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.

Posted by Felix at 2:50 EST

Comments

What about David Bowie

Posted by: David Weman at 15:31 EST, December 06, 2005

I thought someone might mention Bowie. There's an enormous difference between selling a copyright and securitizing an income stream -- it's the difference between raising equity and raising debt. Both should be an option. In the case of copyright, a debt issue like Bowie's does not allow the new owner to do anything innovative with it, while an outright sale of the rights would.

Posted by: Felix at 15:35 EST, December 06, 2005

What about music? The Beatles catalog, Jackson and the infamous deployment of 'Revolution No. 9' which, to some, could be seen as innovative on the part of W+K, since it one might additionally argue it led to the use of Janis Joplin in a Mercedes commercial with nary a hint of irony. I really doubt that selling copyright would lead to artistic innovation, since much of that occurs with a degree of borrowing or appropriation already. Getting the peanut butter of commerce into the chocolate of artistic endeavor will lead to new forms that pander to the more base of the two poles.

Posted by: 99 at 1:11 EST, December 07, 2005

I didn't say that selling copyright would lead to artistic innovation -- but it certainly wouldn't hinder artistic innovation. And insofar as a vaguely liquid market in copyrights existed, it might raise the amount of money that publishers are willing to give to artists.

Posted by: Felix at 1:53 EST, December 07, 2005

I doubt John Fogerty would find the market for music "vaguely liquid". And I don't think moral copyright has even existed in any meaningful way. Access to distribution has pretty effectively commodified creative work, and proving collusion or anti-trust is difficult. The last nail in the coffin is successful artists very rarely intervene or attempt to force change when they finally have enough market force to supercede the restrictions of distribution cabals.

Posted by: 99 at 9:00 EST, December 07, 2005

You had dinner with Oliver Sacks?!

Posted by: Rhian at 16:30 EST, December 07, 2005

Yeah. Cool.

Posted by: Felix at 11:32 EST, December 08, 2005