By Paul Saint-Amour

Copyright law is probably not the first thing that pops into your head when you hear the word “creativity.” The © emblem is everywhere we look nowadays—it’s on our CDs and books, our Websites and cereal boxes. But that © symbol seems to be most at home in the media ecology’s polar regions—colophon pages, small contractual print, FBI warnings—rather than in the lively green space where new ideas and expressions come into being, collide and thrive.

If copyright determines certain aspects of how creative work circulates and makes profits, it seems to do so at a distance from the actual creative process, taking charge of the work only once the fires of creation have cooled. It may occupy the minds of entertainment lawyers, publishers, librarians and even the odd English professor, but surely it is the last thing on the minds of artists, composers and writers as they create, alone in their garrets, summoning the muse.

Strangely, though, this very portrait of creativity—the lone genius calling forth original work out of the void—is a by-product of copyright law, which began to take its present shape in England during the early 18th century. Before copyright, writers and artists did not generally retain rights over their work once they had sold the original to a publisher; as a result, they relied largely on noblemen’s patronage for their income. The originality of their creations affected their livelihood to some degree, but it was less important than the work’s ability to gratify a patron or please a crowd of paying theatregoers. In 1710, however, the Statute of Anne gave British authors an exclusive, though temporary, monopoly in the right to copy and disseminate their work—a copy right. Though copyright’s first major beneficiaries were the publishers it protected from rival editions, the new law gave authors the potential to earn a living from revenue generated continuously by their work, so long as they kept their copyrights instead of selling them to their publishers. Before long, originality emerged as the main criterion for deciding whether or not a work could be copyrighted and, increasingly, as the chief measure of its aesthetic value. Coming into prominence during the same decades, the legal criterion of originality and the figure of the self-sufficient professional writer contributed to a new mythology: that of the radically original author, the creative genius celebrated by Romanticism.

You don’t have to look far to see that the original genius remains a central figure in our understanding of creativity today. The MacArthur “Genius” Grant, the academic star system and the continued popularity of artist biographies all testify, in different ways, to the longevity of the Romantic account of creativity as a mysterious and essentially individual gift. But the figure of the original genius was not the only enduring legacy of those early copyright laws. The Statute of Anne also created something called the public domain, a condition of public ownership, or “commons,” into which all published work falls when its copyright expires. Public domain works may be copied, published and disseminated for free and without permission, a fact that makes the public domain a great friend to education and public discourse. The same fact makes the public domain a rich source of raw material for fresh acts of creation. These creative acts result in new works that are themselves copyrighted and eventually join the public domain, where they provide source material for subsequent creations. Copyright does nothing less than implement a life-cycle for creativity: its private monopoly gives an incentive to creative individuals, and the temporary nature of that monopoly ensures that a rich, publicly-owned reservoir of expression will always be available to seed future cycles of creation.

As laws go, copyright is downright elegant.

In the present cut-and-paste world, we’ve become accustomed to the idea that fresh creative expressions can legitimately use the expressions of the past as raw material. But the past expressions that get grafted or sampled into today’s creations tend to be relatively recent ones, recent enough that they are still under copyright. In most cases, the derivative work’s author simply obtains the permission of the copyright owner, often in exchange for a fee. But the law deems some uses of copyrighted material—commentary, criticism, pedagogy, reportage and scholarship, for example—important enough to the health of public democratic discourse that they win a special copyright easement. Fair use, as it is called in the U.S., allows private intellectual properties to be used freely for those privileged purposes.

Though the central aim of fair use is to subordinate copyright’s private property incentives to the First Amendment, the parameters of fair use necessarily affect creativity. The most obvious example is parody. Parodies are both critical and creative, yet because they depend for their critical effectiveness on being able to copy aspects of the things they criticize, they can appear parasitic rather than original. Parody is not named as a fair use genre in the U.S. Code, but in 1994 the Supreme Court established that a parody, even a for-profit one, might qualify as a fair use of the original it parodies. The decision did not write parodists a blank check, however. It stipulated that in order to qualify as a fair use, a parody must comment in some way critically on the original. In other words, if a parody copies a protected work, the work that is copied must also be the object of the parody. A parody may not, as a 1996 case determined, imitate a Doctor Seuss book in order to parody the O.J. Simpson trial. The parodist who does not think about copyright during the creative process may end up with a creation that cannot legally see the light of day.

