Re: attn. JMS: A TV writing question...

 Posted on 6/30/2003 by to

>Why shouldn't I receive royalties when an appellate brief which I've
>drafted is cited in case law or in pleadings?

There's a flaw in your logic. Are you making a point-for-point comparison to
your brief and, say, Godel-Escher-Bach? Or The World According to Garp?

There is, and should be, a special category for works of art, and for artists.
The only way that your scenario works is if no one piece of writing is better
than any other piece, and thus they all deserve to be treated the same. But
that's fallacious reasoning.

(And there's a difference between a brief being *cited* and a work being
completely reproduced. Any good lawyer, or paralegal, would know that.)

>I'll concede that there are some folks who write one bestseller or one
>musical hit, and then never make it back into the limelight. Nevertheless,
>the same can be said for most other areas of life.

Apples and oranges. There's art, and there's everything else.

>People engage in a single
>amazing act of heroism and then vanish into obscurity.

Heroism isn't a book, isn't a painting, isn't something that one *created*.
It's an incident. There are no two contiguous points of comparison between,
say, writing a novel and dragging somebody out of the lake before they freeze.
They're simply two different activities, and don't belong on the same playing
fields. An inappropriate comparison.

(And some *do* make livings off their brave acts by selling their stories.)

>Others make a
>suggestion or two that results in a complete change for an entire industry
>and are never heard from again.

Once again, an inappropriate comparison. A suggestion, something spoken, or
even written, isn't the same thing as a painting or a musical. Your reasoning
is specious.

(And in some cases, people who contribute something to a patent may, on filing
suit, be able to secure a portion of that, so again your argument falls apart
on the facts.)

>Why should entertainment be a special case?

It's plain you dont think it *should* be a special place. But artists are (or
can be) special people...we have lots of very nice, good people who work in
assembly lines making widgets...but we've only had one Beethoven, one Bach, one
Spielberg, one Whedon.

You may want everybody to be treated the same way, but society simply doesn't
do that. Not with politicians, entertainers, priests, and a number of other

>The constitutional provision for copyright law was "to promote the Progress
>of Science and useful Arts, by securing for limited times to Authors ... the
>exclusive Right to their respective Writings..." There's nothing in there
>about providing long-term income to them or to their heir

At that time, there wasn't really an entertainment industry as it exists today.
Nor could they have forseen it. For that matter, the average lifespan was
about fifty years if you were lucky, so long term retirement plans weren't
often an issue. Lots of things have changed since the constitution was
written, why shouldn't this one? Further, unless I'm misreading things or
you've left something out, there's no definition as to what comprises a
"limited time." If it's five years, ten years, fifty years, or a hundred
years, it's still a limited time, is it not? Only if it were infinite would it
be unlimited. So if it's fifty years plus, guess what, it's still a limited

>In fact, the use of "limited" would suggest that it was never the
>intent of the Founding Fathers to offer lifetime income

That's your inference, but that's not what it says. The provision is there
because the Founding Fathers knew that allowing writers the exclusive rights to
their works WAS what was needed to "promote the progress of Science and Useful
Arts." The whole idea of the provision as stated isn't to say "no, no, you're
limited to this period," it was to CREATE THE IDEA that they were entitled to
such rights in the first place. It was the ability to earn a living from one's
writings that would create and encourage these useful arts.

You're totally misreading and misusing that provision to try and make it say
something it didn't and wasn't intended to say. They felt that such rights
were essential to creating these arts.

>Promoting the
>"Progress of ... the useful Arts..." is sometimes done better by the absence
>of copyright protection.

But that's not what the provision is there for. You're arguing at
cross-purpsoes to yourself.

>For example, if I wanted to watch "Song of the
>South," I'm just plain out of luck because Disney owns the copyright and has
>decided to keep it locked up and inaccessible. Without copyright, each of us
>could decide for ourselves if the film has offensive stereotypes and could
>base our viewing decisions on our beliefs rather than letting the
>corporation decide for us.

First: tough. Private property is private property. They don't want to
release their property, it's their call. If they don't want you to see
something they own, it's their call. If you don't feel the same way, then I
suggest you put a web cam in your house so we can all see whatever we want of
your possessions.

Second, there are plenty of books out there with long excerpts, and quotes, and
pictures, more than enough for an educated person to make that decision for

>A similar argument can be made regarding the
>Bettmann Archives, now owned by Bill Gates. Millions of items of American
>history are under the umbrella of his corporate copyright, and he now can
>decide what we can and cannot see, and will continue to have absolute
>control over them for the better part of this century.

I don't know enough about this one to comment intelligently, so I'll pass.

The bottom line of the internet is that everything should be available to
everybody else, that no ownership of property can be allowed, that no one
should have to pay for anything, that it should all be free.

Which is great for the deadbeats who don't want to pony up the money for
anything, but it will eventually kill the goose and step on the golden egg,
because it will destroy the ability of authors and artists and comoposers to
make a living doing what they do, which is to create extraordinary works that
reflect our society in one-of-a-kind ways.


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