“What would the world be without America? It would be a dull and dinky planet indeed.”
– Elizabeth Wurtzel –
In honor of the 225th Anniversary of the first copyright act of the United States (May 31, 1790), I’d like to recommend a little book that neatly offers both a primer and a rationale for intellectual property in the United States. Creatocracy: How the Constitution Invented Hollywood, by author and attorney Elizabeth Wurtzel is an unabashed, patriotic affirmation of the Progress Clause, reminding us that its inclusion in our Constitution can be explained by the same reason we have the United States at all: because it seemed like a good idea at the time.
“There’s no particular reason that the Constitution, which otherwise contains few frills, should bother to make mention of something as luxurious to a nascent nation as intellectual property,” writes Wurtzel. “And yet, there it is. As such it made America. Because of intellectual property, we live in a democracy of ideas and not a plutocracy of provenance.”
In just about ten thousand or so words, Wurzel flaunts American exceptionalism in both creative and practical inventions with the kind of energy in her writing that Kerouac gave to his love of jazz. She gets in your face and tells you unequivocally that America is the coolest country in the world and that it has the almost incidental establishment of intellectual property law to thank for that coolness. She reminds us that implicit in the Progress Clause is the same contagious, unwarranted optimism that created America in the first place. Drawing upon the fact that the nation itself is an improbable, even preposterous, invention, she cites the historical irony that no revolution of such magnitude had ever been fought, let alone won, by a people who had it so good. So, of course that same restlessness would eventually land men on the moon (and bring a car!), invent Rock-n-Roll and the Internet, build the largest military force in the world, and make a motion picture that cost a gazillion dollars just to produce a mediocre melodrama tacked onto an epic recreation of the epic sinking of the Titanic.
In fact, Wurtzel’s example of extolling the scope and audacity of James Cameron’s blockbuster is a pretty good metaphor for why I choose to defend copyright. Sure, I criticized that film for all the subtle moments of pathos the script forgoes in favor of dime-novel sentimentality. And I have certainly never been a teenage girl who would return to the theater a dozen times to watch Leo sink into the Atlantic. But I agree with Wurtzel that we have reason to celebrate the gall that made that over-hyped, over-budgeted movie because it could have been a disaster, but it worked. And for better or worse, that has been the American story over and over again.
Likewise, it really is kinda cool that the Framers almost haphazardly established the basis for intellectual property while cobbling together a new nation populated by semi-literate and generally unwashed farmers. “… it was a supreme leap of of faith to believe that there would ever be culture in this country …,” writes Wurtzel. And although it is necessary and relevant that we critique law as we might critique Titanic, when that criticism lapses into futile cynicism, we do often forget to have fun. Wurtzel’s enthusiastic little book reminds me that every time I hear or read some high-level, academic, legal theory banging on about natural laws and government-granted monopolies and maximalism and so on, I often want to say, “Dude, whatever. It worked. We totally got Elvis and Ray Charles and Star Wars and the Corvette and, yes, even Google. So, quit being a stick in the mud, and go fix something that isn’t working!”
I often worry that the America envisioned by some of the more extreme intellectual property rights reformers would look more like China, which we might describe as the Elvis impersonator version of a culturally diverse society. Whether it’s software or handbags or CDs, there’s something fundamentally depressing about a nation filled with so many knockoffs, lacking a system for creating a more diverse bounty of their own cultural works and inventions or even a system for acquiring our works in fair trade. It’s what a market looks like where there are limited moral boundaries like intellectual property or human rights that are tethered to the foundations of free enterprise. In Creatocracy, Wurtzel celebrates the fact that copyrights and patents make commerce out of intellectual and creative endeavor because commerce is the ultimate democracy. Yeah, money makes people do bad things sometimes (or more often just lame things), but that’s exactly why our system based on IP is brilliant — because it does the best job of removing both government and aristocracy from the creative process and gives the power to the people. “Here the idea was everyone would buy a ticket or purchase a copy, and voila — fun! Everyone pays a little and gets back a lot. Culture is as democratic as government. When it comes to taste, the people rule,” she writes.
But I have seen folks suggest on this blog and elsewhere that perhaps patronage or publicly-funded works would be preferable to the intellectual property system we’ve had so far. This view is not only cynical (and really boring), it’s contradictory. These folks argue that, on the grounds that copyrights are “government-granted monopolies that keep creative works from the people” (which makes no sense on the face of it), they would sooner see a system in which only large corporations, wealthy individuals, or members of Congress sponsor creative taste and/or R&D in this country. How is that in any way an antidote to the consolidation culture these same critics (and I for that matter) view as socially regressive? These same people have yet to recognize that their anti-copyright, populist, free-for-all has so far made creative works more corporatized and driven popular creators toward patronage-like models to survive.
The Silicon Valley tycoons and their vast PR network love to talk about “permissionless innovation” as though intellectual property were the barrier preventing that innovation. But their blindness in this regard is why, for all their new-money insouciance, they’re really a bunch of fuddy-duddy corporate wonks. They miss the point that the individual rights granted to inventors and creators is the legal embodiment of permissionless innovation. It is constitutionally guaranteed permission to not ask permission of anyone other than an audience or a customer. It’s why the Dead Kennedy’s got away with saying “Fuck The Man.” Because The Man, no matter how rich or powerful he may be, can still only buy one ticket relative to an audience of millions of screaming, head-banging fans.
As Wurtzel points out, while American fine arts are something of a carry-over from our cousins across the pond, the breadth and depth of expressions written onto “celluloid and vinyl and acetate” are distinctly American. And despite the inexorable, so-called progress of these tactile media into drab, invisible ones and zeroes, we should not let that be the reason to starve genius or stifle the quixotic madness that may produce big, daring works just because we can. There’s plenty that American exceptionalism does not get right. We believe our own press and too often confuse our mythology with history. We can’t always tell the difference between reality and a movie, but whether we do the most audaciously noble or the most audaciously terrible thing in reality, it’s worth noting that we always relive, re-contextualize, and reexamine those truths through our movies. “Our movies are America,” writes Wurtzel. And I think she has a point.
Elizabeth Wurtzel is also the author of Prozac Nation and Bitch: In Praise of Difficult Women.