Copyright and Creativity

BRIAN: This is BackStory. I’m Brian Balogh. And I’m here with Ed Ayers.

ED: Hi. And Peter Onuf’s with us.

PETER: Hey, folks. Today we’re talking about intellectual property. Patents, trademarks, and, yes, copyrights.

BRIAN: One of essential questions in the history of copyright law is what has actually counted as a copy. Obviously, something like a photocopy is, well, a copy. But what if someone takes your story and turns it into, let’s say, a musical. Or a painting.

What if somebody takes your story and simply tells it in another language?

SIVA VAIDHYANATHAN: In 1852, Harriet Beecher Stowe actually took a publisher to court because there was a German translation, an unauthorized German translation, of Uncle Tom’s Cabin that was circulating.

ED: This is Siva Vaidhyanathan. He’s a professor at the University of Virginia and author of the book Copyrights and Copywrongs.

SIVA VAIDHYANATHAN: And throughout the United States at the time, there were large pockets of German-speaking and German-reading people. And Stowe– actually Stowe’s husband because Stowe didn’t have legal standing, being a woman– Stowe’s husband sued for copyright infringement over one of these German translations.

And the court ruled that because copyright protects the specific string of text or the specific mode of expression and not the underlying idea, that the translation of Stowe’s characters and story into German didn’t count as a copy because all the translator did was take the ideas and put different letters to it.

BRIAN: All right. I admit that was confusing. What the court basically said was that Stowe’s only right was to protect her story the specific way it had been expressed. That is, using the English alphabet and grammar structure. You could tell the exact same story in German or French or Klingon, and because the letters– literally the letters on the page– were different, it was a different expression.

ED: And throughout the history of copyright, this has been the question. What counts as an original idea and what counts as an expression of that idea?

SIVA VAIDHYANATHAN: One of the most poorly understood aspects of copyright– and it’s the thing that I think I surprise students with the most when I talk about it– is that copyright does not protect ideas. Or it’s not supposed to protect ideas. It’s supposed to protect the expression of a particular idea.

So, for example, if I were to say, God said to Abraham, kill me a son. Abe said, man, you must be putting me on. God said, no. Abe said, what? God said, you can do what you want, Abe. But the next time you see me running and you better come.

What I just said right there is a string of text copyrighted by Robert Zimmerman, aka Bob Dylan. He owns it. And yet the story, the idea, is owned by all of us. Because it’s in Genesis.

So the Abraham and Isaac story is something that anybody can write a song about. That’s the idea. And the original text is, of course, in the public domain. But the specific expressions that Dylan uses he owns and will own for an incredibly long time.

Now, the idea-expression dichotomy holds up in theory. But then, when you’re suddenly talking about the theater being big business in the late 19th century, then you’re dealing with the fact that authors or songwriters are going to want to sell the rights to their work on the market for theater. So that’s about a transference from one media form to another. The creation of a derivative work.

And then think about the translation of certain things like books into plays and then plays into film. Well, that all becomes part of the story of making sure that in some ways ideas are protected. But there’s a lot of slippage between idea and expression.

ED: Siva says a lot of the slippage happened at the turn of the 20th century when ideas started, well, moving. In the early days of film, there really were no rules. Filmmakers could take the stories of famous authors– authors like Mark Twain or Charles Dickens, say– and turn them into movies, essentially without permission.

This new form of expression, the motion picture, created all sorts of problems when it came to storytelling.

SIVA VAIDHYANATHAN: There was a very big case in 1909 involving a very big novel, Ben Hur, a tale of the Christ. Which was a novel that came out in 1880. It was written by a Civil War general named Lew Wallace. Is had sold 2 million copies. It was one of the biggest sellers of late 19th century America.

And, of course, it tells a story of a Jew wrongly accused of plotting to kill the Roman governor of Judea. And ultimately he ends up converting to Christianity. And it’s a grand tale.

Now, a film company called Kalem Company, which was the biggest challenger to Edison in the early days of film, decided to put out a film version of Ben Hur with the chariot race and a bunch of– more like vignettes of the novel. And this occurred at the same time that Harper and Brothers, the publisher, had actually sold the rights for dramatic adaptation to a stage company.

BRIAN: Meaning, if you wanted to dramatize Ben Hur you needed to ask the stage company for permission. The problem was, nobody had ever said that film, this new medium, was a dramatization. To Kalem and other filmmakers, movies were different from plays. And they didn’t want to pay for the rights.

SIVA VAIDHYANATHAN: Ultimately, the courts ruled against Kalem and Company.

ED: And they did so in a way that would have thrilled Harriet Beecher Stowe. The court said that film was indeed different from theater. But that didn’t mean that filmmakers could just take whatever stories they wanted.

Instead of paying stage companies, filmmakers would now pay authors for the right to use their stories. Stowe had trouble simply stopping unauthorized translations into a new language. But now, writers could stop translations of their work into entirely new mediums.

It was one step closer to protecting ideas and not just their expressions.

BRIAN: And Siva says, actually, this works pretty well for a while. Writers are getting paid, studios are making money. But in the 1970s, that line between idea and expression, between what can and cannot be copyrighted– that line got really blurry.

Because with the advent of the television and the VCR and the cassette tape, all these different ways to consume and copy media, creators got scared.

SIVA VAIDHYANATHAN: And so what we have at that moment is the stakes are so much higher. The stakes of profitability for these industries are higher. The complexity of rights transfer is higher. And, by 1976, Congress realizes that they can’t keep adding new media forms and guessing and predicting the new media forms. And so they decide that anything fixed in a tangible medium of exchange– that’s the phrase in the law– shall be considered copyrighted instantly.

And this is a pretty significant term. Because this is why, today, copyright is the most pervasive law that regulates culture that we have in America. It may be one of the most pervasive laws we have in America. Any time that you write an email, any time that you write a poem, any time that you sing a song, any time you share a photo on Facebook, you are participating in the copyright system.

ED: It’s all protected, Siva says, in ways that Harriet Beecher Stowe could never have imagined.