Re: Copyright Extension Bill Passes Congress

On 11/10/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> I am unconvinced that, for instance, Shakespeare could have
> prevailed today in court against Tschaikovsky or Bernstein,
> Plutarch against Shakespeare, etc. as copyright infringers.

I can't speak directly to Plutarch, but I am convinced that under today's "substantial similarity" standard, many prior authors would have prevailed against Shakespeare. As many on the list have pointed out, Shakespeare occasionally copied entire passages. Fragmented literal similarity is usually considered infringement.

Shakespeare would not have prevailed against Tchaikovsky on a copyright theory (T's music doesn't incorporate any portion of the play), but he might have prevailed against T on a trademark theory. He probably would have prevailed against Berlioz, Gounod, and Verdi, who all wrote operas based on Shakespeare.

Shakespeare might not have prevailed against Bernstein, et al., depending on how the court viewed the line between idea and expression; one could certainly envision a U.S. court holding that Bernstein had borrowed more than the "idea" of R&J, but nearly the entire plot as well. Certainly Shakespeare would have prevailed against the producers of the recent R&J movie starring Leonardo di Caprio. The point is the same: a rich public domain allows for the re-imagination and transformation of older works WITHOUT having to ask for permission or worry about lawsuits.

Unless you are prepared to argue that copyright should be perpetual, we must draw the line somewhere. The question remains: what is the appropriate duration of copyright? As the list demonstrates, there is no consensus on that question. What bothers me is that Congress responds only to the interests of those with money, instead of taking the public interest into account.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Nov 11 1998 - 22:46:31 GMT