Curse of the Greedy Copyright Holders, Wall Street Journal, 7/9/10

Tony Woodlief, Wall Street Journal; Curse of the Greedy Copyright Holders:

"'Immature poets imitate; mature poets steal," wrote T.S. Eliot. I am neither poet nor thief, so when I wanted poems at the start of each chapter in my recently published memoir, I sought permission. The poem that best describes my experience is "The Odyssey," navigating as I did between the Scylla of non-responsive copyright holders and the Charybdis of fee-seeking attorneys.

Modern copyright practices spur artists to unmoor our work from what has inspired us. Art—along with many artists supposedly protected by these laws—is arguably poorer for it.

The modern copyright battle is more interesting than its associated legalities. Advocates of copyright restrictions found a bête noire in curmudgeonly novelist Mark Helprin, who argued that Congress should extend "the term of copyright . . . as far as it can throw."

Opponents took this to mean perpetual copyright, which Mr. Helprin denies. In turn he accuses his vocal critic Lawrence Lessig, co-founder of Creative Commons—a nonprofit that encourages art sharing consistent with copyrights—of leading a movement to ravage Western civilization.

In reality, both sides agree with the premise embedded in the Constitution, which is that people ought not enjoy art without compensating the artist, any more than one can dine without paying the chef. They also recognize that while we want to give artists incentives, we don't want the costs to be so high that art appreciation—a difficult cultural attribute to re-establish once it is lost —declines.

Mr. Lessig appears to win on the economics. Mr. Helprin claims injustice in the fact that the family of a factory owner can inherit his property through generations, while the family of a writer loses rights to his creations in a relatively short time. Mr. Lessig observes, however, that copyright holders don't pay property taxes, which evens out financial returns over the course of a 95-year copyright.

But in dollar terms, some decisions by copyright holders, rather than optimize the artist's revenue and distribution, insure the opposite. When I asked to use a single line by songwriter Joe Henry, for example, his record label's parent company demanded $150 for every 7,500 copies of my book. Assuming I sell enough books to earn back my modest advance, this amounts to roughly 1.5% of my earnings, all for quoting eight words from one of Mr. Henry's songs.

I love Joe Henry, but the price was too high. I replaced him with Shakespeare, whose work (depending on which edition you use) is in the public domain. Mr. Henry's record label may differ, but it's not clear that his interests —or theirs—are being served here. Were they concerned that readers might have their thirst for Mr. Henry's music sated by that single lyric? Isn't it more likely that his lyric would have enticed customers who otherwise wouldn't have heard of him?

The copyright thicket is a growing frustration among writers and editors. One editor of a popular literary anthology (who asked to remain anonymous for fear of reprisals from publishers) confirmed that many publishers pursue illusory short-term profit at the expense of both profit and art. By demanding fees that most people won't pay, they forsake free advertising for the artists they claim to protect. If restaurants behaved that way, not only would they deny you the right to take home leftovers to your dog, they'd try to charge you for smelling their food when you pass by.

Further, this editor noted that one reason literary anthologies and college-course syllabi have replaced classics with less edifying sources like newspaper articles and diaries is simply that major artists in the American literary canon are too expensive to procure en masse, if not totally off limits. The estates of William Faulkner and Ernest Hemingway have historically restricted which stories can be used in anthologies, which means that students often have a narrow exposure to two of our country's finest writers.

For an idea of where this is all leading, note that the publishing world is being roiled by a controversy that erupted in the music industry several years ago, when musicians and record companies went after enterprises, like Napster, that facilitated music theft. It sounds noble enough, but it's not clear this actually benefited artists.

Economists Koleman Strumpf and Felix Oberholzer-Gee found that while illegal downloads deprive musicians of rightful compensation, they also advertise the artists' work to more people, many of whom subsequently go out and buy the music. The net result is revenue-neutral.

As a memoir author, I reached the height of frustration when I realized it was going to take heroic effort to use J.R.R. Tolkien's "Bath Song," which is controlled by a division of my own publisher's parent company. Between that, and fee demands or non-responses from other publishers, I turned to my poet friends.

"Will you," I asked them, "give me a poem in return for a book and dinner?" Now my book has some lovely poems by very fine poets most people don't yet know.

So perhaps I shouldn't complain. It's hard to borrow work by recognized artists, but when one door closes, as they say, another door opens.

Still, I can't help but wonder if major publishers might want to let economists, rather than copyright attorneys, govern their decisions in this area. If you agree, perhaps you might quote this essay to them. I'm sure we can work out a reasonable fee."

http://online.wsj.com/article/SB10001424052748704608104575220551906611796.html