The Enclosure of Ideas

Instead of restrictive copyright, let’s just make sure artists are well-compensated.

Toward the end of the 16th century, Miguel de Cervantes was struggling. His writing career, consisting of poetry, a pastoral novel, and 20 or so plays (“which, he noted, were received by the public without being booed off the stage or having the actors pelted with vegetables”) had been about as influential as a soft fart. A brief foray into business met with disaster; Cervantes had a keen eye for the hilarity of human failings, but not for numbers, and on top of that, his business lay in supplying the Spanish Armada. Once the Armada was cut to pieces in 1588 by the British navy and some nasty weather, Cervantes’ financial prospects worsened. He did manage to win a poetry competition and write a mean sonnet about a duke, but after that, he spent months in prison for “discrepancies in his accounts.” In 1604, he sold the publishing rights for a novel, of which the full title is El ingenioso hidalgo don Quixote de la Mancha. The novel—unlike literally everything else Cervantes ever tried in his life—was an instantaneous success. However, since Cervantes had sold the publishing rights, it was his publisher who collected all the cash (for the authorized editions, at least). It was also written into the contract that the publisher would gain another, rather newfangled type of possession: exclusive rights to the character Don Quixote for a period of 10 years. After that, Don Quixote would become what we’d now consider “public domain,” although this is something of an anachronism. 

The enclosure of characters and plotlines into “copyright” remains a relatively new phenomenon, one that didn’t really exist before the advent of publishing. It’s not like Sophocles and Euripides had to “get permission” from the Walt Homer Company to write Trojan war stories. And even when it came to works closer to Cervantes’ own time, authorial ownership didn’t exist as such; the scholar H. Parkman Biggs notes that popular medieval romances such as The Song of Roland and The Romance of the Rose represent “example[s] of group authorship over time” where different writers chose to add new characters, emphasize thematic elements, or edit various versions of the text into a cohesive whole. These changes to medieval romances took place across centuries, so for the most part the writers didn’t know each other, or have the chance to approve each other’s changes.

But in the case of Cervantes and his imitator—the pseudonymous Alonso Fernández de Avellaneda—Cervantes knew, and definitely did not approve.

Cervantes had been working on part II of Don Quixote for several years, but he wasn’t yet finished when Avellaneda’s Don Quixote sequel came out in 1614 (right after the 10-year ban on using the character had expired). Pouncing on another writer’s characters might have been considered somewhat rude at the time, but there was nothing actually forbidden about it. As Avellaneda wrote in his slightly defensive prologue: “I only say that nobody need be startled that this second part comes from a different author, for there is nothing new about a different person pursuing the same story.”

Cervantes, however, was not about to let a different person pursue the same story. The second half of his Don Quixote is a furious rebuttal of Avellaneda’s fanfiction. As H. Parkman Biggs notes, “Cervantes was so incensed* he wove insults to Avellaneda’s person, writing ability, and plot choice in the final pages of his version, often to the exclusion of other character or plot development.” In one scene, a character describes two devils she witnessed playing tennis with rackets made of fire and Avellaneda’s book for a ball. One of the devils says of the book, “So bad is it… that if I had set myself deliberately to make a worse, I could not have done it.” In another scene, Don Quixote runs across travelers who know him only from Avellaneda’s slanderous version of his adventures. After declaring himself the real Don Quixote and denouncing Avellaneda’s lies, one of the travelers says, “I believe it… and were it possible, an order should be issued that no one should have the presumption to deal with anything relating to Don Quixote, save his original author…” 

It’s important to note that Cervantes, having finally reached the literary heights he’d always felt he deserved, wasn’t angry over money or royalties—he was actually surviving off the goodwill of a wealthy patron at this point. The issue at stake was his pride, and another author’s temerity in writing “his” characters—and not only that, but writing them poorly. In this, as in many other matters, Cervantes was ahead of his time. 

 Today, the intellectual property (IP) rights of creators are—with certain important exceptions—undisputed. Copyright laws have varied over the centuries, and the details are very boring, but what began as authorial ownership for a few decades with the option to renew has mutated into the lifespan of the author plus 50 years. The Walt Disney corporation lobbied hard for the 1976 U.S. version of this law (it was already standard in much of Europe), and throughout the rest of the 20th and into the 21st century, Disney has continued to pressure Congress to extend copyright laws in perpetuity. This is a company that has made its money largely by copyrighting public domain fairy tales, and is currently trying to seize the rest of the world’s remaining IP with its greedy little mouse paws. 

But even smaller-scale estates maintain legal rights to IP for ridiculous lengths of time. Sherlock Holmes only became public domain in 2014, a full 84 years after Sir Arthur Conan Doyle died, and despite the preponderance of what’s called “Sherlock Holmes pastiche”—the uncountable Holmes knockoffs, borrowings, retellings, and reworkings that have appeared in popular art almost since the creation of the character. We’ve had two official Sherlock movies and two TV shows in the past decade alone, and let’s be honest: Every logical, dispassionate, socially frigid TV detective who notices details no one else would notice is an indirect descendant of Holmes. Conan Doyle’s estate used this as part of their failed attempt to maintain the copyright, as Smithsonian Magazine summarized: “The defense of the Doyle estate went something like this: sure, Arthur Conan Doyle’s stories are now at least 90 years old, but other stories about Sherlock Holmes are still under copyright, therefore Sherlock Holmes is still under copyright.” 

The curious thing about Holmes pastiche, whether licit or illicit, is that it’s had an enormous effect on our mental image of the character. As Parker Higgins and Sarah Jeong explain in their now-defunct IP newsletter 5 Useful Articles:

Sherlock Holmes—as we know him—is the construct of many authors, artists, and even film-makers. As Authors Alliance co-founder Molly Van Houweling points out, the phrase “elementary, my dear Watson,” never appears in any of Doyle’s works. And Doyle himself never described Holmes wearing his signature funny hat[;] this pop culture impression of the detective came about through a series of others’ interpretations—first, in a few original illustrations by Sidney Paget, which probably influenced the stage actor William Gilette’s depiction of Holmes, whose photo inspired American illustrator Frederic Dorr Steele to consistently draw the character in a deerstalker cap, an artistic choice that made its way into a number of cinematic versions.

Sherlock Holmes really is—and has been for a long time—a creation of the public domain, influenced by countless creators. This would undoubtedly have been fine with Conan Doyle himself; Doyle famously grew to dislike his creation, and in their newsletter, Higgins and Jeong note that Doyle once told a playwright who was working on a Holmes adaptation: “You may marry him, or murder or do what you like with him.” Miguel de Cervantes may have been more protective of his own famous character, but Don Quixote too has been reimagined and redefined numerous times. In a fitting turn of phrase, the judge who ruled against the Conan Doyle estate in the 2014 copyright appeal said the demand to retain Conan Doyle’s solo authorship over Holmes “bordered on the quixotic.”

If genuine “ownership” of a popular character is ultimately impossible in a creative or philosophical sense, it is nonetheless the legal fiction applied to fiction. A creator might “own” their characters until their death, at which point their ideas become the property of their estate. Then their lazy kids—for reasons that remain obscure and specious at best—get to inherit royalties, even though they rarely, if ever, participated in the creative process. This is increasingly the pattern with popular IP: It belongs not to individual creative people, but to estates and large corporations.

When it comes to certain forms of collectively-produced popular IP, such as superhero comics, corporate ownership already sets in while the creators are still alive. Even before Marvel and DC were gobbled up by even bigger, more rapacious corporations, their lucrative superheroes legally belonged—with some limited exceptions—to Marvel or DC as publishers, not to the people who actually created and developed the characters and storylines. Given the collaborative nature of superhero comics, in which venerable characters are constantly reworked by new creative teams, a non-individuated copyright makes a certain amount of sense. But as currently practiced, comics creators such as Marvel’s Bill Mantlo have had to rely on GoFundMe to pay their medical bills, while their characters are turned into profitable toys and billion-dollar movie franchises.

