29 January 2006

The Written

I was actually shocked to read a coherent, well-considered article on one of the intractible problems in copyright this morning. In a newspaper.

United States copyright law is notoriously complicated and open to interpretation. Though concepts and ideas, because they are not "fixed" in a tangible way, are clearly not protected by copyright, photography and choreography, for instance, are. Mr. Shechtman, who is married to the director Lynne Meadow, argues that direction can be seen as an amalgam of the two: the creation of stage pictures and movement. Mr. Sevush, of the Dramatists Guild, all but scoffs at the idea that a director, though he may be creative, is creating anything. He described the director's work as "moving around the copyrightable contributions of others."

Mr. Weidman, who worked with Mr. Mantello on the recent Broadway revival of "Assassins" — and who, in gratitude for his directorial contributions to the show, offered him a share of the authors' royalty, which Mr. Mantello declined — is more diplomatic. The director is an interpretive artist, he said, often doing brilliant work. For his work to be systematically copied by someone else, he agrees, is "manifestly unfair."

But that does not mean, he argued, that the director owns his work, any more than an actor does. Not everything creative is copyrightable. The repercussions, he said, would be too dire. If each director's staging of a relatively new play had copyright protection, very soon there would be no staging options left. The play would become so encumbered with licenses, or the risk of lawsuits, that it would be impossible to produce — a net loss to the culture. Even classic works like Romeo and Juliet might gradually be removed from the public domain, thus perverting the aim of copyright law, which is to increase the flow of ideas and artwork by providing an incentive to their creators. "If Leonard Bernstein had been in a position to copyright his interpretation of Mahler," Mr. Weidman asked, "would another conductor who thought that interpretation was right, and then conducted Mahler in the same way, be stealing from Bernstein?"

Mr. Mantello takes a middle ground. "The acknowledgement of what the director creates is very important to me," he said. "But with that comes a certain amount of responsibility. Not everything I do is a unique contribution. I would never try to copyright my staging of Glengarry Glen Ross, for instance, which is so straightforward. But to protect myself if I'm working on a new piece, I now make a side agreement with the authors for a small participation in the subsidiary rights. In a collaboration, you don't want the participants to start going, 'Mine, mine, mine, yours, mine.' But that's the unfortunate result of having to use the legal system to marshal something that ought to be more fluid."

Jesse Green, "Exit, Pursued by a Lawyer," NYT (29 Jan 2006).

In technical terms, what this argument really concerns is "fixation."1 Copyright protects only works that have been "fixed," under the (now untenable) theory that "copyright" protects only the "right to copy."2 Although that is certainly the historically assumed meaning of "copyright," keep in mind that the IP Clause never uses the term "copyright" (or "patent"); it instead refers to "exclusive right," a rather broader rhetorical construct. Instead, there is a subordinate theory that, if the United States had adopted it when it joined the Berne Convention, would have provided a much better theoretical foundation for determining the "director's right": droit de suite (creator's "moral rights"). But, for a variety of reasons—for some reason, just about everything is ending up near Los Angeles today—that was not a politically viable option.

Let me take that back. It's about money and ego. But every argument concerning creativity can be put in those terms.

  1. It also exposes one of the many foundational errors in the American work-for-hire doctrine. Under the WFH doctrine, the answers to all of the above would have been incredibly obvious if only there had been a camera rolling: All of the copyrights in the performance itself would belong to the producers. See 17 U.S.C. § 101 ("A 'work made for hire' is… a work specially ordered or commissioned for use as… a part of a motion picture or other audiovisual work… if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.") In film and TV, the producers have enough clout to force every director, etc. to sign WFH contracts; in fact, the contracts negotiated by the various guilds assume that. There was an attempt to make audio recordings fall within the same definition, but it was rescinded after outrage. From a pure-theory perspective, neither audio nor audiovisual recordings should be WFH, as that raises patronage to a status not reasonably within the meaning of the word "author." It is even more unsound, though, to distinguish between the two.

    Apparently, though, nobody connected to copyright policy attends enough plays to have noticed the analogous problem, nor is familar enough with choreographic notation to note that analogy.

  2. Cf. Christopher L.C.E. Witcombe, Copyright in the Renaissance: Prints and The Privilegio in Sixteenth-Century Venice and Rome (2004).