Considering Jessica Litman’s Call to Rethink Copyright Doctrine

One of the more popular talking points among copyright critics is that copyright only works for corporations but not for individuals. Thus, debate about copyright’s purpose and legal contours is often an extension of the broader condemnation of corporate power in our democracy, or even capitalism itself. For this reason, when activist groups like EFF or Public Knowledge declare that “only corporations benefit from copyrights,” it’s a dog whistle that triggers a generalized, sympathetic response but which offers little serious thought about the premise itself.

In fact, the policies advocated by these organizations are so consistently and so broadly anti-copyright that they could never honestly claim to care how much or how little copyright does serve individual authors. For instance, recent assertions that the proposed CLASSICS Act is a “handout to labels” may be an easy pitch to sell in this climate, but it isn’t remotely true based on any sensible understanding of what the bill actually does.

Setting a New Tone?

A recent paper by law professor Jessica Litman, at the University of Michigan, recommends that copyright scholars take what she considers a fresh approach to understanding copyright’s benefit to individual authors by first extricating themselves—both personally and professionally—from the macro-debate being waged by very large corporations. She suggests that she and her fellow scholars are too caught up in the business fight between legacy intermediaries (publishers, labels, studios) and new intermediaries (online platforms). “Copyright scholars can safely leave them to work it out without our help,” she writes. “If the core question in that dispute is whether the law ought to favor publishers over platforms or vice versa, the answer is unlikely to significantly change the copyright ecosystem. Neither side has much of a claim to the moral high ground.”

Although this is her preface and not her thesis, it is necessary to interject that while I think the spirit of what she proposes has merit—that academics might look through the fog of big companies battling over turf—that she errs in a very significant way when she portrays traditional publishers and digital platforms as equals from the perspective of authors and their copyrights.

From the authors’ point of view, even the most predatory practices of legacy intermediaries still cannot compare to the outright theft of their rights—to say nothing of evangelizing that theft—by the internet platforms. This is why so many professional creators have offered variations on the theme that it’s their choice to negotiate licensing terms with traditional intermediaries, while the kind of piracy that enriches online platforms gives them no choice whatsoever. I’ll return to that topic, but Litman’s thesis is summed up thus:

“If a legal regime purportedly designed for the benefit of authors systematically short-changes them, why does that happen, and what options might we have to respond? The answer, I’ll suggest, lies in the ways that we, as lawyers, think about property rights.”

At the risk of being kicked out of the pro-copyright club, I think any scholarship that proposes to consider how copyright might better serve individual authors is worth analyzing at face value. Litman’s point deserves consideration inasmuch as she has not produced yet another paper, replete with overtones of collectivist whimsy, about the evils of copyright and the greed of artists. And to me, her paper does not read like thinly-veiled policy proposals designed to benefit Silicon Valley. Instead, she at least appears to ask a perfectly valid question as to why more authors don’t reap more benefit from the system.

The History of a Con Game?

The fulcrum of Litman’s thesis is that the first law to vest copyright in the author, the Statute of Anne ratified by England’s Parliament in 1710, was a maneuver by the publishers of the time to retain a monopoly they were about to lose. By royal charter between 1557 and 1709, the guild known as the Stationers Company, which comprised the trades necessary to book printing, had the exclusive right to publish all books throughout England and her domains. But, faced with the prospect that the charter would not be renewed, the Stationers were at least partly responsible for advocating the Statute of Anne, which, for the first time, vested copyright in authors.

Litman subscribes to the narrative that this was a tactic employed by the Stationers designed to temporarily grant a property-like right to authors, which could then be easily and cheaply acquired by publishers, thus restoring their effective monopoly. To emphasize her point, she compares the Statute of Anne to the U.S. Dawes Act of 1891, which granted tracts of land to native tribes so that they could be easily bought by speculators in transactions that look fair and legal but were really just a mass swindle. “If you are looking to get your hands on some arable land or to regain control of the printing texts, creating new property rights turns out to be an excellent strategy. Sometimes the original recipient of the property benefits, but not always,” Litman writes.

Thus, Litman asserts that the doctrinal practice of treating copyrights as property may be a root cause of the law’s failure to benefit authors relative to the way in which it benefits intermediaries. She writes, “The rest of the world followed that model. In almost every country, authors receive copyright protection as an initial matter, but those copyrights are transferred to and then owned and controlled by publishers and other intermediaries.”