IP has become such a normalized concept that the average person probably doesn’t spend much time interrogating it. But the notion that a person—or, stranger still, an estate or a corporation—can “own” characters and stories has had a peculiar impact on the way the public interacts with narratives. The human impulse to mess around with the stories we hear—giving them different endings, transplanting them to different settings, retooling them for new media—runs pretty deep. In addition to well-documented literary borrowings by famous writers throughout history, we can look at the intricate webs of variations on popular fairy tales and folk songs as evidence of how widespread and normal a practice this narrative-sharing is. Scholarly systems like the “Aarne-Thompson-Uther” typography of tales (primarily focused on Europe and the Near East) or the huge Roud Folk Song Index have been devised to try to map the distribution of folk narratives across regions. The Scots murder ballad commonly known as “The Twa Sisters,” to take just one example, has more than 20 recorded variants in English and hundreds more in other European languages, all with different character motives, plot twists, and resolutions. Shameless theft and scrap-heap scavengery is how storytelling works in a state of nature.

Copyright is an attempt to partition these common lands of imagination into discrete legal properties. Some particularly litigious copyright-holders have taken a crotchety get-off-my-lawn approach to enforcing their narrative ownership: The writer Anne Rice (creator of Interview with a Vampire) has famously pursued legal action against small-time fanfiction writers, while Stephen Joyce, the grandson of James Joyce, was notorious for threatening lawsuits against everyone from the singer-songwriter Kate Bush—who wanted to set a short excerpt of Ulysses to music—to ordinary citizens trying to stage public readings of his grandfather’s novels. But these lawsuits are the exceptions, not the rule, when it comes to small-time fanworks. Most literary estates or copyright-holding corporations tolerate (and in some cases even welcome) the existence of artworks that borrow from their proprietary narratives, so long as their creators disclaim ownership over copyrighted material and don’t earn any money from their work. This magnanimous indulgence, in turn, keeps so-called “fanartists” beholden to the copyright-holders. The impact of copyright hasn’t manifested as a change in the effusive proliferation of variations on popular narratives so much as a change in how the public classifies “authorized” and “unauthorized” narratives. “Authorized” narratives are produced by the copyright-holder and/or its licensees and are often religiously imagined, by fans of those narratives, as “canon.” Canon is the serious, “real” narrative, whose stakes matter. “Unauthorized” fanworks, by contrast, are inherently unserious and viewed as categorically incapable of significant artistic merit. This is fundamentally different from how narratives worked before copyright, where the only things that mattered to a reader or listener was a) which versions of a story were actually available to them, and b) which of these versions they happened to like the best.

If this new division of narratives into “authorized” and “unauthorized” is a little strange, perhaps, and out of sync with historical precedent, is it necessarily bad? Is there a justifiable rationale for treating ideas—and particularly stories—as a form of “property”? One obvious reason for doing so is to ensure that writers and other creators don’t starve to death: In our present-day capitalist utopia, if a writer’s output can be brazenly copied and profited upon by others, they won’t have any meaningful ability to make a living off their work, especially if they’re an independent creator without any kind of institutional affiliation or preexisting wealth. This explanation has some merit, although if we see copyright as a necessary evil to ensure that individual artists can sustain themselves, that doesn’t provide much justification for why copyrighted narratives and characters should be inheritable by estates and corporations after the creator’s death (or, for that matter, why a corporation should be able to hold rights over characters when the artists responsible for developing those characters are still living.) As Sean Andrews points out in Jacobin: “In reality, movie and music collections, journals of scholarly societies, trademarked properties, and patent libraries are often acquired, traded, and licensed by organizations who had no connection to the labor involved in their creation other than the ability to buy it.”

Another reason that’s often trotted out to justify this type of copyright is the idea of “quality”—that the integrity of an artistic work is protected by discouraging knockoffs, or, at any rate, making it clear to the public which is the “original” and which are mere derivatives. Cervantes would have been a fan of this! Nevertheless, this argument doesn’t really hold water. The J.J. Abrams-directed Star Wars films, for example, are deemed to be “canon” or “official” because J.J. Abrams was hired to produce them by Disney, the Star Wars copyright-holder—but they’re not much more than lazy rehashes of the original movies. As one scathing review of The Rise of Skywalker put it: “Fans of the series will groove to the old familiar beats and see the old familiar sights. For some, that will be enough—maybe even satisfying. Others may find themselves wondering exactly why they used to love this stuff so much.” Many unauthorized fanworks produced by Star Wars fans are likely better than Abrams’ films, and certainly no worse. Star Wars’ copyright-holder corporations have also licensed a number of tie-in novels, which are qualitatively indistinguishable from fanfiction, but are somehow deemed more “official” than regular fanfiction by virtue of having been blessed by the copyright-holder. In the world of “high literature,” there’s also the irritating notion that “serious” artists who borrow from works in the public domain, however lazy the end result, are being playful, experimental, and drawing on a deep well of shared culture, whereas “fanartists” who scaffold their creations onto works that are still copyrighted are mere hacks or starry-eyed weirdos. When a writer imagines a romance between two characters from popular fiction, they are doing “low art,” whereas when John Updike invents a backstory for the romance between Gertrude and Claudius in Hamlet, he is doing “high art.” It doesn’t matter whether the former work is actually more artistically interesting than the latter; certainly, no critic is going to review the fanwork, because it’s outside the scope of what is now deemed to be “real” art, and certainly could never hope to scale the heights of “high” art.

