Would King Lear Ever Have Been Written If Copyright Law Existed?
from the probably-not... dept
This is great. For a few months now, I've been intending to write up a post that highlights how much of Shakespeare's work would have run into copyright trouble today if he (or whoever wrote his stuff, for those who believe it was someone else) were faced with today's copyright laws and/or today's technologies. While I haven't found the time, Groklaw has stepped up and done it for me -- at least with regards to King Lear, noting how unlikely it is that King Lear would be written today under the same circumstances, since there would be numerous potential copyright claims:If the current US Copyright Law had been in effect over Shakespeare, I think he could have been sued by many authors for copyright infringement for writing that masterpiece.Indeed. This is a point that needs to be repeated again and again -- and yet for some reason, industry execs, politicians and even many in the press seem to buy (hook, line and proverbial sinker) the idea that copyright is somehow necessary for the creation of great works, and that such punishment is reasonable under the law. They'll claim that Shakespeare (or his modern equivalent) should simply write something different -- though ignoring how this would rid the world of King Lear. Shakespeare didn't rely on copyright to earn a living. Copyright is one form of enforcing a business model, but it is hardly the only one.
Count how many lawsuits there could have been just for King Lear alone:Shakespeare's play is based on various accounts of the semi-legendary Celtic mythological figure Lear/Lir. Shakespeare's most important source is thought to be the second edition of The Chronicles of England, Scotlande, and Irelande by Raphael Holinshed, published in 1587. Holinshed himself found the story in the earlier Historia Regum Britanniae by Geoffrey of Monmouth, which was written in the 12th century. Edmund Spenser's The Faerie Queene, published 1590, also contains a character named Cordelia, who also dies from hanging, as in King Lear.How many lawsuits do you see? At least a half dozen? I even see some methods and concepts claims, if we view it with modern copyright owner eyes. Remember J.K. Rowling's litigation over methods and concepts that Darl McBride and Chris Sontag cited? I suppose he could have raised a transformational fair use claim. But what if he accessed the prior works in digital format? Does fair use exist there? Or maybe they'd have been DRM'd. He'd maybe then never have read them.
Other possible sources are A Mirror for Magistrates (1574), by John Higgins; The Malcontent (1604), by John Marston; The London Prodigal (1605); Arcadia (1580-1590), by Sir Philip Sidney, from which Shakespeare took the main outline of the Gloucester subplot; Montaigne's Essays, which were translated into English by John Florio in 1603; An Historical Description of Iland of Britaine, by William Harrison; Remaines Concerning Britaine, by William Camden (1606); Albion's England, by William Warner, (1589); and A Declaration of egregious Popish Impostures, by Samuel Harsnett (1603), which provided some of the language used by Edgar while he feigns madness. King Lear is also a literary variant of a common fairy tale, in which a father rejects his youngest daughter for a statement of her love that does not please him.[5]
The source of the subplot involving Gloucester, Edgar, and Edmund is a tale in Philip Sidney's Countess of Pembroke's Arcadia, with a blind Paphlagonian king and his two sons, Leonatus and Plexitrus.[6]
Of course, what really would have happened is there never would have been a King Lear written. It would have been too legally risky. You can go to jail for copyright infringement, after all, even if you are noncommercial, if you distribute a DVD, and if we are imagining, let's imagine Shakespeare did that. Shakespeare wasn't even noncommercial. And there are criminal sanctions under regular Copyright Law, too.
If Shakespeare had plenty of money, he could have contacted all the copyright owners and paid them whatever they asked, but if he didn't have enough money, the result would have been he would have been unable to afford to write King Lear. Do we want a world where Shakespeare can only write King Lear if he has money? If you think I exaggerate, remember what happened to internet radio? And if one song is worth $80,000, is the sky not the limit, if you are a copyright owner and hold all the legal cards and can get Congress to keep upping the ante to suit you?
Incidentally, has anyone done a study to see how many songs in the history of the world earned $80,000 for their authors?
If King Lear had been written anyway, despite the odds, Shakespeare could have been sued for copyright infringement, one case after another, and his reputation would have been ruined, probably being branded a willful copyright infringer instead of an artistic genius, which he was, willfulness being assumed under the law, a rebuttable presumption, and he'd have likely faced damages equivalent to a lifetime of indentured servitude.
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Filed Under: copyright, king lear, shakespeare
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The author does present one compelling example, though. That Shakespeare allegedly mined
"A Declaration of egregious Popish Impostures" for "language used by Edgar while he feigns madness" does present potential claims for infringement. However, this single example does not really support the proposition that King Lear would never have been written had copyright existed in Shakespeare's era.
