Dead Wrong on Copyright

by Christopher Harbin

Tony Woodlief of the Wall Street Journal recently penned an opinion piece rife with terrible analogies and poor logic on the subject of copyright incentives.  One passage in particular really irks me.

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.

The first flaw Woodlief makes is that he frames copyright as a merely a  measure to ensure an artist gets paid fair compensation for her work.  On one level, I suppose that is somewhat correct, if not rather narrow.  But copyright is properly viewed as not compensation for their fruit of an author’s labor, but rather providing an incentive for the author to create the work in the first place.  The distinction here is narrow but important.  In the second paradigm, copyright protection beyond what it takes to create the work is overbroad. In the first paradigm, the fair value of the work may not be the same as what it takes to incent that same author to create the work.  In Woodlief’s frame, the default copyright protection for a work protects all uses that bring financial gain to the author.  That’s bad news for fair use.

This point leads me to Woodlief’s implicit assumption that there are only two interested entities in copyright, the copyright holder and the purchaser of works when in fact there are four (or arguably more) discrete entities that are benefited or burdened by copyright.  First, there is the creator of the work, who is often not the copyright holder — the second interested party.   Third, is the purchaser of a copy of the work protected by copyright. Fourth is the public whom benefits from the remainder not protected by copyright.

I also hate the chef / restaurant analogy.  A better analogy is that you made Penne Vodka at your house and Professor Paula Franzese’s father sued you for it.  [This is an inside joke for those having the smoldering divisive Paula Frenzese as their BAR/BRI property lecturer.  She claims her father invented Penne Vodka. I’m skeptical.]  Recipes aren’t protected by copyright.  Nothing stops another from publishing the ingredients to Planet Hollywood’s Cap’n Crunch Chicken or the House of Blues’s Bread Pudding. Another restaurant can make the exact same dish and copyright has nothing to say about it.  Woodlief’s analogy preys on his readers’ moral qualms about dining and dashing to make his case for copyright.  A little unfair if you ask me.

My last beef from Woodlief is the total absence of a discussion about fair use.  When deciding to include some quotations from others in a book he was writing, Woodlief felt that copyright owners were unreasonable in giving him permission to use pieces of their works:

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.

One line from one song that doesn’t hurt the market of Joe Henry’s song is fair use, bud.  You don’t need to seek permission because you own it already. Joe Henry doesn’t get to control every use of his work, only unfair ones.  And I don’t think the absence a fair use discussion is an innocent omission.  The guy is a writer who gets paid when people reproduce his work.   Things that make you go “Hmmmmm.”

This piece signals to me that for-profit authors and copyright holders believe that copyright is a topic between them and Congress.  The public and “casual” authors — those that create for reasons other than pay — should be left out of the discussion.  Yet another reason why meaningful copyright reform will never happen until the public holds their representatives accountable for their record on copyright issues.  If we don’t let our leaders know that we expect a place at the table, we’re not going to be invited to the discussion.