Friday, May 05, 2006

The dark side of copyright law

There was a story in The New York Times in November 2005 called "The Goat at Saks and Other Marketing Tales" which detailed Saks Fifth Avenue's development of an illustrated children's book called Cashmere If You Can, about a young girl and her pet herd of Mongolian goats who call the roof of the famed department store home. What distinguished this particular publication from the rest was that the book did not originate from the mind of an individual author. Rather, it was commissioned by a Saks marketing executive, ostensibly with the intent of creating a piece of profitable fiction which would showcase the store within its pages. Another recent story in the Times called "First, Plot and Character. Then, Find an Author" (4/27/06) detailed a similar strategy by Alloy Entertainment, a young-adult publishing company.

Product placement used to be a joke; now it's so ubiquitous that brands no longer need to pay for the right for their product to be showcased in a book, film or TV show. These days, they simply take their product and build the edifice of a book, film or TV show around it. The unfortunate downside to this approach has been demonstrated quite clearly of late, with the revelation that a 19-year-old Harvard student, Kaavya Viswanathan, appears to have lifted large chunks of her recently-published book How Opal Mehta Got Kissed, Got Wild, and Got a Life from preexisting works by author Megan McCafferty and also, to a lesser extent, authors Sophie Kinsella, Meg Cabot and even Salman Rushdie.

Copyright law was ostensibly created to protect the rights of the individual creator of any artistic work from unlawful reuse. In one sense, it's beneficial for the creator because it ensures that they'll be fiscally rewarded for their hard work in creating something that people want to purchase and experience. The flipside, however, is that it could conceivably box the creators of future works into smaller and smaller compartments. Exploitation of copyright law can be seen particularly clearly when the "estate" of any given author claims ownership of material and demands damages because they believe that the originator of the idea owns it until the end of time. This is an idea that has always seemed a little bit absurd to me; while the creator certainly deserves the recognition and reward for the work they do, that doesn't mean their family or friends or distant relations automatically deserve to get a slice of the pie.

How, then, do you claim ownership of material when a corporation commissions it? Is the future of copyright law such that originality is sliced-and-diced into a number of no-fly zones that could limit an author's ability to touch upon certain subject areas, or even certain ideas? A fascinating recent documentary called The Corporation detailed how lawyers in the early 18th century exploited a loophole in the 14th Amendment that enabled them to declare corporations an individual "person" that's entitled to legal rights normally granted solely to flesh-and-blood individuals. As detailed by the excellent writer Glenn Erickson, also known as DVD Savant, in his review of the film at

Corporations in the first half of the 18th century were chartered when the resources to construct things like bridges could only be found in private hands. The creation of legal "persons" was meant to protect individuals from undue liability in public projects, usually with strictly defined limits. Clever lawyers used the 14th Amendment - designed to extend the rights of recently freed slaves - to extend the rights of corporate persons as well, permitting such unintended things as one corporation buying another. Living persons cannot buy and sell one another, but corporate "persons" can.
If corporate power can extend into the intangible realm of ideas, where can creativity go without being boxed in by misuse of legal power? Obviously there's a line between the appropriation of a preexisting idea for one's own ends and the callous exploitation of outright plagiarism. Viswanathan's case has made such a splash because she was initially perceived to be a sort of wunderkind; a young Ivy League college student who had wrangled her own lucrative book contract by what appeared to be pure, unadulterated talent. But the situation becomes more complicated once you consider that the work itself bore the heavy influence of corporate control. I don't claim to be an expert on copyright law -- or of any law, for that matter; I'll leave that to my law-school friends. But it's increasingly disturbing to see so much influence wielded by corporations in areas that should be outside their realm of influence.

No comments: