BOOK REVIEW: ‘Authors in Court: Scenes From the Theater of Copyright’

OPINION:

AUTHORS IN COURT: SCENES FROM THE THEATER OF COPYRIGHT

By Mark Rose

Harvard University Press, $29.95, 240 pages, illustrated

 

Mark Rose, research professor of English at the University of California, Santa Barbara, engagingly tells us that he is “a Shakespearean by trade, not a lawyer.” He then goes on to confess that “Nonetheless, I have some experience in legal matters, having served as an expert witness in copyright infringement cases for thirty-five years” and that he has lectured and written extensively about copyright and its history. This is apparent in his authoritative tone and obvious mastery of his subject, but it is perhaps the Shakespearean expert in him as well that made him “think of each chapter as an exploration of the drama of authorship as it has played out on the stage of the law.”

Certainly, for all the dense descriptions and close argument which are central to Mr. Rose’s enterprise here, he does manage to convey the drama inherent in each of his very different case studies. Over three centuries and on two continents, he demonstrates how particular legal actions affirmed the notion of copyright and expanded it beyond the written word into hitherto uncharted realms.

A mere three decades after the 1710 Statute of Anne enshrined the notion of copyright in English Law, Alexander Pope, the pre-eminent poet of his time, sought successfully in 1741’s “Pope v. Curll” to establish that private letters had the protection of copyright. With characteristic flair, Mr. Rose writes that in the judge’s “decision the author’s words have, in effect, flown free from the page on which they are written. Not ink and paper, but pure signs, separated from any material support, have become the protected property.” The crucial leap from copy to copyright was achieved here.

The other five legal actions all take place in this country. In “Stowe v Thomas”[1853], Harriet Beecher Stowe won for herself and her fellow authors control over translation of their work into foreign languages. In the 1880s, a then well-known but now largely forgotten celebrity photographer with the marvelous moniker of Napoleon Sarony protected his portraits of Oscar Wilde from piracy. Not only have his successors today, like Annie Leibovitz, benefited, but in so doing he enormously expanded copyright into “an expansive definition of author as the one to whom anything owes its origin, a definition that has proved significant in the subsequent extension of copyright protection to sound recordings and other kinds of productions.”

Not all the plaintiffs were successful. The author of the hit play “Abie’s Irish Rose” was unable to block a Hollywood studio from making a movie that she thought resembled her work. J.D. Salinger’s suit against his biographer Ian Hamilton hampered his task but did not prevent eventual publication of a biography, albeit a different one, despite obstacles his subject managed to place in his path. Mr. Rose provides an interesting discussion of the role sympathy with the author’s genuine concern with privacy played in the decision, comparing it to the part played by Harriet Beecher Stowe’s stature in her victory. Only in the final case Mr. Rose discusses, Rogers v. Koons [1992], a dispute between two artists about copyright infringement, does he get so bogged down in the legal complexities that the discussion is less crystalline than we have come to expect from this accomplished author.

In conclusion, Mr. Rose crisply sums up the evolution of copyright in the course of our republic’s history, putting it in the context promised at the outset of his book:

“The first U.S. copyright statute, the act of 1790, modeled on the Statute of Anne, spoke of securing rights to authors. The current statute, the copyright act of 1976, speaks of providing copyright protection for “original works of authorship.”

He goes on, quite correctly, to cite “the emergence of ’work-for-hire’ doctrine, that is the principle that, in an industrial context, copyright belongs to the employer who commissions a project rather than to the worker who executes it.” It is apparent that even though the professor is not a lawyer, he is capable of writing with the precision associated with that profession.

But he not only writes pointedly but wittily, citing the major recent copyright cases involving “protected figures such as Mickey Mouse or James Bond” to emphasize that not only “no longer is the legal author necessarily a living, breathing, mortal human being the legal author is rarely a human being. We still have writers, artists, and composers of course, but work-for-hire doctrine extends the process of abstraction and generalization that has characterized the large scale history of copyright to the point that, not infrequently, the foundational figure of the author has itself become metaphysical.”

So, having given us these very real cases by living breathing folk which did so much to affirm copyright protection for them, he shows how it has been submerged into the larger realm of intellectual property rights, a phrase which only much more recently entered common parlance. There is little doubt, though, that it is fated to grow ever wider in use and more powerful still in scope.

• Martin Rubin is a writer and critic in Pasadena, Calif.