The other downside created by the designation of stories as property is that it actually prevents talented artists from making the kind of art they really want to make, and then distributing their creation freely and attempting to make a living from it. Writers who dabble in “fanworks” generally view these efforts as labors of love, as practice for (or distraction from) more “original” works they could write—unless you are savvy like E.L. James, of course, in which case you might just change the names of the principal characters in your successful softcore-porn fanfic (about Twilight) and then make extraordinary scads of money off it (the 50 Shades of Grey franchise). Let’s suppose you are a writer who is pretty serious about your vocation, but for the particular story you want to tell, you want to use the backdrop of Tolkien’s Middle-earth, with all its rich invented history and loaded underlying commentary on issues like environmentalism and racism. Tolkien himself was extremely open to the idea that people create new art about what he termed his “legendarium” after his death, famously writing in a letter to a friend that “I would draw some of the great tales in fullness, and leave many only placed in the scheme, and sketched. The cycles should be linked to a majestic whole, and yet leave scope for other minds and hands, wielding paint and music and drama.” Indeed, the entire metafictional conceit of Tolkien’s books The Hobbit and The Lord of the Rings is that they are “found” manuscripts that Tolkien himself merely “translated,” a kind of textual layering that lends itself very well to alternate interpretations. And since lots of people know the story of Lord of the Rings, the way lots of people know the Bible or Shakespeare or Jane Austen, there are certain unique narrative effects that you can accomplish by thwarting your reader’s expectations, or complicating familiar themes. Unfortunately, you can’t actually write your Middle-earth book and have it taken “seriously,” much less try to make any money off it, because—despite the fact that Tolkien has now been dead 47 years—the copyright over his stories is owned by the Tolkien Estate and something called the “Saul Zaentz Company.” (Per Wikipedia, the former is currently suing the latter for marketing Middle-earth-themed casino games, while the latter has served papers on a number of Hobbit-themed pubs in the United Kingdom.) In the past, the collective reworking and elaboration of shared stories was what gave rise to mythologies and folklores, but this formerly respectable and utterly natural way of producing fiction is now considered inherently frivolous and subject to legal action.

We might also, perhaps, think that there’s a kind of cultural sickness that comes from perceiving stories to be “owned.” People actually make themselves miserable over the idea of their favorite stories being “ruined” by a bad sequel or adaptation, which is absurd—not because being upset over narrative is per se absurd, since the emotional stakes of a good story can absolutely feel real, but because no one is obligated to accept a story they think is badly told as somehow more “real” than, say, another version of that story that they themselves could choose to imagine or write. There are constant reverberations of agony on the internet every time J.K. Rowling tries to retcon a weird new interpretation onto one of the characters she wrote, or re-reveals herself to be an anti-leftist TERF, as if J.K. Rowling has some magical power to dictate what is “real” and “unreal” in a fictional story whose every conceivable alternative permutation has probably already been worked out through millions of freely-available fanworks.