Last year a highly publicized case tested the boundary between copyright infringement and fair use for purposes of parody. The case concerned a book called The Wind Done Gone, a first novel by Nashville-based screenwriter and songwriter Alice Randall. Describing herself as being of mixed-race ancestry, possibly the descendant of a Confederate general and an African-American slave, Randall first read Margaret Mitchell’s 1936 bestseller Gone With the Wind when she was 12. “There was something in the book that attracted and repelled me,” she told a group of journalists. “Where were the mulattos on Tara? Where were the people in my family history?” Her response, decades later, was to write a counter-novel to Gone With the Wind from the point of view of a mixed-race character, a strategy that attracted publicity long in advance of the summer 2001 release Houghton Mifflin had scheduled for the book. In essence, Randall’s novel uses the framework of Mitchell’s characters, plot and setting but tells the story through the eyes of a character who does not appear in Mitchell’s romance. Randall remarked that she wanted to “redeem” Mitchell’s classic by writing “an antidote to a text that has hurt generations of African-Americans.” The Wind Done Gone attempts to turn the sympathetic contours of Mitchell’s novel inside out: characters central in the original become marginal, while the African-American figures who were bumbling and peripheral in Gone With the Wind occupy the complex center of Randall’s story and interest.

But several months before the novel’s publication date, lawyers acting for the Mitchell Trusts filed for a temporary restraining order and preliminary injunction to halt its publication, alleging that Randall’s book infringed Mitchell’s copyright and calling The Wind Done Gone a “blatant and wholesale” theft of Gone With the Wind. U.S. District Judge Charles Pannell found for the Mitchell Trusts and enjoined the publication of Randall’s novel, which he called an “unabated piracy” of Gone With the Wind. Pannell rejected the parody/fair use defense on the grounds that Randall’s novel appropriated more from Mitchell’s than was necessary in order to criticize the older book, and added that in any event the principal target of Randall’s parody was not Gone With the Wind in particular but racism and slavery generally. In her responses to the initial decision, Randall insisted that her book had specifically targeted Mitchell’s novel, criticizing its romanticized portrait of compliant slaves, benevolent masters and an Old South whose demise Scarlett O’Hara famously deplores: “The more I see of emancipation, the more criminal I think it is. It’s just ruined the darkies.” The case attracted a wide variety of sympathizers, with everyone from Toni Morrison to Microsoft filing friends-of-the-court briefs in support of Randall’s right to publish The Wind Done Gone. Eventually, a U.S. Court of Appeals adjudged Pannell’s decision an “abuse of discretion in that it represents an unlawful prior restraint in violation of the First Amendment” and Alice Randall’s book was legally published. The Mitchell Trusts deplored the Court’s decision as having dire consequences for future creation, which would be chilled when creative people saw how uninterested the law was in protecting their works against defacement by parodists. But free speech advocates celebrated the decision as proof of the vitality of the First Amendment and the fair use provisions that trump copyright in its name. And writers for whom parody is both a legitimate form of creation and a crucial form of dissent in a free society expressed relief that the interests of free speech and fresh creation had won out over private interests.