Without writing a five-thousand-word post, it’s worth keeping in mind that the story of the Stationers Company is more complicated than Litman states; that copyrights are not exclusively transferred to intermediaries in ways that are disadvantageous to authors; and that American copyright practice, especially after 1909, diverges substantially from England in 1710.  So, while Litman presents an interesting historic parallel, I would caution against giving it too much weight if her purpose is indeed to examine 20th and 21st century copyright doctrine to the benefit of individual authors.

If Not Property What Then?

With that in mind, my first response to Litman’s proposal that copyright’s weakness lies in the legal doctrine binding copyright to property law, is that perhaps copyright shares more natural rights qualities than many of her colleagues may be willing to admit. If the problem, as she states, begins with the fact that property is alienable and, therefore, designed to be sold, then does this mean scholars are willing to entertain the possibility that copyright is also inalienable? That it functions like a labor right as well as a property right?

Property is alienable, can be sold, transferred, bequeathed, etc. But a labor right is inalienable and does not last beyond the life and physical being of the individual. When an author agrees to a licensing contract with an intermediary, she shares a kinship with any other worker signing a labor contract, but for the fact that the author has sometimes already performed the labor while other workers agree to terms for labor yet to be done. Or, conversely, a musician who signs a multi-album contract is negotiating both property and labor at the same time, and his bargaining position is founded on the copyrights in the creative works yet to be produced.

Individuals are vested with the natural right to negotiate terms for their labor throughout their lifetimes, and this right is never diminished, no matter how many works an author creates or how many jobs another kind of worker holds. Of course, possession of this right does not guarantee that the market will be fair or that intermediaries or employers will not be predatory. But this is comparable to the fact that non-discrimination laws do not eradicate discriminatory feelings or behaviors. In other words, human flaws like bigotry or greed do not mean the rights codified into law are doctrinally flawed, and I am concerned Litman may be straying into this logical fallacy.

At a very basic level, negotiating a licensing contract is not that different from any other contract for the exchange of labor. The more perceived value the laborer or rightholder possess, the better her bargaining position (e.g. an author with a money-making track record is like a job applicant with a great resume). To the extent that an author needs an intermediary—and Litman states that this is necessary—I don’t see how this fundamental rule of investment (i.e. that more perceived value equals greater negotiating power) is going to be altered whether attorneys are trained to think of copyright as property or not.

Economic Forces Are Independent of Copyright

As alluded to above, legacy intermediaries are just one sector within a worldwide consolidation of corporate power in liberal democracies. The forces that continue to fuel this trend—and presumably any potential remedies to these forces—are almost certainly independent from copyright doctrine. So, if a copyright scholar were to examine negotiations among authors and intermediaries across various decades, I would hypothesize that copyright is a universal constant relative to other factors that lead to either more predatory or more symbiotic contractual arrangements.

As a simple example, Hollywood in the late 1980s was marked by a climate of spec-script mania. Writers benefited from a commodities-exchange-like feeding frenzy, with studios paying huge prices for specs. It wasn’t necessarily rational, but this screenplay bazaar had little to do with copyright doctrine and everything to do with various market forces driving studios to behave in this manner. Today, a spec writer is in a much weaker bargaining position than that period, but is simultaneously bolstered by the fact that entities like Netflix are currently spending huge volumes of capital in order to bulk up their programming as quickly as possible. This trend will shift at some point, and, again, will have little to do with copyright doctrine.

Putting Their Own Theories to the Test

In the same way that academics should be mindful of non-copyright-related forces in this context, I think they should also consider some of the non-measurable benefits that authors—correctly or not—perceive when they enter into deals with intermediaries. I am currently writing a non-fiction book and have signed a publishing contract with a university press. As Litman and her colleagues know very well, such an arrangement is basically writing on spec under contract for nothing that anyone would consider real money.

Most academics who publish books do not make much money from the books themselves, yet I suspect the reasons they sign deals with publishers like university presses is that, like me, they recognize various benefits that transcend money. Among these benefits is that writing a book is hard enough without being entirely alone in the editing, production, and marketing of the book; and the imprimatur of a known press is not without value.

So, because many copyright scholars have full-time jobs with tenure, benefits, and PhD after their names (i.e. financial security most authors do not have), I would suggest that any academics who might heed Litman’s call and eventually propose alternative models to distribution should be among the first to test their theories with their own works. (Kinda like the mad scientist with the new drug who injects himself first to see if he’ll turn into Mr. Hyde.)

