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Taking Money From Our Pockets

Folks who read here regularly know that I have a strong belief in upholding copyright law. Part of it is, admittedly, in my own self interest, as I've created works that have some value to them (or so I'd like to think). I would say that anyone who makes money off their creativity has some vested interest in maintaining certain rights over their work, no matter what they may say aloud.

There's also a certain level of respect for the creator that copyright should imply, but that doesn't always come along with it. A few years back, a man approached me about reprinting "Kaddish for the Last Survivor" for distribution to synagogues during Yom Ha'Shoah (Holocaust Remembrance Day). In his very first email to me, he said that he was offering no money, but that the exposure would be good for me. I pointed out to him that I earn part of my living off of my writing – in fact, there was a time when I had no other source of income – and I suggested that he pay me $100. His response was to say forget it. The irony was that if he had approached me from the start by asking how much I would charge him for the reprint rights, I would have offered the story for free. (A lesson to everyone.) But approaching me as if my work was valuable enough for reprinting and sharing, but not valuable enough to give me recompense, rubbed me the wrong way.

Of course, it could have been worse. He could have run off copies without ever telling me.

The real difficulty comes when people are either ignorant or clueless about copyright. Eric Berlin, who is a playwright among many other things, just shared an incident under the blog post title Dusting off my playwright hat for a moment. A woman who is part of a group putting on his play has invited him to attend the performance. The only problem is, it appears that the group might not have bothered to license the rights. I say "might not" because Berlin notes the possibility that they might have tried to secure the rights but failed, due to the disorganization that exists at Samuel French.

However, assuming the group did in fact not bother securing rights, it puts Berlin in an interesting situation. The young woman who is playing the lead has praised the play very strongly, and any writer would love to hear his words praised in that fashion. But...but. If we don't pay our creative class for their work – if in fact we remain ignorant to the financial value their work should have to them – then what are we as a society saying to them?

Copyright © Michael A. Burstein


I've actually been thinking of late of you and copyright and your earlier posts, and I'm glad you linked to Eric Berlin.

With my high school classes, I would never be able to get the headmaster to pay for license rights. Ever. I can't get him to buy soap for the bathroom. My classroom doesn't have a TV, overhead projector, or cockroach control. We have folding metal chairs at bingo hall tables and 10 year old textbooks. We don't have a drama department, of course. I thought about forming one but we'd never be able to do anything where fees came into play (no pun intended). Alas, poor students.
There's actually been some discussion in SFWA regarding the issues teachers deal with when it comes to wanting to create handouts for their classes.

Frankly, having been a teacher myself, I can certainly sympathize.
Okay I thought use of copywrited works for teaching fell under some of the "Fair Use" rules (or at least some sub set of it) But then IANAL... a quick google check show this link which may help
As Eric points out, a large portion of blame rests with the licensing agencies, who are understaffed to handle the large number of small requests that come in. When I was in charge of reconciling the mechanical licenses for a local community chorus, it was impossible for us to find out which agency to pay for about 20% of the back royalties we owed. AFAIK, that money is still sitting in the escrow account we set up in case anyone ever showed up to ask for it.
The Copyright Office is working on procedures that might allow for a copyright registry, so we would always know who holds the rights to various works. It would be nice if they could get such a registry to function properly.

The escrow account is the standard way anthologists tend to deal with this issue as well.

I'm not sure the equation holds

As a lawyer, I keep getting back to the fact that copyright, at least in this country, has nothing to do with the actual value of the work. This off the cuff reply is subject to the same rights as my professional blogging, subject to the same rights as a book I spend years researching (at least initially).

I know a number of writers and artists who make the same connection that money=respect. But this has nothing to do with respect. We give you rights so that you cna make a living, because if you couldn't control distribution, you could not afford to produce works, others could not afford to publish them, etc.

In Europe it is a bit different. Some works are entitled to unwaivable rights given to the creator, on the theory that the creator has invested him or herself in the work and therefore inherently has some permanent, non-transferable rights. But that is not the case here.

The distinction is important because it goes to policy. If we class this as about incentives and production and so forth, we get rational economic policy. We want to provide enough incentive and control to creators 9and others involved in the creative process) while not strangling fair use or locking up works for so long that the burden of maintaining the right imposes broader costs on others.

But once we make this all about respect, it is not a matter of rational policymaking. And, as I pointed out in my recent discussion of what exactly does a license to Urinetown provide, it gets very hard to say who is contributing how much to the creative process, and how do we apportion out the "reward" and "respect" for each contribution?

Re: I'm not sure the equation holds

>>In Europe it is a bit different. Some works are entitled to unwaivable rights given to the creator, on the theory that the creator has invested him or herself in the work and therefore inherently has some permanent, non-transferable rights. But that is not the case here.<<

I wonder if this has anything to do with why several authors I know do a great deal better with sales in Europe than here?

Re: I'm not sure the equation holds

The way I see it, the most important thing copyright law ought to do is to protect the possibility for creators to one day earn a living solely from their creative works. You do open up a bunch of interesting other issues, some of them difficult to resolve, but to me the guiding principle is what I just stated.

