Re: droit de suite

On Wed, 12 Apr 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
>
> On Tue, Apr 11, 2000, Pat Sloane <patsloane[_at_]aol.com> wrote:
> >
> > Fifty or seventy years is not as unreasonable as it seems,
> > especially if the intent was to allow the creative person to
> > provide for reasonably foreseeable immediate needs.
>
> The intent of copyright, Jeroen and I maintain, wasn't to allow
> the author to support relatives. It was (and is) to encourage
> new creative expressions.

I completely agree with that statement, Eric.

For every example such as Bloom's child, there are several of heirs who CONTROL works without getting financial benefit, but PREVENT new creative expressions of derivative works.

1. George Orwell's widow didn't like the first film made of "1984" and withdrew it from circulation, a suppression that the totalitarian governments referred to in the book could not achieve.
2. George Gershwin's heirs won't license productions of "Porgy and Bess" in blackface, but only with African-American actors. This, despite the impression that many of us have, that Gershwin "stole" much music and ideas from the black community, and that blackface is considered by many as a very legitimate technique in drama (see "Othello").

What I'm not getting here is this: why does it matter WHO is doing the "preventing?" Assume for a moment that John Doe writes a novel when he is 20 and the term of copyright is 50 years from date of first publication. John lives to be 77, so he is alive for the entire term of the copyright. In year 33 of the copyright term, Mark Smith has an idea for a new and creative derivative expression of that novel. However, he cannot proceed because John Doe has exclusive rights for another 17 years. Despite public acclaim for his work, John has decided that his novel was sophomoric in nature and not his best work. In year 46 of the copyright term, Mark Smith passes away, having never had the opportunity to produce that derivative work. In year 50, the copyright expires. In year 61, Bill White is able to and does produce a derivative work. But, of course, it is not the precise derivative work that Mark Smith would have produced.

In the second scenario, John Doe only lives to be 50, so by year 33 of the copyright term, he's been dead three years. He had, however, entrusted the rights of his work to his daughter Jane, who incidentally doesn't derive financial support from royalties on the novel because she pulled it from circulation. She does so not for John Doe's reason but because she feels the novel makes a statement that is not in keeping with the social mores of the day. Her views are not shared by everyone, by the way. She denies licensing to Mark Smith, who again passes away during year 46 of the term and doesn't produce the derivative work. Again, Bill White does produce a derivative work in year 61 which is not precisely what Mark would have produced.

In either scenario, the derivative work by Mark Smith was unable to be produced sheerly due to timing. Had he lived to past the 50 years of the copyright, he would have been able to produce HIS unique creative expression of a derivative work. The only difference in either scenario is *who* actually made the decision and *why*.

The point I'm getting at is that no matter what the length of the copyright term (called X, be it 50 or 70 or 800 years), there is a prevention of potential derivative works while the holder of the rights (whoever that is) has exclusivity. But whatever the X term is, it is not unlimited, and when it expires, new derivative works will likely occur.

For that reason, the Gershwin and Orwell examples above lead me to feel that the issue of contention surrounding the length of term has more to do with a perception that the "creators" wouldn't have chosen the positions that the respective heirs have. However, the creators in each instance saw fit to entrust their rights to these parties, and that should be sufficient to stand up as "what the creator would have wanted or condoned."

I'll be waiting by the hotline for what I'm sure will be a flurry of responses on this one. ;-)

Marty Hayes
<9ball[_at_]hostsite.net> Received on Fri Apr 14 2000 - 06:16:21 GMT