Re: Article on Protection of History

On Sunday, April 19, 1998, James Michael Rogers <jetan[_at_]ionet.net> wrote:
>
> On 4/18/98, John Shaeffer <shaeffer[_at_]oslaw.com> wrote:
> >
> > I differ from you view in believing that how an author chooses to
> > express the facts of history -- for example in the telling Cameron's
> > "Titanic" or the scholarship of Joseph Ellis for his exposition on
> > Thomas Jefferson in "American Sphinx" -- deserve protections under our
> > Copyright laws beyond literal copying. (See Hoeling v. Universal
> > Studios, )
>
> You are talking about two different things here, aren't you? Cameron's
> expression in Titanic is entitled to a relatively wide protection.
> Ellis is entitled to a similar protection but to the extent that he
> asserts his work is literally, objectively true the underlying nuts and
> bolts are not protected. I perceive this as a good thing. By the
> standards you appear to be arguing for, quantum mechanics (the whole
> shebang) would be under copyright, wouldn't they? It is difficult for
> me to imagine that such a policy would promote anything at all.

I think we have reached some common ground here. I understand that you agree that the literary expression encompassed in any work founded on history should be entitled to broad copyright protection. Unfortunately, the current state of the law does not share our consensus.

We continue to differ on the extent to which there is any "objective truth" in any exposition of history other than a simple recitation of facts. The current state of Copyright law seems to align itself with the scientific objectivity school of history, which fell out of favor among the academic community more than 50 years ago. While historians are retrenching from pure deconstructivism -- which taken to its extreme rendered the study of history meaningless -- the overriding literary ("creative") elements involved in any expression of history remain critical in any evaluation. It is this broader notion of creativity that is absent in the current discourse on the protection of works of history under the copyright law.

Just so you know where my bias rests, I was counsel to Barbara Chase-Riboud in her case against DreamWorks over the film "Amistad." It was through that experience that I learned first hand the confusion surrounding the protection of works founded on historical fact

John Shaeffer
Shaeffer[_at_]oslaw.com Received on Mon Apr 20 1998 - 21:03:06 GMT