So if we don’t like copyrighted narratives, what are the alternatives? We might be tempted to simply get rid of copyright altogether, condemning it as a ludicrous attempt to impose property concepts on the human imagination—but then what about the “starving artist” problem? We can certainly look for alternative ways to fund artistic creation: One creative solution that’s been proposed by Jacobin writer Dean Baker is issuing a tax credit to those who agree to bring their works into the public domain. But here’s the problem with that idea: Imagine a scenario where a new writer creates a delightful, original fantasy world, the next Lord of the Rings or Harry Potter. They get a tax credit, their work goes into the public domain—and a large entertainment corporation produces a mega-blockbuster based on it, pocketing all the proceeds from ticket sales and consumer products. The original writer would ultimately make next to nothing off her work. Other artists could make work based on the material, but without the resources to compete with the mega-blockbuster, they would make very little profit and have difficulty drawing attention to their (possibly superior) interpretations. People sometimes have a fantasy that if Good Art exists, it will be noticed and praised, but really, even Good Art has to be marketed like anything else.

Another possibility is to keep copyright around, but make the terms much shorter—certainly no longer than the life of the original author. After the author dies, their works automatically enter the public domain, and no legal chicanery can be used to artificially extend the copyright. This still wouldn’t entirely solve the money problem outlined above, where the best-resourced company can turn a newly-available story into a sizzling spectacle and thus crowd out smaller artists who want to create alternative versions. But then, at least, we would likely be in a world of competing blockbuster adaptations, each responding, potentially, to a different perceived public impulse, which would also reinforce the public’s perception that stories are not owned. And then there would be an increased ability for small-time artists to earn something by producing robust alternatives for those dissatisfied by the blockbuster productions.

Neither of these avenues are perfect. For example, they don’t solve the issue of collective ownership of work, as in the superhero comics model, where the “creation” of a character is rarely a solo project. But it’s important to start somewhere, as we gradually move toward a more honest understanding of how the creative process really operates. There’s a wonderful scene in the movie Shakespeare In Love, in which Shakespeare—at this point in his life mostly unsuccessful, and struggling to write Romeo and Juliet—is walking through the filthy, colorful mess of late 16th century London. He seems almost unaware of the tumult around him, even as he passes by a preacher condemning the immorality of the Globe and the Rose Theater. “A plague on both their houses!” the preacher cries. 

This is what artists do, and how art really works; it’s borrowed from the living drama of the world, from overheard conversations, gossip, news, popular myths, and, of course, already existent art. Shakespeare himself famously borrowed heavily from existing sources, including Roman comedies and translations of Italian works. Romeo and Juliet (1595) itself largely derives from Arthur Brooks’ poem “The Tragicall Historye of Romeus and Juliet” (1562), which according to an article by Ryan McKittrick was “taken from a French poem by Pierre Boaistuau (1559) that was based on an Italian story by Matteo Bandello (1554), which was itself inspired by Luigi da Porto’s Giulietta e Romeo (circa 1530).”  Not everyone steals quite as effectively as Shakespeare, but everybody steals, and it’s impossible to tell where an idea begins and where it ends. Does an idea only count if it’s published and copyrighted? Should we all slap a ™ on the end of our statements or our text messages, lest a writer friend use it later on in a play? Is it ever remotely meaningful to say that someone “created” a character, an idea, a phrase, or a plot?

Ultimately, we need to ensure that artists have enough to live on, and have a fair chance to market their works against gigantic corporations (maybe by slaying those gigantic corporations, or at least dismembering them). But as it stands, copyright doesn’t guarantee a living wage for artists, and paradoxically, it can strangle creativity. A world where Shakespeare couldn’t steal from writers who stole from other writers is one in which Romeo and Juliet and most of his other plays don’t exist. And the act of having your own work “stolen” can itself be creatively fruitful; Cervantes, procrastinating on the completion of his Don Quixote sequel, seems to have needed a rival to tilt at in order to finish his work. As Biggs points out, “from a utilitarian perspective a lack of limited monopolies can actually lead to truly exceptional creative productivity.” A little angry creative rivalry, divorced from the need to make money, can go a long way. 

A UBI for artists could be the ideal solution, though the details might need some hammering out. Regardless, we need to push for a world in which the biggest obstacle to artistic production isn’t the need to make ends meet, or the jealous corporate enclosure of the intellectual commons, but simply one’s fellow obnoxious artists, whose bad iterations of “your” characters—or their own inferior originals—can only be countered by superior work. May the best version win.

* In his prologue, Avellaneda also took some shots at Cervantes’ age and his left hand, which was nonfunctional due to an injury sustained during Cervantes’ early, failed military career. Rude!

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