technologies, anyone can set up to do multiple copies of a document at a much lower cost. And I'm not sure that copyright is lastingly viable any more.
What about compensation for the author?
There are people who subscribe to that idea as a matter of justice. But it's not clear to me there there is any inherent justice or injustice; at least, it's not as primal an example of suum cuicque as ownership of physical property. And individual authors don't have concentrated enough gains to make from exclusive copyright to be in a good position to seek legal security, whereas a printer who may have set a hundred books in type has quite an investment to safeguard. And, of course, once the publisher is in a position to earn that profit from legality, they're in a position to pay the author more as a way of getting more product. One might even say they are led to do so as if by an invisible hand.
I'm not sure that works, given the ease of copying books. In a world without copyright, if one publisher pays an author to "get more product" - as soon as the product is gotten, every other publisher can scan in the book and rush out their own competing editions. In fact, the competing editions will be cheaper because they don't have to pay the author.
This's a bad equilibrium, but no one publisher is in a position to fight it by incurring individual expenses. The way out of this is some form of copyright, or else a publishers' cartel that amounts to a private copyright system.
Well, yes. I was offering that as a reason that publishers could have an incentive to favor enforceable copyright, and that they could be more effective than authors in doing so. It's more or less the argument of Mancur Olson's The Logic of Collective Action.
Yes, that makes sense! It does assume that publishers are going more after new books than the copious back-catalog of works that're already written. But then, most publishers are.