I never understood the news reports that someone has been paid a bunch of money for the rights to his or her story. Your “story” is not something you own. It’s just something that happens.
When I published A Day in the Life of Timothy Stone, I wrote to all of these authors and publishers for permission to use all of these pieces of song lyrics and other fragments from books or movies or magazines. I wasn’t sure if I needed it, but I figured I might as well be on the safe side. Austin & Winfield had required me to do it before they would publish America and the Law, and I hadn’t had any problem. Of course, most of that was non-fiction. With Timothy Stone, pretty much everyone granted permission either gratis or for $100. But Don McLean, for some reason, would not give or sell me permission to use pieces of American Pie. I did a little research, and it looked to me like it was “fair use”, so I decided to roll the dice. I figured if he ever pressed the issue, I would say, “Fine, my losses on the book are about $200 a year, so why don’t you write me a check for twenty bucks, and we’ll call it even.”
But I started to think a lot about the “rights” to something like that.
Yeah, sure, if I copied a Don McLean album and sold it, I can understand that. But no one is buying A Day in the Life of Timothy Stone to get a few mangled pieces/parts of some of the lyrics of American Pie. Even if the book were profitable, I wouldn’t be making money off of him.
I would just be writing about life.
Life includes not only cars moving, and seasons changing, and kids playing, and conversations, but exposure to books, and music, and television, and film.
Why can’t you write about that? Just like any other event.
The filmmaker, or author, or musician, has put his or her stuff out there. He or she has presumably been paid for it.
Sure, we don’t want to let people steal things.
But no works of art are completely “original”.
People use words, and language, and phrases, and notes, and events, and facts, and ideas, that are part of the common human experience, which belongs to everyone.
Particularly in the context of non-fiction works.
I understand, of course, that there is an art to it. And there is often a lot of time and effort and even expense that goes into gathering, researching, framing, analyzing, interpreting and presenting the material in an effective way. Obviously you don’t want to let just anybody come along and profit off of someone else’s work product.
Yet how can someone “own” a fact? How can someone “own” an event? How can someone “own” a statistic?
I was watching a forum on Book TV a few weeks ago. The topic was Google’s project to scan, image, and make searchable the contents of the Harvard Library. And one of the intellectual property lawyers made the argument that intellectual property is just like any other property. Just like no one would be able to come and take your table, or your telephone, they can’t come along and take your intellectual property, and use it, without your permission.
The fallacy in that way of thinking, it seems to me, lies in the concept of singularity.
There is only one physical table. There is only one physical telephone. If someone else is using your physical property, he or she is, by necessity, depriving the owner of its use.
The use of intellectual property, by contrast, is not mutually exclusive.
The same thoughts, and ideas, and words, and sentences, and images, can be used infinitely, by an infinite number of people.
So the test has to be something else.
I, personally, would be inclined to use something like the “substantial factor” test. If the original author or owner’s property – i.e. words, thoughts, notes, phrases, images, ideas – is a substantial factor in the purchase of a “derivative” work, then the original author or other owner is probably entitled to some commission.
I’m still not sure if he or she should have the absolute right to control the use of the property – i.e. in the sense of a “veto”.
But I think he or she is entitled to be paid.
At the same time, you can’t stop evolution.
Images, stories, language, characters, music, events, ideas, must be afforded the freedom to evolve.
They say that imitation is the sincerest form of flattery.
But, in either event, the authors, celebrities, studios, and others who find themselves at the fountains and the gates of popular culture should likely spend a little less time and effort guarding the fountains and the gates, and a little more time being flattered.