At ApolloCon last weekend I moderated a panel on copyright issues. We discussed the current U.S. copyright law – agreeing that it was important but that some of the recent changes have gone too far – and the problem of people who do not seem to understand that by selling copies of an artist or author’s work, they are ripping the creator off.
We also spent a little time on the Creative Commons concept, which I like but find difficult to understand (and I have a law degree), and got sidetracked into a lot of discussion on DRM blocks on downloads, CDs, and DVDs. (Note to con organizers: think about doing separate panels on copyright and DRM. There’s just too much material there for one panel and people are passionately interested in both.)
At the end of the panel, I threw out a question that I’ve been pondering for some time, using the current controversy over a new book that is apparently about Holden Caulfield sixty years later. (Holden Caulfield is the protagonist of J.D. Salinger’s Catcher in the Rye.) Do you think, I asked the panel, that when a character has become a cultural icon – as Holden Caulfield has – that other writers should be allowed to use that character as a way of commenting on the culture?
To my surprise, the rest of the panel said absolutely not. In fact, one person said that in situations like that posed by Catcher in the Rye, the author should have even more protection.
Under current copyright law, there is one exception that allows someone to use another’s copyrighted material: satire or parody. What I’m pondering is a second, very limited, category: I’d call it “use for dialogue or continued conversation.” It would be similar to satire, except that it would cover works that use a more serious approach to comment on someone else’s work.
It wouldn’t cover books that are obviously intended to ride the original’s popularity – no eighth adventure for Harry Potter. It wouldn’t cover slash or fanfic. It wouldn’t cover anything that the original author might write. It would be aimed at retellings or use of characters that were clearly intended as critique of or dialogue with the original.
A few years ago, there was a big to-do over a book called The Wind Done Gone, which was a retelling of Gone With the Wind from the slaves’ point of view. In the end, it squeaked past copyright protection as satire.
But what if it hadn’t been considered satire? I think it would still have been a worthwhile book, one that should have been published. Gone With the Wind is part of our popular mythology about the Civil War and the antebellum South. Using the tropes of that book to discuss slavery and racism makes a more powerful statement.
Of course, anyone can do this with books that are out of copyright. I’m sitting here thinking that if no one has re-written Huckleberry Finn from Jim’s point of view, someone ought to. People steal from Shakespeare all the time; Akira Kurosawa made great movies out of Macbeth and King Lear, changing both of them to reflect Japanese culture.
And there are ways of commenting that clearly do not violate copyright: Michael Cunningham’s The Hours is certainly intended in part as commentary on Virginia Woolf’s Mrs. Dalloway, but he uses Woolf herself as a character, not Clarissa Dalloway. Real life public figures are fair game, even if their characters are protected by copyright.
So maybe we don’t need a copyright exception; maybe we just need more talented writers commenting on the work of others without stepping on their rights. Still, it’s a question worth pondering.
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