Nonetheless... even if the point were conceded, it seems somewhat hollow to me. Much of the artwork of Shakespeare's era was funded by patrons of the art. A system of copyright has as one of its aims to free artists from the parochialism involved in such a system. So...even if it is true that some art would not have been created in a copyright world, the question taken alone ignores the fact that but for copyright a lot of art would not have been created. It is in essence a two-way street.
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King Lear
It simply means we must refine the system. Fortunately your dialog here is helping to do just that!
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Re: King Lear
What people need to understand that all this talk of "creation" and "creators" is formulated so as to think that the creators and their creation is 100% original. That is a fallacy. Everything is built on top of existing knowledge. We used to acknowledge that too. Do you know what is written on the side of the 2 Sterling pound coin? It says "Standing on the sholuders of giants". Think about that for a bit. Let me give an example of a situation in which that still applies: scientific papers - the more citations, the better for the author because it means that his work was meaningful, the more refernces, the better, because it means that his work is built on top of sound ideas.
The bottom line is that we should stop being hypocritical and claiming that using existing ideas equates to ripping off the people coming up with those ideas. Those people, themselves, used their precursors idea and built on top of them. Letting others use these ideas should be considered a way of paying back for the fact that they had someting to build on... otherwise we would have to reinvent the wheel at each couple of generations.
Another important point is that inovation loses its novelty status rather quickly. If you were the first one to come up with the product, you already have the upper hand on your competitors and they will have to come up with something better or different to gain the upper hand on you. Creating state-granted monopolies (because that is what IP laws are) just slows that whole cycle down and hinders progress. It creates entrenched companies that can gain the upper hand on the market not by being more innovative or by creating better products or services, but by leveraging their economies of scale to stifle competition.
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Re: Re: King Lear
The big labels have left a bad taste in most peoples mouth but now we are in a time where writer's are mainly self publishing. Let us build on that. It is a new day. The big labels rule is over....let it go.
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Re: Re: Re: King Lear
Because they no longer make sense? Rules based around controlling copying and being paid for any copying and usage make little sense on the Internet -- for writers or for readers.
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It's no wonder the Internet generation has a negative point of view about copyright protection. All they've heard is "stop it, you can't do this, you can't do that, we'll sue you, you're stealing,"......and all under the banner of copyright infringement.
The Internet generation has to stop lumping copyright protection with big business. Big business's job was to exploit copyrights on behalf of the creators that didn't know how to do it themselves. Well they exploited themselves right out of business but you better believe they enjoyed it while it lasted. Now it's over. This is the age of self publishing. Those who publish in this age have to learn to incorporate or refine existing laws to define this era. History shows it's more likely to be done by improving the existing system not by totally destroying the idea born of many generations of shoulder standing.
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It's not because of "it was every man for themselves."
It's because the Internet is a giant copying machine. The function at the heart of computing is copying. Copying is at the heart of the communicating on the web. If stuff is online, it's going to be copied -- that's how the internet works.
Even more to the point: the marginal cost of reproduction is essentially $0. It doesn't cost you anything more to have 3000 copies made than to have three, once you've got the first. In a competitive market, price approaches the marginal cost of reproduction, which in the case of digital files is $0.
It's perfectly natural that the price of digital goods would approach $0, and that people using a giant computer network would engage in copying as they communicate.
The internet is about copying because the technology is about copying. It's not because the entertainment industry was slow, it's because they actually thought they could stop the technology.
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i want rules for someone who can kill me with a stupid mistake but i want full freedom for someone to entertain me cause a mistake for them will be out shined by their best work
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Re: Re: King Lear
Ideas are not copyrightable, only the specific expression of an idea is copyrightable. An idea might be patentable, though.
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Re: Re: #10, "reality check"
And no, "Inspired" and "Derivative" are two different words with two different meanings and no amount of your sour grapes hyperbole will change that.
BTW, have you made even half your investment back with the movie yet? It's been what? Two years now since people first saw it? How's your next movie going? Have you even started it or are you waiting to recoup the money from the first one?
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it's clear to everyone but the accountants
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Re: bible
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Shakespeare would have been fine
It was also a popular story, as evidenced by the many writers at the time who published different versions of the tale. As long as Shakespeare's expression of the story was unique, there would likely have been little to sue over.
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The risk of that alone would be enough to kill of many, many good works before they started. Plus if someone like Disney did push a case, it would bankrupt any one they were up against.
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As for the RIAA, while there have been stories of unsupported claims, most of the file-sharing cases I've looked at are not only at least minimally supported, but are often quite well supported.
The Thomas-Rasset case is a telling one: the jury found, and after reading many of the documents in the case I would agree, that she engaged in illegal file sharing and when caught, not only denied it (repeatedly, with changing stories, through two trials) but most likely destroyed evidence to hide her activities.
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"No, no, that's a bad printer. Don't download that song"
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Are you saying that none of the file sharers discovered by the RIAA are not guilty of the illegal conduct they're accused of? I would certainly agree that the RIAA's legal approach is ill-advised, but they're well within their rights and it's highly likely that most of the folks they target did break the law.
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Technically, I am, criminal infringement is a bullshit charge. In reality I know that a lot of people file share and it's inevitable that a lot of file sharers are threatened (it's a matter of odds, if you sue everyone, someone has to be in the wrong), but the vast majority of them are with limited or no evidence that they did anything. Going to trial with no evidence in the hopes that the person will be scared into settling (the outcome of most of the cases) and then backing off of most of the rest is wrong. The one case that has gone threw was hand picked because she destroyed evidence. And then we have the "damages". $80,000 for one song isn't just off, it should be criminally wrong.
And then we get back to the point I was originally trying to make: With all these threats and the possibility to be sued into nonexistence, I could most definitely see people not making something just out of fear of accusation. Especially from a company as big as Disney, even if it may be unfounded. And even if Disney decided not to push anything, someone else probably would.
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Second, RIAA has, despite clever rhetoric to the opposite, not "sued everyone". Yes, they've started a lot of lawsuits that at the start had evidence only that infringement had occurred and linked it to an IP address and a name of the owner/user of that IP address. Unfortunately, that is sufficient to begin the pre-trial process of discovery, which is why most people settle. Some may settle due to the prospect of the cost of defense, but I'm guessing that many more people settle because if they're honest with themselves, they know they did the infringing and that it will come out at trial.
The ones where the RIAA has "backed off," as far as I can tell, are where there is insufficient evidence that the particular person charged did the infringement or where someone else was found to have done it on the suspected computer/internet account. Which, of course, is what they are supposed to do and what the court would force them to do.
Actually, while I agree that Thomas-Rasset most likely destroyed evidence by installing a new hard-drive, there was no direct evidence of that presented in court (though the impression was there).
I agree that $80,000 per song is wrong, but that's what you get when you leave your fate to a jury. It's less than they could have awarded.
And then we get back to the point I was originally trying to make: With all these threats and the possibility to be sued into nonexistence, I could most definitely see people not making something just out of fear of accusation.
Fortunately, most content creators don't think this way. Music is still being made, recorded, and distributed (as Mike indicated in a post a few days ago, apparently more music than ever). Thousands of books are published every year (and hundreds of thousands more written but not likely to be published, at least not commercially). Movies are still made, etc.
Copyright really isn't all that difficult and with minimal care, a content creator will be just fine. If there is a possibility that material might give rise to a copyright infringement claim, it's not all that hard to have it reviewed. I understand that many here think that shouldn't be necessary, but, still, it's not all that hard.
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old saying
Copying from many sources is research.
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Profit
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Re: Profit
I think a more correct and supportable statement would be that "Of the people who advocate AGAINST the current system of "intellectual property" most actually profit from it today, directly or indirectly." Interesting, isn't it? That said, just because someone benefits from a system does not mean that their advocacy or counter-advocacy is less valid or authentic.
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The big labels have left a bad taste in most peoples mouth but now we are in a time where writer's are mainly self publishing. Let us build on that. It is a new day. The big labels rule is over....let it go.
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Re: Re: Profit
On the other hand, since the last fool who said that died, we perfected flight, invented jets, went to the moon, invented freezers, tv dinners, television, plasma tv's, the iPod, computers, jet packs, SCUBA, and millions of other devices.
There may be "nothing new under the sun," but do not bother telling that to inventors and innovators who prove that statement wrong, DAILY, they might stop being inventive and innovative and who knows how long it will take to invent faster-than-light drive?
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All devices are really just evolutions of the devices before or discoveries of things that already exist. Hell, the Internet, the most unique thing I can think of, is just based on networking computers.
Here's a better one. Your personality is a combination of your DNA and past experiences. It's not even a new thing.
So, knowing all of this, how can someone not stand on the shoulders of giants.
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The Premise is Problematic
I agree that we have gone past the point of fairness and equity for the content creator in a number of cases/industries and that reform is needed. But trying to somehow demonstrate the badness of our current era by making a stretched-at-best case on a 400 year old example, when the macro-economic and cultural evidence is entirely to the contrary is pretty tough to take.
