06 August 2003

More on the economic background for intellectual property law—muddled as it is by noneconomic considerations—from Marci Hamilton of the Benjamin Cardozo School of Law at Yeshiva University in New York City. Her take on the policy behind Article I, § 8, cl. 8 is:

In a culture without copyright, only the rich, or the government-sponsored, could be this culture's full-time creators. Poor artists like Loretta Lynn would have to flip burgers long into their music careers - and might even give up on music entirely.

For these reasons, imagining a world without copyright wouldn't just impoverish the musicians. It would also impoverish the museum, the culture, and music itself.

If the class of creators were winnowed down to the rich and the government-sponsored, and the free market were thus to be replaced by a patronage system, the ability of art to speak to the American people would dwindle precipitously. Artistic works would cater to elites; classical music might survive, but rock and country would encounter grave difficulties.

Whether society is richer for yet another whiny ballad about pickup trucks, whiskey, cigarettes, and/or lost girlfriends (or, for that matter, poor musicianship in service of disco-like anthems about stoned teenagers in lust) is open to debate. The point, though, is that society is richer for having such an argument in the first place. As Ron Rotunda, then at the University of Illinois College of Law, was fond of remarking, the solution to "bad speech" is "more speech."

   In any event, real starvation does not help artists create more art. They can't create art pushing up daisies.