Till Death Do Us Part – And Then Some

Mark Helprin has a truly odd commentary in the Times today – complaining that his copyrights will be stripped from his heirs seventy years after he trips the light fantastic. Other property can’t be stolen like this. He faults the framers for mistakenly believing ideas will be served if rights are held for a limited time (though he gives them credit for allowing Congress to extend them indefinitely). He likens the public domain to “nationalization” and unfair seizure of property.Shouldn’t his right to own his words persist lo unto to ages?

Just be sure to leave a forwarding address, Mark. Otherwise it’s gonna be hard to keep your deathless prose available to readers.

For contrast, see Jonathan Lethem’s approach, previously discussed here.

Or just for kicks, check out this pastiche on copyright that uses clips from a company that has exploited our shared cultural heritage, then slapped our hands for wanting it back.

Author: Barbara Fister

I'm an academic librarian at Gustavus Adolphus College in St. Peter, Minnesota. Like all librarians at our small, liberal arts institution I am involved in reference, collection development, and shared management of the library. My area of specialization is instruction, with research interests also in media literacy, popular literacy, publishing, and assessment.

7 thoughts on “Till Death Do Us Part – And Then Some”

  1. I think Mark Halprin should be congratulated. His ideas must be entirely his own creation, borrowing from noone else, and with no roots in what he’s read. That’s pretty unusual in this day and age. I also wonder where Halprin has found ordinary property that has no laws governing it…but never mind.

  2. Of course I’m sure Helprin’s entirely unaware that Mark Twain made exactly the same argument he did many decades ago. (I stole that from Lawrence Lessig, by the way. Sorry, Larry.) Nor has he read Milton’s Areopagitica, I’m sure. I mean, he wouldn’t want to steal the bread from Milton’s great-great-great-whatever.

  3. I really don’t get your point here. What exactly are you objecting to in Helprin’s article? A person writes a book, the book is copyrighted, publishers pay money to print the book and the author receives royalties on each copy sold. So what if it goes on past 70 years? Do you think some sort of strangulation of intellectual freedom or scholarship occurs when that happens? Do you imagine his heirs would not want to print his books?

    What if Mark Twain had been able to retain copyright to the present day? What difference would that make? Twain didn’t have that protection so his heirs don’t get royalties on his books; but, again, what difference would it make if they did?

    And FYI Lethem is talking about plagiarism and ideas in the post you refer to, not copyright.

  4. If Mark Twain retained copyright to this day, chances are we would not read as much Twain as we do. We’d have to contract with his heirs to have a copy available. Of course, Twain has been popular for years, and probably would be in print. For most work – and like it or not Helprin’s is likely to fall into this category – books that are under copyright but not in print have disappeared, unless you can find an old copy in a library. You can’t figure out who has the rights, so you can’t reprint it. Not everyone has heirs, and not all heirs keep track of their forebears’ books.

    Expression is meant to be shared. It isn’t diminished by sharing it. I can’t build my house using timbers from yours without damaging your house. But I can write a book drawing on other people’s expression and their book is just as whole.

    Shakespeare and Disney would be in deep doo doo if there were perpetual copyright. We all would be.

    Lethem is talking about how we build our literary houses by drawing on one another’s expression. That’s how it works. Perpetual copyright would make copyrighted books harder to use and any form of expression extremely difficult for fear a lawyer would come after you for violation.

    He says “In the contemporary world, though, the act of ‘copying’ is in no meaningful sense equivalent to an infringement—we make a copy every time we accept an emailed text, or send or forward one—and is impossible anymore to regulate or even describe.” No question he’s talking about copyright, there – using a plagiarism to make the point.

    What he concludes is far more generous and healthy than Helprin’s churlish property-based approach – “the truth is that with artists pulling on one side and corporations pulling on the other, the loser is the collective public imagination from which we were nourished in the first place, and whose existence as the ultimate repository of our offerings makes the work worth doing in the first place.”

  5. You say:

    I Mark Twain retained copyright to this day, chances are we would not read as much Twain as we do. We’d have to contract with his heirs to have a copy available.

    Why wouldn’t we read as much Twain as we do? And why would contracting with his heirs be such a problem for publishers?

  6. Keith, right now anyone who wants to publish Twain can, so there are cheapo editions as well as annotated scholarly editions. Anyone who wants to make a story based on Huckleberry Finn or Tom Sawyer can, without having to worry about infringement, royalties, etc. So the fact that Twain’s work is now in the public domain means it gets used more than it would if it were still under copyright, so it is more prevalent in the wider culture.

    Contracting with his heirs would be a problem if there was no clear heir; if more than one heir claimed to hold the rights; if the heir was uncooperative (cf. Stephen Joyce) etc., etc. Any use beyond the most obvious and trivially “fair” use would have to get cleared, thus fewer people would bother, and Twain’s cultural impact would likely diminish.

    And, going back to your previous comment, “Do you think some sort of strangulation of intellectual freedom or scholarship occurs when that happens? Do you imagine his heirs would not want to print his books?”

    I’d answer “certainly” and “yes, I can imagine that.”

  7. The only possible way I could support Mr. Helprin’s ideas would be with a concurrent strengthening and expanding of Fair Use. I understand the frustration with not being able to continue the Intellectual Monopoly of copyright indefinitely for one’s family and heirs, but without a strong corresponding Fair Use right for people to use parts of his work in their own, it would be deadly to scholarship and the dissemination of ideas (or at least, specific expressions of ideas, since ideas themselves cannot be copyrighted)

    What Mr. Helprin also does not realize, is just because something “falls” into the public domain does not mean he and his heirs can no longer profit from it. It just means there is now competition.

    As others have pointed out above, IP is artificial enforced scarcity and monopoly to reward creators. Though it and “real property” both have the word “property” in them, they are very different. Exactly because today’s world is one based upon the exchange of ideas and expression, I would argue for more leniency in the use of expressions and ideas, not less.

    Mr. Helprin says “Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw.” If that does happen, without a corresponding expansion of the right of Fair Use, I shutter to think about what that might mean for Higher Education, and the exchange of ideas and scholarship in general.

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