The parameters of fair use are not the only contested borders in copyright these days, nor are they the only ones that affect creativity. Copyright, remember, has an expiration date, a point after which the protected work joins the public domain and may be freely copied by anyone. At its inception in 1790, U.S. copyright law protected a work for a maximum of 28 years from its publication. But since the 19th century, the term of copyright protection in the U.S. has been slowly increasing, to 42 years from publication in 1831, to 56 years from publication in 1909, to the duration of the author’s life plus 50 years in 1976. In the U.S., the latest episode of “copyright creep” happened in 1998, with the passage of the Sonny Bono Copyright Term Extension Act (CTEA). Named for the late songwriter-turned-congressman, the CTEA added 20 years to existing copyright terms. Works created on or after January 1, 1978 are now protected for the author’s life plus 70 years, while anonymous works, pseudonymous works and “works for hire” created by or for corporations are shielded for 95 years from publication or 120 years from their date of creation, whichever is shorter. And all works published and copyrighted between 1923 and 1978 are protected for 95 years regardless of how they were created. The public domain has been practically frozen: almost nothing will enter it until 2019, when the copyright protection in works published in 1923 will finally lapse, 95 years after it began.

A longer copyright term would seem pretty obviously to benefit creative people. According to Mary Bono, the widow and political successor of the CTEA’s namesake, “Sonny wanted the term of copyright to last forever.” In this wish, at least, he had venerated historical allies: William Wordsworth and Mark Twain were among the early advocates of a perpetual copyright term that would rescue literary estates from their demeaningly temporary status. To insist on the CTEA’s benefit to individual authors and artists, the law’s proponents loaded the Congressional witness rosters with prominent creative people and their heirs: Bob Dylan, Quincy Jones, Alan Menken, Carlos Santana, Henri Mancini’s widow and Arnold Schoenberg’s grandson all testified in support of a term extension that would sharpen artists’ incentive to create by increasing the time during which their heirs could benefit from their intellectual property estates. Opponents of the Bono Act, however, argued that the rhetoric of individual incentives masked the legislation’s higher-stakes objective: to prolong valuable corporate-held copyrights. They pointed out that intellectual property giants such as Time-Warner and Disney made major contributions to the Act’s Congressional sponsors and soft money contributions to the National Republican Senatorial Committee. And they warned that repeated extensions to copyright terms could eventually result in the extinction of the public domain altogether. But critics of the CTEA were hampered not only by corporate lobbying power and public apathy but by unlucky timing: the final version of the bill reached the Senate floor shortly after the delivery of the Starr Report and was passed by voice vote in the House while the nation’s attention was occupied with the Lewinsky scandal. The day before his impeachment hearings began in the Senate, President Clinton signed the Bono Bill quietly into law.

Since the passage of the CTEA, an anti-Bono movement has been building. Its latest incarnation is the Supreme Court case Eldred v. Ashcroft, for which the Court heard oral arguments on October 9. The plaintiffs in Eldred, many of them publishers who offer cheap reprints or free on-line versions of public domain works, are attempting to question the CTEA’s constitutionality. The Constitution empowers Congress to secure “for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Eldred plaintiffs argue that the 11 term extensions during the last 40 years have effectively violated the “for limited times” phrase. They add that even if extending the copyright term does increase the incentive for future creative acts, it makes no sense to make such extensions retroactive. If existing works are in the world, their creators must have had incentive enough to create them; why give those creators and their heirs the additional reward of longer terms, particularly when that reward comes at the expense of the commons and the democratic, educational and creative ends it serves? The CTEA’s defenders respond that private ownership tends to lead to better stewardship of existing works: who, they ask, would pay for the expensive restoration of vintage Hollywood films, if not the studios who hold their copyrights and can expect to recoup the expense? Meanwhile, academics, publishers, writers, librarians, filmmakers—people whose critical and creative work depends on a rich commons—wait to see whether or not the public domain will remain in cryogenic freeze for the next 20 years. The Supreme Court’s decision on Eldred v. Ashcroft, expected in July 2003, will crucially determine some of the future boundaries between private and public property, incentive and public discourse, piracy and creativity.

—Paul Saint-Amour is an assistant professor of English at Pomona.
Parts of this article are condensed from his forthcoming book
The Copywrights: Intellectual Property and the Literary Imagination
(Cornell University Press, 2003).

Illustration by Stephanie Dalton Cowan.