My new project involves examining legal protections for the public domain under United States copyright law. There’s a doctrinal component to that — what does the law say? — as well as a normative component — why should we care? It’s that latter question that I’ve been noodling around lately.
Anyone who looks for indications that copyright policymakers in the United States (including both Congress and the federal bench) share the belief, held by many legal academics, that a robust public domain is necessary to foster future creative production, is bound to be a little surprised: the evidence is actually fairly equivocal that Congress and the courts actually hold any such view. Even the language Congress and the courts employ seems, if anything, to be skeptical of the value of the public domain: it’s routine to speak of works “falling into” the public domain, which conjures to mind somebody clutching the ledge of a tall building, hanging on for dear life: quick, that work is about to fall! Won’t somebody save it?
The broadest judicial recognition of the value of the public domain that I’m aware of comes from Judge Kozinski‘s memorable dissenting opinion in White v. Samsung Electronics, 989 F.2d 1512 (9th Cir. 1993), which wasn’t even a copyright case:
Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.
Id. at 1513. Later, Judge Kozinski continued:
To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it.
Id. at 1517.
I’d like to be able to illustrate Judge Kozinski’s point for skeptical colleagues and friends by citing specific examples of particularly noteworthy works of art that are based on public domain source materials — in simplest terms, I’m interested in contemporary remixes of public domain works. (I appreciate that this is a narrower conception of the influence of the public domain on later creators than Judge Kozinski is actually talking about, but it makes for relatively comprehensible examples.) So, for example, we might say that West Side Story is thought to be a pretty effective transformation of Romeo and Juliet: it takes Shakespeare’s public domain play and makes of it something new, different, and by some measures at least, better.
The problem, of course, is that many remixes don’t remotely improve on the artistic value of the original. I’ve yet to meet anyone competently acquainted with both The Iliad and Troy who sees much worth in the latter. (Which is not to say that a dynamite modern retelling of The Iliad couldn’t be written; one of my old English profs, among others, has done so.) I was a kid during the disco era, during which it seemed like A Fifth of Beethoven was playing constantly; but that work, too, has not exactly held its own against the better-known public domain original. And you can probably think of others.
What are your nominees for the best/worst remixes of public domain works?