Roger S. Fisher, Ph.D., LL.B. teaches a course on copyright policy at York University to third year Fine Arts students. He is a member of the Bar of Ontario and currently represents a non-profit academic journal that is one of over two hundred third- and fourth-party defendants in a class action lawsuit involving a copyright claim on behalf of freelance journalists.
My teenage son and his rock band want to put one of their songs on YouTube but are concerned about protecting their composition. A parent, trying to be helpful, suggested they should first do the "poor man's copyright." Meanwhile, I hear some children drawing super heroes in the backyard. "You can't draw that," I am astonished to hear one say to another, "it's copyrighted." Where in the world do young people learn such things? That is a question that comes up in the third-year seminar on copyright law and policy that I teach to Fine Arts students at York University. I am always interested in how they, as aspiring artists, learn about copyright, and how they integrate, or perhaps weave around, copyright in their creative work. What do they know about copyright from the stories they hear? What does the law of copyright look like from below, so to speak, and not from the mountaintop (if you will excuse any implication of hierarchy in the metaphor). What I do find is a great deal of misinformation, and perhaps most of all, anxiety.
I begin the third-year seminar with an exercise. I ask the students to return the following week with "ten myths" about copyright. I know that they will immediately go home and Google the topic and will have no difficulty finding many web sites listing the myths, usually ten, of copyright. The students are required to keep their list and, by the end of the term, to invert the list into ten things a Fine Arts student should know about copyright. So the exercise becomes, hopefully, a positive exercise. But all of this begs the pending question. What should Fine Arts students know about copyright? What, indeed, is "the truth" about copyright?
I can think of no other field of law that is presented in the popular media in the negative, that is to say, by reference to what it is not, rather than to what it is. I acknowledge that most of the web sites listing the myths of copyright are meant to be helpful, perhaps even educational (although many are just marketing teases by lawyers and law firms seeking retainer work). But why speak of the myths of copyright? I am still intrigued by the phenomenon that copyright, a legal concept, is associated with myths and mythology. Does this suggest that copyright is, in the cultural studies sense, perceived to be inaccessible and inferential, an aporia, defying definition in the infinity of what it is not?
Unlike most areas of the law, but like mythology, copyright is pervasive in our culture, but always just hovering below the radar of public consciousness. Copyright warnings and sensational stories about copyright cases in the popular media mean that copyright is probably the most immediate form of the law that the public is likely to encounter in a passive way, as prevalent as "no parking" signs and traffic signals, but with one important difference. Parking signs and traffic signals stand for what they represent. Copyright stories and copyright notices stand for something else, something far more intangible and elusive. That is one of the paradoxes about copyright. It is everywhere and yet incapable of being grasped, unlike other areas of the law, which are either intuitively right (the laws based on morality, for example) or in such close consonance with core social values (the law of contract, for example) that there is either broad consensus that the law in that area is generally acceptable or else so arcane that it can be safely left to the experts. Perhaps that is the source of the confusion, the stories, and the mythologies. The public policy of copyright remains elusive, just beyond our grasp as it were, and so it is easier to speak of the mythologies of copyright, what it is not, rather than what it is, or what it might become.
If we define myths as broad cultural narratives that contain deeper truths, then the myths of copyright are not just superficial mistakes in the public's technical knowledge, as implied by the websites to which my students go, but are the stories where the deeper truths lie, stories that mix fact and fiction, have no beginning and no end, and where the meaning and the moral of the story must always be deferred. How far must we go into those stories in order to track down the elusive truths about copyright? Does it matter anymore, after a smear campaign that has lasted for over two centuries, that we now know the classical composer Joseph Haydn was not sued by his student Ignaz Pleyel and did not infringe anyone's copyright (although he did take credit for the student's composition without the least amount of embarrassment)?1 Does it matter that everyone has heard about the notorious George Harrison case, but that hardly anyone knows that the judge who ruled that George Harrison's "My Sweet Lord" was an infringing copy of the Chiffon's "He's So Fine" also awarded Harrison ownership of the very song he allegedly infringed (as a way to punish his manager, the notorious A.B. Klein, who purchased the rights to the song mid-trial)?2
Once a myth is told, it resonates and reverberates in the cultural echo chamber, and like the afflictions that flew out of Pandora's box, can never be called back. Several years ago the popular media were full of stories that copyright to the image of Che Guevara, the "most famous image of the twentieth century," had been awarded by an order of the British High Court to the photographer Alberto Guetierez.3 But the case was settled before a judgment could be rendered (which has interesting implications, given that the defendant Smirnoff and its advertising agency were in the peculiar position of having to defend the public's access to the image, which they reputedly sold for $50,000 U.S. and a consent order). I have tried in vain to obtain a copy of that High Court order, but it doesn't matter anymore. The story is out now, in the public domain, so to speak, and will have a life of its own.
1 Nancy Mace. "Haydn and the London music sellers: Forster v. Longman & Broderip." Music and Letters, 77.4 (Nov. 1996) 527-41.
2 Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976); ABKCO Music, Inc. v. Harrisongs Music, Ltd., 508 F. Supp. 798 (S.D.N.Y. 1981), aff'd with modification and remanded, 722 F.2d 988 (2d Cir. 1983); ABKCO Music, Inc. v. Harrisongs Music, Ltd., 841 F.2d 494 (2d Cir. 1988) (per curiam); and ABKCO Music, Inc., v. Harrisongs Music, Ltd., 944 F.2d 971.
3 "Che Guevara photographer sues." BBC News Online, Monday, 7 August, 2000 (http://news.bbc.co.uk/2/hi/americas/870176.stm); Pascal Fletcher. "Vodka and Che Guevara just don't mix: A photographer is waging a UK courts battle to protect his image of the Cuban revolutionary." The Financial Times (Sept 11, 2000) 11.