Authorship and ownership

The ongoing debate over Google Print Google

Book Search is yet another manifestation of a more fundamental debate over

intellectual property rights. But one thing has been nagging at me for a while,

and it’s based on the whole idea of an author owning a work of IP, which ownership

can be transferred to a publishing company. This ownership – known as

copyright – is an interesting thing. For one thing, although it is transferrable,

there doesn’t seem to be any market in it. One would imagine that JK Rowling,

say, or her publishers, might be interested in selling the copyright to her

books – I’m sure there are a few hedge funds out there who would pay a

lot of money for such an asset. But to my knowledge, the only way to buy copyrights

is to buy an entire publishing company.

(Why might a publishing company be interested in selling an author’s copyright?

Because publishing companies are often strapped for cash. Because they might

be better at finding new talent than at monetizing existing talent. Because

it would help consolidate all that author’s copyrights in one place. Because

they’re planning on stopping printing that author’s books. There’s all manner

of possible reasons.)

More interestingly, the publishers, who have the copyright in the work, are

hiding behind an organisation called the Authors Guild in their fight with Google.

It’s a question of spin: the chattering classes will support struggling writers

over Google any day, but a fight between Google and HarperCollins (prop: R.

Murdoch) would probably go the other way in terms of public opinion.

It seems to me that the law is based on what you might call the auteur theory

of creation: a work of IP has an author, and it’s up to the author what to do

with the copyright. Publishers might have legal right to their copyrights, but

the moral right still resides with the original author. Take a couple of examples

from a recent article by Lawrence Weschler in Harper’s, on the subject of war

movies. Apparently, when Francis Ford Coppola and his editing team were putting

together Apocalypse Now, they cut the most famous scene in the film to a particular

Solti/Vienna Philharmonic recording

of the Ride of the Valkyries. Then, when they realised they hadn’t

secured the rights, Decca balked at the purpose for which the music was intended,

and denied the filmmakers’ request. It was only after Coppola personally asked

Solti for permission that the rights were acquired.

Weschler also talks about a similar situation 26 years later, when Sam Mendes

and Walter Murch were editing the new film Jarhead. Murch was part

of the team which edited Apocalypse Now, and Jarhead includes

a scene where Apocalypse is screened in front of a room of fresh marines.

Once again, the studio was not keen on granting the new film rights to the old

film, and once again it took a personal intervention – this time from

Coppola – to secure it.

These examples clearly show the distinction between legal and moral copyright

– or, to put it another way, between ownership and authorship. Although

the record label or the film studio was the entity which owned the rights, it

was ultimately the author of the work who made the decision as to whether or

not it could be used.

What I’m unclear about is the degree to which the ability to make those decisions

is a function of the success of the author. If Solti and Coppola hadn’t both

been giants in their field, would their publishers have cared so much about

their will? If it came down to a situation where the CEO of the publishing company

wanted to say no and the author wanted to say yes, who would win? As a journalist,

I often sign contracts signing away any and all rights to my own work –

I can’t even put it up on my own website without permission. So I’m not sure

that moral copyright is particularly strong or useful these days, even though

it certainly does exist.

The thing which fascinates me even more is the lack of any ambiguity, in the

vast majority of cases, as to where the authorship lies. Walter Murch, who edited

Apocalypse Now, was in no position to provide rights to it; that privilege

belonged not to the editor but to the director. The Vienna Philharmonic, which

played the Ride of the Valkyries, was not consulted on whether or not its music

could be used in Apocalypse Now; that decision was made by the conductor,

Georg Solti. And I’m sure that if I wanted to reprint Weschler’s essay in an

anthology of film-themed literature, it would ultimately be Weschler himself,

and not the publishers of Harper’s, who would make that decision.

As we all know, moving pictures and orchestral recordings are highly collaborative

affairs. Both involve hundreds of creative individuals working very hard to

make something that no one individual could ever come up with alone. It’s hard

to see what gives the director of the film, or the conductor of the orchestra,

the moral right to make decisions about the use of the work of art which he

created in conjunction with so many others. Writers have long sought authorship

of films, and the orchestral example is even more fraught: it would seem that

the conductor is the author if the composer is dead, but the composer is the

author otherwise.

But even magazine articles are much more collaborative than they might seem.

I’m sure that many of us have had the experience of reading a book which has

previously been excerpted in the New Yorker – Kitchen

Confidential, say, by Anthony Bourdain, or Everything

Is Illuminated, by Jonathan Safran Foer, or Uncle

Tungsten, by Oliver Sacks. In each case, I think it’s pretty obvious to

anybody who’s read them both that no matter how good the book is, the magazine

excerpt was better. The New Yorker takes its editing process seriously, and

the output is of a much higher quality as a result. Even relatively mediocre

prose stylists like Simon Schama are a joy to read in the New Yorker.

More to the point, the New Yorker’s editing process ensures that good writers

never have an off day. I think that Weschler is one of the great non-fiction

writers alive, and will read pretty much anything he writes; his books, just

like his New Yorker pieces, are wonderful. But that article in Harper’s was,

well, not up to his usual standards. It was sloppy, not very easy to read, overfull

of verbatim impenetrable theory from the likes of Adorno. I’m sure it would

never have got past the New Yorker’s editors in such a state.

So does even a solitary author like Weschler deserve all the credit for his

works? I think not. A great magazine article is, I’m convinced, a genuinely

collaborative effort – which is why you’ll almost never find a great magazine

article in an otherwise mediocre magazine. (I think this also might explain

why many small literary magazines often feel a bit underpowered: they kowtow

to their writers, and don’t edit nearly enough.)

I had dinner with Oliver Sacks on Sunday night (um, excuse me, I think I might

have dropped something around here?) and took the opportunity to ask him this

very question. He said he’s working on a book about music at the moment, and

that he’s probably not going to submit any of it to the New Yorker. A book is

looser than a magazine article, he pointed out, and he seemed worried that if

he got caught up in the New Yorker’s long and laborious editing process, he

could lose momentum on the book. In fact, he seemed if anything a little annoyed

about that process, and I learned that when the Uncle Tungsten excerpt was being

edited, there was a lot of tension between the New Yorker, on the one hand,

which wanted something closer to pure memoir, and Sacks, on the other hand,

who wanted to keep as much chemistry in there as possible.

If there was tension, however, I think it was highly productive tension, since

the final product was great. And so I think that authors should be more willing

to give real credit – not just a bit of lip-service in an acknowledgements

section at the front of the book – to their editors. Credit in the form

of some kind of joint ownership of moral copyright. Now there’s a challenge

for creative commons.