Many of these scholars can look to their own careers as authors and ask themselves why they enter into contracts with publishers when these deals are not expected to yield a substantial portion of their incomes. The answers to those questions may provide an opportunity to step out of the ivory towers and into the authors’ shoes; and if Litman and colleagues truly want to understand how copyright can better serve individual creators, thinking like creators might be a good place to start.

© 2018, David Newhoff. All rights reserved.

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2 comments

  • After reading this piece, I also read Jessica Litman’s paper. I have a somewhat differing view that agrees and disagrees with parts of both articles.

    Litman makes the mistake of considering pretty much all creative work “work for hire.” Certainly, when a movie studio hires a writer to do a script revision, that is “work for hire” and the studio owns the copyright. But if that same writer writes a spec script, it is not a “work for hire;” the writer owns and controls the copyright until and unless the writer decides to sell it or grant it away.

    It’s also not universally true, as Litman posits, that corporations get rich while artists stay poor. The fact that there are rich artists at all – some are very rich – is because large corporations have distributed their work and made them a lot of money.

    Still, it is correct that corporate distributors give artists contracts that are heavily weighted to keep as much money as possible in corporate pockets. A few artists get rich while most don’t. People in the film world, for example, know to read carefully contractual definitions of “profit” and “revenue,” and we often have do an audit to make sure studio accounting is fair.

    But. BUT. The contracts traditional distributors give to artists look like the Garden of Eden when compared to the contracts offered by new, digital platforms. Digital platform contracts typically pay less money, have no union protection, don’t give the artist transparency on revenue, and keep the artist from having separated rights, rights to be involved in remakes, sequels, or derivative productions.

    David, you take issue with Litman saying that copyright is a property right (and her subsequent analogy that property rights, when granted are used to take the right away); you say copyright is more like a natural right. In the USA, which has the strongest and best copyright law in the world, copyright may feel like a natural right: when you make something in a fixed form, presto!, you own the copyright. However, what you have made really is property, isn’t it? It’s tangible. We call it intellectual property. It can be bought and sold. In other words, it can be commodified, and that’s exactly what consumers do, when they say, “I own that book, I own that painting, I own that movie, I own that song.”

    It doesn’t always feel good for artists to step out of their protected, creative space into the wide world of the marketplace, where their work will be treated as a commodity. Still, that is the course of events.

    I, for one, feel good when someone says, “I own your movie,” because that means they saw it, they valued it, and the team that made it may get some additional income.

    • David Newhoff

      Adam, thanks for reading and for taking time to comment. I think we’re on the same page regarding Litman’s oversimplifying the corporate/author relationship; and if anybody were to take up her call in academia, they’d have to gather real data to get a picture of how authors have fared across various media at various times. Hence, my caveats to look at multiple factors, if anyone is inclined to do this.

      As for her main thesis and my rebuttal, I don’t take issue with her calling copyright a form of property because it is a form of property. I question her theory that authors may be under-served by copyright BECAUSE copyright practice is bound to the legal principles of property. It’s important to keep in mind that we’re talking about the rights and not the works themselves—or copies of those works. I agree with you that authors are proud and rewarded when consumers own copies of their films, books, etc. But Litman is talking about the transferability of copyrights as a form of property that can be sold, bequeathed, donated, etc., and she wonders whether treating copyrights as property is doing disservice to authors.

      Not only am I skeptical of her thesis, but I firmly believe that while copyright is functionally a form of property, its existence is grounded in the natural rights principle that the fruits of one’s labor belong to the individual who may negotiate terms for exploitation of said fruits. It is often in these negotiations where authors “lose” to corporate buyers of copyrights; but as you and I both know, that narrative implies myriad conditions that have nothing to do with the underlying right vested in the author—including market forces that might make a particular work more or less valuable at any given moment.

      Litman’s paper is a tangential proposal within a longstanding debate among legal scholars as to whether copyright is grounded in natural rights or is purely a utilitarian statutory law. (see post here) At the more cynical end of the utilitarian view, copyright is a devil’s bargain society tolerates in order to incentivize authors to make and distribute their works. But even some copyright advocates are not entirely comfortable with a natural rights perspective because natural rights are not term-limited like copyrights. I disagree with this view because none of our natural rights extends beyond our lifetimes, and this actually includes copyright because what extends beyond the life of the author is not the natural right but the property. Aren’t you glad you asked?

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