Additionally, using the example someone who is arguably history's most successful playwright to say that "Shakespeare didn't rely on copyright to earn a living" is yet another example of the use of exceptionalism to try to define a rule. Most authors don't have wealthy benefactors, their own performance company or a trust fund to rest on. Before folks flame, I agree that singling our certain of the creative arts for royalty entitlements and not others is very problematic...don't deny that. But saying that "gosh, the world's greatest playwright didn't need copyrights to make a living in an era where support for the arts was done in an entirely different way" hardly creates economic or fiscal constructs that are applicable to most involved in the pursuit today.
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But, But, its still copyrighted!!!
http://www.amazon.com/King-Lear-Oxford-School-Shakespeare/dp/019832054X/ref=sr_1_2? ie=UTF8&s=books&qid=1245777747&sr=1-2#reader
Actually, this points to another form of copyright abuse. What is and what is not protected by copyright is not clearly defined. That leaves the reader with the impression that the work is still "protected" by copyright when in fact it isn't.
Also to follow-up on the Mike's post concerning the requirement that Universities protect the RIAA and the MPAA. How would the University react if Oxford Press issues a bogus take-down notice for works that are in the public domain? Just because someone asserts copyright ownership doesn't mean that they actually have a legitimate ownership interest. It unfortunate, that we seem to have changed the law so that someone can claim "ownership" without proof and point the finger of blame, but the pointee must somehow prove that the the pointer does not actually possess the "ownership".
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Re: But, But, its still copyrighted!!!
The actual text of the play is not copyrightable (and the copyright notice should have spelled this out), but the presentation may be.
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The larger question
There are those who contend that some iterations of his work came from people who copied his plays (early pirates, in other words) and recorded them for their own uses. Strike those.
Any of the performances or publications after the early seventeenth century until sometime in the eighteenth? Need to get licenses, and probably contend with the copyright claims against his works from the authors (or their estates) that he 'borrowed' from. (And Lear is not the best example for this particular excercise.) Scrap those.
But, hey, at least nobody will have been stolen from...
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Even the basic premise is flawed: If you're presuming that all these copyright holders would have sued Shakespeare, then you're ignoring that they all would have already sued each other--or not written their stories at all--and there wouldn't be a dozen different copyright holders lingering around waiting to sue Bill.
Unless, of course, their stories were all different from each other--which would include Shakespeare's--in which case they wouldn't have a copyright claim against him either.
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Genres, or types of stories are not copyrightable. So all the BS about "like this fairy tale", "like that type of father rejects daughter" is all horsecrap, a real bad attempt to attack copyright laws without basis.
Mike, you should be ashamed to even post this sort of thing, it really lowers the level of discussion.
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Shakespeare copied more than a genre. Most of his plays except for "The Tempest" were based on stories or plots that already existed. And does it matter if genres aren't copyrightable? Hasn't stopped people from trying that for music styles.
No, Anonymous Coward, you are the one caught attacking articles without basis. Go invite your friend angry dude over here so you can go cry in a corner about t-shirts.
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Ever the article itself suggests multiple sources of inspiration, and is careful to couch it's assertoins.
As neither one of us was there at the time, we don't know, example, if the stories are all based on a common piece of news, or the acts of a king / prince / nobility which each and every one of them heard about.
In the process of writing, your own ideas are often provoked by items you have read. None of the items listed here would be direct copyright violation even by modern terms, unless there is true word for word copying or complete scenerio copying.
"And once again, our favourite Anonymous Coward fails to hit the nail on the head; nay, he misses the wall entirely."
You can't see the nail, it's driven in completely.
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Re: genres are sometimes copyrightable
Sontag: My favorite example is the Russian author [Dmitry Yemets], who lost in a copyright case [after being sued by] J.K. Rowling, author of the Harry Potter books, in a Dutch court. He had written a book: It was a girl, not a boy, with magical powers who rides a magical fiddle and not a broom, goes to a boarding school to learn witchcraft and wizardry, plays a game of throwing balls through hoops. All these things were very similar to Harry Potter. Could someone else ever write a book about wizards and witches? Sure. But when the structure and sequence is the same…maybe the words, the code, isnt exactly the same, but Linux is trying to be just like Unix System V. The question is whether Linux was trying to be like Unix System V by doing it in ways that were illegal.
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Tricky defendant to track down
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If your business model even needs "enforcing" then you're either doing something wrong or the Mafia.
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