Mark Helprin’s article in the Sunday New York Times, “If a great idea lives forever, Shouldn’t the Copyright?” makes what appears to be a very simple argument in favor of Congress’ extending copyright terms “as far as it can throw.” Helperin’s thesis is that there is very little difference between intellectual property and real property. It sounds quite reasonable but really, it’s anything but.
Helprin argues that “Freeing” a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses who will continue to profit from, for example, “The Garden Party,” while the descendants of Katherine Mansfield will not.”
I’m not sure it’s appropriate to compare a story a song or a movie to giving away the family farm, so to speak. The equivalent real property example is straight out of “Pride and Prejudice,” in which the lovely Bennett sisters lose their ancestral home to a distant cousin because women could not own property. But had Mr. Bennett also been an author or a musician, then his works could have been in wide circulation or at the very least copied and circulated among his family and friends. While the distant cousin would own the real property and the rights to Mr. Bennett’s works. The cousin alone owns the Bennett homestead and he alone can choose whom he wishes to live there, but the novels or the musical composition could become available to everyone. It’s a fundamental mistake to equate real property with intellectual property.
Consider the estate of Dorothy Parker, whose copyrights were held hostage by playwright Lillian Hellman, Parker’s literary executor. Parker willed her rights to Martin Luther King Jr. and then to the NAACP. Hellman, who could abide neither Dr. King nor the NAACP kept Parker’s works away from biographers, publishers and the general public. Why? Because she could. Eventually, Hellman had to cede her position to the NAACP but as Marion Meade wrote in an article for BookForum:
“Looking back, the insensitive disposal of her friend’s personal belongings seems callous. But, more important, her refusal to cooperate with biographers succeeded in damping—even if only temporarily—critical attention to Parker’s work…”Collectively, everybody who had a stake in protecting Parker’s reputation—an extended family of publishers, executors, relatives, and lawyers, as well as a host of devoted friends and admirers (some wondrously wealthy)—failed her. ”
Last summer, the estate of James Joyce, holder of copyright to all the late novelist’s works tried to prevent Stanford scholar Carol Loeb Shloss from publishing all of her academic research regarding Joyce’s daughter Lucinda. The estate has been administering the copyright for more than 60 years and was under the control of Joyce’s nephew. The case was eventually resolved, but the larger issue of whether the late author’s nephew ( and his children and his children’s children if Helperin could have his way) should control the copyrights forever. An slighted executor or a cranky nephew can slam the breaks on scholarship and keep the ideas of another locked up and in litigation long enough for the ideas to fade and the works to be lost.
Lawrence Lessig has started to analyze and deconstruct Helperin’s arguments here on a Wiki titled Against Perpetual Copyright.