On 7/12/98, Mr. Scarpetti <mscarpit[_at_]asnt.org> wrote:
>
> On Fri, July 10, 1998, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
> >
> > Mr. Scarpitti and I seem to disagree on the what the copyright status
> > of emendations should be. By an emendation I mean a scholarly
> > correction to a prior author's text. It can be based on a collation
> > of manuscripts and editions, or on experience and conjecture. Changes
> > of this sort, to my mind, are not "original works of authorship" of
> > the scholar who makes them. The scholar is trying to establish what
> > the text of an original work of SOMEONE ELSE's authorship was.
> > Ordinarily, then, the scholar should not be entitled to a copyright
> > in the emendation.
> >
> > For this reason, the court in the case of Desclee & Cie et al. v.
> > Nemmers was wrong to find copyrightable the Solesmes rhythmic
> > notation. The Solesmes scholars insisted that their system reproduced
> > the ancient rhythm of Gregorian chant. Scholarly opinion was against
> > them. Most scholars consider that old Solesmes system to be a
> > new-fangled interpretation with no historical roots. But for copyright
> > purposes, the monks of Solesmes should have been held to their
> > representation of their rhythmic interpretation as ancient. Since
> > this amounted to a denial of originality, copyright in the rhythmic
> > notation should have been denied.
> >
> > Under U.S. law as I understand it, a new reading based on an
> > unpublished pre-1978 manuscript does support a copyright if the new
> > reading is published before a certain deadline. The proprieter of the
> > copyright in the new reading is the person to whom the state-law right
> > of first publication was assigned, and not necessarily the sholar who
> > actually brings out the new edition. This mining of unpublished
> > manuscripts is, I believe, the technique that has been used in the
> > U.S. to keep parts of some of Emily Dickinson's poems under copyright
> > to this day. But as I read, once the copyright in unpublished
> > pre-1978 works expires, this method will no longer work in the U.S.
> >
> > In the case of Shakespeare's plays I doubt this approach would be
> > possible. Ordinarily I would consider everything in a published
> > edition of Shakespeare that was represented as Shakespeare's to be
> > in the public domain, even if no prior edition had precisely the
> > same text of Shakespeare's work. How much effort the textual scholar
> > put into establishing the new readings is irrelevant. Copyright
> > extends to authorship, not effort. Our hypothetical professor
> > should be allowed to copy the text of the play itself as many times
> > as he likes, from any edition. I would also consider it a fair use
> > of the copyrightable portions of the edition if he were to make one
> > copy of the play including the copyrightable notes, then use scissors
> > and paste to lay out only the text of the play, without the notes,
> > for further copying.
> >
> > Of course, nothing in this post constitutes legal advice or
> > establishes a lawyer-client relationship, etc.
>
> In the case of some of Shakespeare's plays, which we have in several
> "second-hand" versions, there is no "author's text". What has been
> published as his plays was in many cases taken down by others orally,
> sometimes mis-heard. There are several versions of some plays, all
> incomplete or defective. The plays were often revised, so we have
> isolated "snapshots" of the work-in-progress. Mr Shakespeare did not
> write for publication, but for presentation, and others gathered his
> works in the folios. A modern edition of Shakespeare is, therefore, a
> synthesis of many pieces, rather than a mere collection of emendations.
> It's rather like reconstructing an ancient building from severely
> damaged ruins. The pieces may be there, but it will take an architect
> (not a repairman) to re-create the original.
I think that the point that Mr. Phillips is attempting to make is that even the type of exhaustive reconstruction which you describe is insufficient to create the requisite "originality" in the Shakespearean work itself, since by defintion the scholar/editor is attempting to *more accurately* copy the original public domain work. A note or foreword which explained the textual choices made would, almost certainly, be copyright protected but I don't think many of the lawyers or law Profs here will agree that the extension that you are describing will fly, though I would welcome hearing a fresh wrinkle on the idea.
James
(Heck, I ain't tryin' to give legal
advice neither...Ptooi!)
James Michael Rogers
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