Re: I'm not sure the equation holds

Is the principle that sufficiently successful creators should be able to one day earn a living solely from their prior creative works, or that it should be possible for them to eventually earn a living on their works as long as they continue to create (or retire on assets accumulated, by whatever means, through a decades-long career)?

Re: I'm not sure the equation holds

I would say both. The problem is that the vast majority of creators can't, but the news is filled with those who do, so the average person has an incorrect perception of how the rest of us are doing.

I think it was James Michener who said that a writer could make a fortune in America, but not a living.
I wonder why it is that artists (I mean of all varieties, including writers) seem to be the only professionals where people assume they should produce work for no payment. Is it because our work can be so public? Does it make a "connection" to people and therefore they feel like it belongs to them? Or is it because the stereotypical arr-teest thinks getting paid for your art makes you a hack, and a lot of people believe that stereotype?

Of course, being the snark that I can be when I set my mind to it, I also confront these people when I meet them with something along the lines of "I'm very impressed that you do X job for free." When they naturally respond "I don't!", then of course you kick in the part about "Neither do I."
Well, there's software, too, and certain components of graphic design (which you may consider art). This is just a theory, but I think it may have to do with the tangible vs. intangible divide. I can touch a shoe, or a car, or a widget, and most people would have second thoughts about transporting any of those out of a sales location without payment. But then some people will turn around and think that if they're able to duplicate software, or rely on someone else's biography research, or play a videotape/DVD of a movie and charge 30 people to attend in order to fund their student group, or play commercial music over the school sound system instead of ringing bells to signal class changes ... why should they have to pay for any of that? They aren't stealing a physical software DVD, or the actual written biography, or the videotape/DVD, or the music CD, so they aren't doing anything wrong, right? There's a systemic lack of regard for intellectual (or any non-physical) labor or property. Many people are very stubborn in their refusal to accept that if they did not create it, they don't automatically own all rights to use it; or that if they buy one format, they don't automatically have all rights to all uses of that format, even those that involve duplication and propagation, even those that reap monetary benefits.

And in (over?)reaction, some companies try to shut down all forms of fair use, and other companies patent genes to ensure they can make money off their research related to the genes ....
Good point--the more I think about that divide angle, the more it makes sense.
(And I should have thought of software too, considering that I have friends in the industry who complain about this from time to time.)

Not that I would ever want to give up libraries, but I suppose this idea is also encouraged by the fact that we can check out books and videos (and in some places CDs) for free, and that so many books, etc. and so much software is available for free online.
Too many people seem to think that if they're paying for the physical copy (e.g. running off their own photocopies), they aren't really stealing. Oddly, many of those same people would recognize that sneaking into a non-full theatre is theft, even though they could make the same sort of argument (they added no cost).

I've never made my living from music, but I've had enough income from tape/CD sales to have to do tax paperwork. When my group published its first album I gave a copy to a (supposed) friend who had expressed interest. When I next saw her she told me how much she enjoyed it and that she'd run off copies for a bunch of her friends. Um, right. She didn't seem to understand that she had stolen from me and that in the world of small press, that was tangible. She wasn't ripping off RCA and depriving them of a thousandth of a percent of their sales; she was ripping off me to the tune of several percent of the run. It wasn't the money; it was the principle of the thign. Needless to say, I didn't give her later recordings.
The question of artists having a property right in their creations is separate from the question of artists being paid for their work. It's easy to imagine a regime where there is no copyright but artists are paid by the state (as in the old USSR) or by wealthy patrons (as in the Renaissance era). It's even easier (alas) to imagine having a copyright that is indisputably your property but has no market value.

For most property rights that people deal with in their everyday life, the formal rules for "what's legal" are entangled with long-standing cultural norms of "what's fair". E.g., when rents go up precipitously and people feel that landlords are charging "too much", it can lead to the passage of rent-control laws. But between the late 18th century and the invention of the photocopier, the average person didn't have to think about copyright at all; rights were negotiated among artists, publishers, and broadcasters, the development of the law reflected the tug-of-war among these interests, and everyone else just paid retail. Now every individual can be a publisher, but the cultural norms of fairness that the average person has learned don't match the law of copyright that all of a sudden applies to them.
I thought Analog held the rights to "Kaddish"? Doesn't the publisher usually hold the rights to a work, unless you're famous enough (i.e. Harlan Ellison) to negotiate a different arrangement? That's the case with the peer-reviewed scientific journals. But it's usually not difficult to get reprint rights from them.
In the early part of the twentieth century, the pulps did in fact buy all rights to the stories. But years of writers fighting against that have resulted in better deals for the creators. Today, most fiction magazines only purchase a specific set of rights, including limited reprint rights.

For a writer, this is good. But as a reader.... There have been a few times when a magazine wanted to reprint a full set of their issues in a microfiche or electronic format, and were stopped by these contracts.

December 2016

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