Mr. Helprin, The Lawyers For The Shakespeare Estate Are On The Line

I am having a hard time understanding why the novelist and conservative political pundit Mark Helprin wrote this almost comically illogical op-ed piece in the Sunday Times advocating eternal--yes, literally eternal--copyright protection for written works.

Rather than offer a point-by-point refutation of Helprin, since his article actually only makes feints in the direction of a coherent argument, I'll just note a few of the lowlights:

*Helprin compares the eventual end of copyright protection for a work of literature to government confiscation of a business, or "the seizure of Bill Gates's bankbook." Maybe this analogy would hold some water if it were true that out-of-copyright works become the property of the government which then controls their publication and derives profits from them. Since nothing like this happens, in what sense is the government "confiscating" anything?

*Helprin suggests that the current limitation on copyright is based primarily on envy of successful writers:

To the claim that this provision strikes malefactors of great wealth, one might ask, first, where the heirs of Sylvia Plath berth their 200-foot yachts. . . . Furthermore, one should not envy the perpetrators of sensationalist trash, but rather admire them, in the hope that someday, somehow, without prostituting, debasing and degrading oneself while recklessly destroying what is left of the literary culture, one might enjoy a fraction of their wealth. They represent, however, only a small fraction of writers, and their good fortune is a poor excuse for seizing either their property or that of their leaner colleagues.

This is the first time I've ever heard anyone suggest that the traditional expiration of copyright is based on a desire to prevent writers from growing wealthy. It's a classic straw man argument: Helprin conjures up an idiotic position that no one takes in order to dispatch it in lordly fashion and declare his case won.

*Helprin uses rhetorical sleight-of-hand to make it sound as though the perpetual copyright he advocates will benefit hand-working creative types:

Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice. No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.

As the crocodile tears fall, one might almost lose sight of the fact that, under current law, copyright protection expires seventy years after the death of the author. Think about what this means. I am a writer and I make a living from the value of the copyrighted works I create. But the eventual expiration of copyright doesn't take a penny out of my pocket. Nor out of the pockets of my children. And probably not even out of the pockets of my grandchildren. If I die in, let's say, the year 2030 (when I will be 77 years old), all copyrights in my name will expire in 2100, when my grandson Jakob will be 101. If anyone will be affected by the resultant loss of income, it might be Jakob's kids, but more likely his grandchildren.

Frankly, I haven't lost a lot of sleep worrying about the financial security of my great-great-grandchildren. Nor do I spend a lot of time trying to devise some strategy whereby my great-great grandchildren will have to work less because they can count on paychecks derived from writing I did 115 years earlier. And somehow the idea that the income from my books will stop in 2100 doesn't make me feel like a victim of injustice, nor does it remove my incentives to keep writing. I find it very hard to imagine a writer who would actually feel that way.

*Finally, Helprin implies that the only people who benefit from the eventual end of copyright are booksellers who profit from the publication of public-domain works:

"Freeing" a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses who will continue to profit from, for example, "The Garden Party," while the descendants of Katherine Mansfield will not.

Oh, the injustice! But actually the public benefit from the public-domain concept is obvious and inarguable. Do a search for Pride and Prejudice on Amazon and you get 8,739 results, including literally dozens of editions in every conceivable format, from affordable paperback versions to lavish illustrated hardcovers; many audio versions and several movies in various styles; and a host of literary adaptations, from sequels and parodies to (of all things) a sonnet sequence based on the novel.

Each of these 8,739 effusions represents a fresh choice for consumers and a creative act that would be impossible if Pride and Prejudice were still under copyright. (Or, to be precise, that would be possible only if Jane Austen's heirs could be convinced to authorize it, as the heirs of Margaret Mitchell have grudgingly agreed to authorize a select few of the derivative works that later artists have tried to create based on Mitchell's Gone With the Wind.)

Does Helprin really believe the world would be a better place if generations of writers, artists, composers, playwrights, and filmmakers had been forbidden to experiment with variations on the works of Shakespeare, from Verdi's Otello to movies like Forbidden Planet and Clueless to plays like West Side Story? (You might think that the author of a novel titled Winter's Tale would see the logic of this argument, but never mind . . .)

Helprin's whole case is so absurd that I'm driven back to the question of motivation: Why would he write something so ridiculous? I can only think of two possibilies: (1) He is the helpless captive of an ideological bias in favor of property rights so strong that it blinds him to the practical realities even of the very industry in which he himself has worked. (2) He has chosen to carry water on behalf of the great media companies like Disney, Viacom, and News Corp that would be the main beneficiaries of perpetual copyright lockup.

Unlike actual creative people--writers, artists, musicians, and so on--the people who rule such companies dream of a world in which culture is under tight corporate control backed by the enforcing arm of government: "chartered" (as William Blake would say) and thereby both financially harnessed and spiritually neutered.

How nice for the lawyers at Disney to have a tame novelist like Helprin advocating for them.

Tags: Mark Helprin, copyright, Disney, Jane Austen, Margaret Mitchell