Re: copyright under stress

On Thu, Jun 08, 2000, David Hale <dhale[_at_]aggt.com> wrote:
>
> [...]
> While I agree that the reaction of the professional theatres was
> tragic in this case, I have some difficulty with equating this to
> stifling creativity. Is it creative to put on a play? Yes. Is it
> more creative to write a new play which doesn't infringe a copyright
> and then put on that non-infringing play? Almost certainly. I would
> submit that this second from of creativity (which patent jargon would
> call "inventing around the patent") is really the only one that
> copyright is concerned with, for better or for worse.

In the case of copyright for plays, I believe it is more the question of creating derivative works, than writing completely new plays with unheard-of plots, subjects, and characters.

A better example would be "Porgy and Bess" by George Gershwin -- the Gershwin heirs prohibit actors in it from playing in blackface -- the London critics blasted that and correctly in my view placed blackface back in the mainstream of theatre art. Copyright there restricted expression and creativity just as much as Gershwin's copyright -- of what really was the popular culture of African-Americans he must have heard on the streets of Baltimore or Charleston or Harlem -- also restricted creativity of those who originated those expressions.

Schoolchildren especially are more concerned with reworking parts of our common culture (including popular culture) to make them more accessible or applicable to their situation. This type of collection or creation of derivative works, based on works that are either within copyright or not, cannot be denied to be creative. After all, it is really what Shakespeare is said to have done.

> Later in your post you mentioned that copyright terms have become
> too long -- this is probably a direct result of society / Congress
> placing too much emphasis on the creating of new (non-derivative)
> works function of the copyright law to the exclusion of other
> valuable social goods which may be served by a shorter term. The
> above example, on average, would be helped by a shorter term (the
> school children still might not be able to do Oliver, but the realm
> of available works would be greater at least). On the other hand,
> giving the school children more choices reduces their incentive to
> invent around. It's a two-edged sword.

Yes, but more choices still give incentives to creativity to derivative works just as much as the completely original "inventing around" does. Thus reduced copyright term does enhance creativity of expression.

For example, the play by Anton Chekhov "Uncle Vanya" is out of copyright. David Mamet wrote a version of it "Uncle Vanya on 42nd Street" which is under copyright. I publish on my web site a new English translation of "Uncle Vanya" that is modern just as Mamet's (better, I modestly hope) and also free for anyone to perform. That way the actors can adjust their lines to the audience and enjoy full creativity. It isn't always necessary to "invent around" to have real art. But long copyright terms do restrict art.

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf