Many lauded the vision behind the Creative Commons project as Open Source for artists, knowing that creation is built on a foundation of what came before, and if what came before is locked up in a vault for 70 years after the death of its creator then our modern poets, novelists, musicians and artists of all stripes are hampered from using any of their predecessors’ work for a period which encompasses their entire lifetimes. The Creative Commons alternative shed light through the prison window, letting the more liberal of our artists offer their work to be used by others on such liberal terms as “free,” or “free, with attribution,” or “free, but not for commercial use.” In fact, if you can think of a situation in which some bundle of rights is granted to the public in connection with a work, then you can probably find a Creative Commons license somewhere that fits it.

The Creative Commons movement is obviously a close relative of the Copyleft movement, which grants a free license for use on the condition that all derivative work remain free as well (i.e., if you use my stuff for free, then your stuff has to be free too). The idea behind the movements centers on the notion that the public has a paramount interest in access to knowledge and the ability to use that knowledge to further the interests of humanity. While this may sound vaguely pretentious, the notion of the Commons is as old as our society, and is the reason we still have such things as Golden Gate Park, Yellowstone, the Grand Canyon, the Appalachian Trial, public beaches, the National Museum, and other treasures. The Commons includes things that are deemed to be “ours” as a people, and that cannot and should not be appropriated by any person for their own personal use and profit. As with parks, the broad category of “human knowledge” has long been held to belong to us, and not to any corporate entity or oligarch. Thus, you can go to your public library and teach yourself physics from Newtonian first principles (in theory, assuming your library is open anymore), or you can do the same thing online with texts that are in the public domain or through an Open Learning course (like the edX program jointly sponsored by Harvard and MIT).

You might ask why a more relaxed copyright scheme is preferable to what we currently have, since we seem to muddle along well enough with things as they are. Art is being created, after all, books are still being written, choreographers are still indulging their fantasies of becoming the next Martha Graham — so why does Creative Commons matter? The answer to that lies in the question itself — i.e., why should we just muddle along? Why should we change the copyright laws in a way that serves corporate interests at the expense of artists?  When the latest copyright scheme — the Sonny Bono Copyright Extension Act (facetiously known as the Mickey Mouse Protection Act) —  was pushed through Congress and extended copyright by some 20 additional years, the reaction in the intellectual property community was a resounding “What??!!! Are you kidding me??” Copyright was originally intended only to last 14 years as an incentive for creators to continue to create, but of late it has  grown interminably. Its tentacles have stretched until we are forced to bow to such monstrous notions as The Happy Birthday Song being protected by copyright almost 100 years after its creation, generating some $2MM in annual revenue for the heirs of the heirs of the heirs of the original creator. The current version of our copyright laws is not a tool for enabling the transmission of knowledge, or an incentive to spark creative genius, but a weapon to extract fees from users and stifle creativity itself. In a world where 500 years ago the poets already lamented that there was nothing new under the sun, narrowing their rights to exercise poetic license seems plainly absurd.

What Creative Commons attempts to do is to loosen the stranglehold of copyright and give artists some measure of access to work from our current age without being crippled by licensing fees or facing copyright infringement lawsuits for sampling a few bars of music. It seeks to expand the realm of knowledge, rather than contract it. While it is perhaps a stepping stone to progress rather than the real progress I would like to see (i.e., a modification of existing law), it is improvement nonetheless.

It may not be perfect, but we should not deride improvement for not achieving perfection.

This work by Robert Scott Lawrence is licensed under a Creative Commons Attribution 3.0 Unported License.

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Some might say that there is neither rhyme nor reason to the rule of plagiarism when the great Bard himself (whether he be William Shakespeare, Edward de Vere, or some other creature) was among the most liberal of “borrowers” of his time, prone even in the late 1500s to call upon heaven to turn a blind eye to the plotlines and dialogue he took from Italian drama and refashioned into elegiac English pentameter. The gods favored Shakespeare for his genius, just as we favor our own homegrown talents. Even after all these long centuries, love is still blind to the transgressions of those we hold dear.

The question of plagiarism is not nearly as much of a wild goose chase as it was in what some refer to as the Golden Ages of literature. Though those may have been better days (just as we may have seen better days), nowadays we can parse a script for plagiarism with the push of a button, and publishers, universities, scholars and even high schools have now invested in software that vets essays for misappropriations from Wikipedia and the ubiquitous internet. There is even software that catches paraphrasing of plagiarized text, so rewriting passages by changing tense or the names of characters, or slightly modifying the dialogue from a scene will almost invariably be found out sooner or later.

But is this demand for wholly “new” material really too much of a good thing? Artists have always been influenced by what they read and saw, and style and phrasing, plot and dialogue are absorbed almost by osmosis, so the occasional similarity or recreation of a long-forgotten passage is not always conscious plagiarism. And where it is a conscious appropriation, there is nothing necessarily inappropriate in having copied the material.

For example, my recent post, Plagiarizing Shakespeare, takes individual lines from Othello, The Tempest, Merry Wives of Windsor, Cymbeline, The Merchant of Venice, Hamlet, Comedy of Errors, As You Like It, Timon of Athens, and Romeo and Juliet, and rearranges them to do something entirely different with the language. I am not writing a play, or fashioning a poem, but reusing language from 500 years ago to make something new, weaving in transitional phrases and other original content, capping it off with a misquoted line from George Meredith, and creating a pastiche that is something entirely new.

Would this be deemed fair use under a modern copyright analysis? I would argue strongly that it is, for copyright protects the exact phrasing of the work, not a snippet here and a snippet there snatched from random texts and rearranged to suit their new creator. An enterprising artist could create an entirely new play using lines lifted from 100 other plays, and the work would be new, original, his – not copyright infringement.

In this modern day and age of litigiousness we fear to borrow, since our idea of what is fair will not necessarily jibe with that of the copyright holder, or with that of any judge deciding the issue of infringement. But given our penchant for sacrificing the old in favor of the new – indeed, what some would say is a preoccupation with newness at the expense of almost anything else, including virtue – it is unsurprising that some dare to fly where others fear to tread. The re-mixers, samplers, mash-up artists and liberal borrowers are not only a force to be reckoned with but also a force for good. For there can be no doubt that we lose beautiful language, apt turns of phrase and broad flights of fancy if we are obliged to leave them untouched in dusty library tomes, where they will die unseen by a generation that demands that its content be hot off the press, fresh, newborn like Adam on the first day of creation.

Truth be told, borrowing is an essential part of the creative process, transforming the old into the new, making matter out of dust, gold from glitter, a silk purse out of a sow’s ear. We would do well to remember that appropriation is neither misappropriation nor misattribution, but sometime simply just another form of genius.

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Since I received command to do this business I have not slept one wink. If you asked it of me, I could a tale unfold, whose lightest word would harrow up thy soul, freeze thy blood, make thy two eyes, like stars, start from their spheres, thy knotted and combined locks to part and each particular hair to stand on end, like quills upon the fretful porcupine.

At thy instance I ran from pillar to post, crossed channel and ocean wide, and was none the wiser for my travails. Was there ever any man thus beaten out of season, when in the why and the wherefore is neither rhyme nor reason? But love is blind and lovers cannot see the pretty follies that themselves commit. Yes, for a score of kingdoms you could wrangle, and I would call it fair play.

Can one desire too much of a good thing? I would see thee again, though we have seen better days. Put out thy hands, and light me a beacon for home. Send me a sign to come, and not one word more. I cannot bear this parting, so rich in sorrow, so protracted, so delicate, so poor.

The bell hath struck twelve; the minute draws on. Now, hot blooded Gods assist me! I yearn for the haven of thy heart. If thy wits run the wild goose chase, I am done, but thou hast more wits than I, and can see this through to its foregone conclusion. Though it be but a dream, remember in our shipwrecked days there was an hour when eve was left to us, and hushed we sat as lovers to whom time whispered.

Call me home, my lady, that we two can be as one.

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(1)  No copyright notice ≠ no copyright

Don’t be in a rush to copy text or photographs that don’t bear the magic symbol next to them, for the magic is no more. Although from 1923 to 1977 a work not accompanied by the copyright symbol lacked protection – and is now forever in the public domain – that was then and this is now. In the United States almost every work created after April 1, 1989 is automatically imbued with copyright protection whether it bears a notice or not. Unless there is express notice that the work you want to use carries a share-alike licence or is “copyleft,” you would do well to assume that it is copyrighted and may not be copied without prior permission.

(2)  It’s not copyright infringement if I give it away

This is not Lord of the Rings; just because you offer it freely does not mean you get a free pass on copyright infringement. Though free dissemination of copyrighted materials is a lesser harm than infringement-for-profit, you still face substantial liability even if you do not charge a dime. If you have lingering doubts, just hearken back to the not-so-long-ago, to the Napster and Grokster lawsuits, and the piteous case of the 10-year-old girl the RIAA sued for for downloading a handful of songs. If you improperly copy something that has been registered with the Copyright Office, then you potentially face statutory damages in the six-figure range.

(3)  If I found it on the internet, it is in the public domain

Uh . . . no. Epic fail. Nothing is in the public domain anymore unless it is really old. Although copyright originally had a term of a mere 14 years, it now goes on . . . and on . . . and on . . . seemingly forever. This is due in no small part to the efforts of our favorite corporate partner, Disney, which engaged in concerted lobbying to pass the Sonny Bono Copyright Extension Act and prevent Mickey Mouse from falling into the hands of 10 year olds in Ohio who want to create animated characters (“Sorry, Steamboat Billy, your comic never made it to the shelves.”). Unless the work has expressly been donated to the public domain or bears some sort of Creative Commons license, beware. Forewarned is forearmed.

(4)  But it was fair use!

Says who? The fair use doctrine protects the use of portions of a work for purposes of commentary, news, research, teaching, and — occasionally — parody, but is not a blanket exemption that allows for wholesale appropriation of a work. Thus, quoting select passages from a novel is fair use when writing a critique for the New York Review of Books, but selling copies of someone else’s short stories on your website is not. The area of fair use has experienced something of a sea change in recent years, and spawned a veritable hornet’s nest of conflicting opinions. Fair, of course, is a subjective interpretation, and your interpretation of fair might not jibe with what the copyright holder thinks, nor with what a judge thinks.  So, without dissuading you from sampling, dabbling, fan fiction, or any other form of homage to your favorite writers and authors, proceed with caution.

(5)  If they fail to protect their rights, they lose them

Incorrect. You are thinking about trademark law, which demands vigilance and a never-ceasing search for evildoers in order to maintain the sanctity of the trademark. Copyright is never lost these days, unless it is explicitly given away.

(6)  It is okay to create stories based on other works

[Loud honking noise stage left] Again, no, not usually. Fan fiction which uses characters and places from other works is a no-no, as it is clearly a derivative work as defined by copyright law. Even if you spent three years writing the next Twilight book, during which time you expended an enormous amount of creative energy, you would still be engaging in copyright infringement. That said, there is a thriving fan fiction community on the internet, and a number of authors actively encourage fan fiction as a source of viral advertising (e.g., Lois McMaster Bujold). Moreover, some enterprises, while not actively encouraging fan fiction, do little to dissuade their loving readers from posting unauthorized works, presumably on the theory that no publicity is bad publicity.

And that ends today’s diatribe about the perils and pitfalls of copyright infringement. Stay tuned for cutting edge commentary on copyleft and the creation of the creative commons, coming to an RSS reader near you soon.

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This assumes, of course, that The Hobbit is going to be a blockbuster success much like LOTR, which – although there is no such thing as a sure thing – is as close to a sure thing as anything is likely to get. If I had my druthers, I’d sell all my Apple stock and politely ask to help fund the production costs of The Hobbit in exchange for the merest sliver of the profits. Not the gross profits, of course, as I am intimately familiar with Hollywood accounting (though not as familiar as Peter Jackson), but the good old fashioned “net profits” that we common citizens of the free world generally understand as “what’s left over after we pay all the costs.”

Among other indicia that Hollywood and all those associated with The Hobbit think the film is going to be the next coming of the Titanic – only more titanic – are the spate of lawsuits being brought by the hallowed-but-more-recently-vilified producer Saul Zaentz (the brains behind One Flew Over the Cuckoo’s Nest, Amadeus, and The English Patient), who cannily bought the rights to The Hobbit long ago and funded the memorable animated version of LOTR by Ralph Bakshi back in the days of yore. Recently, Zaentz and his team of lawyers have been firing off cease-and-desist letters to virtually anyone who mentions the word “hobbit,” including a sleepy British pub called – guess what? – The Hobbit, which has peacefully coexisted with the  intellectual property rights of Tolkien’s heirs and assignees for over 20 years, and was founded in homage to the master’s great work.

If you have the time and interest, a quick TESS search will reveal that Zaentz’s lawyers have sought to trademark THE HOBBIT for virtually every category of international goods, including everyone’s favorites – international classes 32 and 33 for beer, spirits, and sundry alcoholic beverages. Shutting down a long-standing UK pub called The Hobbit no doubt seemed like a good idea to some pubescent trademark attorney whose nose was put out of joint by a drink called The Gandalf (“How dare they insult the canon like that?”), but the public backlash sparked by the threatened lawsuit was a bit more than Zaentz had bargained for. A spate of articles condemning the soulless practices of Zaentz went viral, petitions went out asking for a green uprising by all those living under hill and dale (i.e., hobbit lovers), and thousands of children of the ‘60s named Frodo formed a last coalition of men and lawyers to prevent the forces of evil from overwhelming the peaceful shire in which The Hobbit lay.

Ultimately, Zaentz relented and offered to allow the pub to exist if it paid a de minimis licensing fee. In an act of spontaneous generosity, the actors Stephen Fry and Ian McKellen today announced that they had paid the licensing fee on behalf of the pub owners, so for now the brouhaha has subsided, and the brews are on the house.

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It did not.

It was merely your standard, cookie-cutter, off-the-shelf WordPress theme with no modifications or alterations, no unique HTML code and no embedded processes. The site did not even contain original photographs, since the web designer he had hired contented himself with stock photos purchased from Getty. While they were nice photographs, and the site itself was attractive, there was nothing about it that would cause a lawyer to make haste for the patent office.

After looking at his site, I told my friend I did not see a basis for a patent application, so he switched gears and asked if I could trademark the website, or copyright it. While both of these options are possible – and, in fact, trademarking a URL has historically been fairly common – of late the PTO has been turning away dot-com trademark applications like unwanted junk mail. And although copyrighting the content of a static website is technically feasible – all one has to do is send off a copy of the text with a check to the copyright office – as a practical matter it does not serve much purpose. Under prevailing U.S. law whatever you write and publish to the web is automatically protected by copyright, and formally registering that material with the government merely gives you the right to sue any subsequent infringer for statutory damages. While that may be enough to justify registration for some folks, usually it is just a waste of $35.

The one exception to this would be if you created a website using a new language (e.g.,YOU-NIX). However, unless there is something special about the code which you fear will give rise to copycats or make it attractive to the BitTorrent crowd, there is very little likelihood that your source code is going to wind up being sold at underground swap meets. If it does make its way into the public domain, then you can still register your copyright and sue for infringement. The after-filed registration merely limits your available remedies, and forces you to prove the factual issue of when the material was created. When I explained all of this to my friend, he shook his head and muttered something about the opacity of the law. Then he started telling me about a great investment called derivatives. Ten minutes into his convoluted explanation about subordinated notes, second tranches, and slicing-and-dicing sub-prime mortgages I gave up and mentally departed the scene. Even if it does have a few flaws and inconsistencies (e.g., the FACE trademark), intellectual property is still far more logical than investment banking.

The only derivative I want to concern myself with is “derivative use.” The analysis may be obscure, or obtuse — it may even be opaque — but unlike financial derivatives the theory behind it remains constant. And you can take that to the bank.

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The forthcoming Encyclopedia is intended by J. K. Rowling to be the authoritative directory of all creatures, persons,  places, and things that make up the Harry Potter universe. Rowling has been working on it on and off for years, and every so often a snippet of activity sends the crowd into a mad frenzy over its supposed “impending” release. As long ago as April 2008, Rowling stated that she had begun work on the project in earnest. In September 2009 we were treated to a comment from fellow novelist Ian Rankin that Rowling “had been making family trees of all her characters,” only to learn from her publisher the following week that “the encyclopedia simply remains something Ms. Rowling would like to complete sometime in the future.”

In recent interviews, Rowling has unequivocally stated that she still intends to write the encyclopedia, but has been vague when pressed for details on the timing of its release. Rowling euphemistically refers to the Encyclopedia as “The Scottish Book,” an oblique reference to Macbeth, which as every theater-goer knows is only to be called “The Scottish Play” — and nothing else — unless the speaker wishes to invoke the curse of Macbeth. Among the many tragedies attributed to the curse, in 1672 the actor playing Macbeth substituted a real dagger for the blunted stage one and killed Duncan in full view of the audience. During a performance in New York in 1849, a riot broke out in which 31 people were trampled to death. In 1937, during Laurence Olivier’s first portrayal of Macbeth, his sword shattered and flew into the audience, striking a patron who immediately suffered a heart attack.

Given the superstitious tendencies of a writer whose chief villain is known only as He-Who-Must-Not-Be-Named, Rowling’s enigmatic reference is perhaps unsurprising, but no public hue and cry has been heard in connection with Harry Potter that can even remotely compare to Macbeth’s ill-fated fortunes. Perhaps Rowling fears that the breadth of detail envisioned by the Encyclopedia — which is rumored to include such diverse subjects as directions for splitting one’s soul into a Horcrux, how Lord Voldemort obtained a new body, and the backstory to Florean Fortescue’s murder — will give rise to a curse of its own.

Of course, while all of this is superficially interesting if you are a Harry Potter fan, from an intellectual property standpoint it would be decidedly ho-hum but for the fact that Rowling filed suit against a fan-created online encyclopedia called the Harry Potter Lexicon.  Originally the brain-child of librarian Steve Vander Ark, the Lexicon – as one would expect from something called a lexicon — lists characters, places, creatures, spells, potions and magical devices, as well as analyzing magical theory and other details of the series. Famed for publishing one of the first timelines of events occurring in the Harry Potter universe, the Lexicon has been used as a reference source by Rowling herself, who admits that:

This is such a great site that I have been known to sneak into an internet café while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing).

Notwithstanding her purported admiration for it, when RDR Books proposed to publish a print version the Lexicon, Rowling filed a copyright infringement lawsuit in New York District Court seeking to enjoin its publication.  Although the court recognized that authors do not have the right to stop the publication of reference guides and companion books about literary works, it nonetheless found that Vander Ark had exceeded the ambiguous boundary of “fair use” and ruled against the Lexicon and its valiant cohort of defenders. The upshot of the legal battle was that a less-than-comprehensive (and therefore less-than-exciting) version of the Lexicon was vetted and permitted to be published under the disingenuous title The Lexicon: An Unauthorized Guide to Harry Potter Fiction.

Personally, I prefer the aptly-named Complete Idiot’s Guide to The World of Harry Potter, which suffers only from the fact that it attempts to be a scholarly work rather than the tongue in cheek farce that I would like to read and hope to find in an alternate universe. Perhaps if Ashton Kutcher ever gets around to making a sequel to The Butterly Effect, I’ll be able to find the version I’m really interested in.

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