19 August 2006

I'm afraid that John Sutherland's article "Acts of Possession" on novels, author identity, and copyright, which appears in today's Guardian, reflects inadequate research on copyright doctrine and the novel. In no particular order, he makes the following :

  • Mr Sutherland's characterization of the Suntrust case ('The Wind Done Gone') is completely inaccurate. He asserts that "The Wind Done Gone was duly injuncted, and the injunction lifted after the novel's publishers, Houghton Mifflin, made an out-of-court settlement with the Mitchell estate." This is flat wrong. The injunction was lifted on appeal by the 11th Circuit Court of Appeals.1 It appears from the remainder of the docket that the district court judge, when the case was returned to him, acquiesced in the Court of Appeals' assertion that a fair use defense would probably prevail; a confidential settlement followed quickly. In fact, the result of the case was so preordained that the biggest controversy over it in the community of intellectual property lawyers was how the District Court judge screwed up so badly as to issue an injunction in the first place.
  • Mr Sutherland's characterization of pseudonyms is curiously incomplete. His contemporary example (King/Bachman) is from American publishing, and leaves the grossly inaccurate impression that this is the typical "cause" of the decision to use a pseudonym. Far more commonly, one finds that a pseudonym is essentially imposed on an author as a reaction to poor sales of a previous book. This can be a "prudent" imposition by an author being realistic about the market (Megan Lindholm becoming Robin Hobb) or one forced by a publisher's fiat.2 Then there is the whole question of pseudonyms required by category conventions, such as the feminine (or at best indeterminate) auctorial brand-names commonly adopted by male romance novelists. In sum, Mr Sutherland's use of Stephen King as an example was not just ill-advised—it was actively misleading.
  • The Statute of Anne3 was far from the first copyright-like statute.4 What he means to say is that it is the first statute that, by default, vested the copyright in the author and not in the patron. With that correction, the remainder of his introduction makes sense, even if the rest of the article does not.

Overall, I found this article a disappointingly glib and poorly researched piece. Perhaps its greatest error is in failing to acknowledge the differences between US and European copyright systems. One of those differences—authors' moral rights, or droit d'auteur—is central to both ongoing struggles over identification of works and to the particular examples Mr Sutherland cited in his article.

  1. Suntrust v. Houghton Mifflin, 252 F.3d 1165 (11th Cir. 2001).
  2. I have two current clients in this predicament. In both instances, the clients have come to regret acceding to the publisher's demand, albeit for entirely different reasons. In any event, the Nora Roberts/J.D. Robb situation is a far better example for Mr Sutherland's purpose than was the one he chose; I suspect, though, that Ms Roberts' work simply isn't well-enough known in the UK for that point to have sunk in.
  3. 8 Anne ch. 19 (1710). Although often cited to 1709, the Act was first introduced in Parliament in January, at a time when the year "began" on 25 March. Just as Washington's birthday was retroactively moved forward, so was the "correct" year citation to the Act.
  4. See generally Elizabeth Armstrong, Before Copyright: The French Book-Privilege System 1498–1526 (1990); Christopher L.C.E. Witcombe, Copyright in the Renaissance: Prints and the Privilegio in Sixteenth-Century Venice and Rome (2004).