Thursday, November 22, 2007

Creativity and Profits

It's been more than two weeks since the members of the Writers Guild of America went on strike and, as far as I can see, the quality of television programming hasn't declined in the least. Then again, it hasn't gotten any better! Still, I can't help but support the writers' union in its struggle with producers and the gigantic corporations that control the American media.

Just yesterday, I happened to speak with someone who was soliciting permission to publish on the web a map and historical commentary that was created by my late brother, Eric, some 25 years ago. The organization that wishes to add this material to its website is a worthy one and the person who was inquiring on its behalf is a public-spirited individual who comes from a family which is noted for its devotion to encouraging good things in the community. But I don't own the copyright to my late brother's work, so I directed the inquirer to the current copyright holder, his rightful heir, while offering a few words of caution and advice. An interesting conversation ensued.

The inquirer said in passing that her organization was only soliciting permission to post the commentary, since the map was already in public domain. I responded that she was mistaken: both the map and commentary are proprietary materials and my late brother's heir owns the copyright to both. Eric was a professional cartographer and he had created the artwork for this particular map himself. I remember him doing so and the final product shows the painstaking detail and care that he always put into his maps, not to mention the characteristic style that would allow me to recognize one of his maps even if his name wasn't attached to it! Any similarity to earlier maps which may now be in the public domain results from the fact that the creator of each was drawing the same territory, but similarity (especially superficial similarity) is not sameness and images are protected by copyright as surely as is the written word.

After stating her mistaken belief that the map was in public domain, but before I had explained the circumstances behind its creation, this inquirer expressed her confidence that her understanding would be upheld if tested in a court of law. (While I did not interpret this unfortunate turn of phrase as either a threat or a portent, it did strike me as a poor choice of words. When one is asking for a favour, it is wise to avoid expressions, however commonplace or clever, that may be seen as litigious or even just argumentative.) Needless to say, I disagreed, which is why I took the time to explain how the map itself came to be created. Not only would the copyright be upheld by the courts but any ethical lawyer would caution anyone challenging the copyright against wasting their money by testing it!

Fortunately for my brother, he was both the creator and publisher of his own work, so there's no ambiguity about who holds the copyright. In the case of this historical map and commentary, the product was entirely his own (even though I helped him with research) and, when he died, its ownership was handed on with the rest of his assets. When it was created, though, there was no worldwide web, so that, if he had chosen to sell his work to someone else, he never could have conceived that it might be circulated elecronically. Like other creative people, such an awareness might have motivated him to either ask for a higher price or else limit the distribution rights of anyone acquiring his creation.

Most writers, though, don't publish their own work. They sell publication rights to magazines and book publishers, movie producers and broadcasters. Others write in-house for a variety of organziations in both the commercial and nonprofit sectors. Still others offer their materials to small publishers or nonprofit pulishers for next to nothing ... or even less. (My goodness, I've even encountered a church board or two that tried to claim copyright over a minister's sermons ... after the congregation had fired the minister!) In an era of unprecedented technological change, it is necessary to introduce unprecedented protection for writers, beginning with improved compensation.

So back to the writers' strike. It seems to me that neither writers' compensation nor the legal protection for their creative work have kept pace with technological change. The time has come for the media giants to pony up and compensate their writers more fairly for their work. Why should the hosts of late night television continue to earn ridiculous incomes and the companies they front for reap equally ridiculous profits, while the writers behind their admittedly banal programs are treated like factory workers? The same is true for Hollywood writers and even political speachwriters. Does anyone really believe that most of the words attributed to political leaders in the various books of quotations, at least since Abraham Lincoln, actually tumbled forth from their own minds? And does anyone think it fair that a Shakespearian actor should earn more than the bard himself, if he were still alive and writing today? So producers and corporations should settle this strike, and settle it on generous terms, while legislators should embark on rewriting the laws of copyright to protect and promote the creative genius which lies at the heart of all true culture.

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