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    Copyright vs. Truth

    The family of the poet Ted Hughes has just "withdrawn permission" for Hughes's biographer to quote from his papers and letters, including papers and letters that the family has already sold to the British Library. The biographer, who's been working on this book for years, has already read those papers. He knows what's in them. But he is no longer allowed to tell us what he knows. How can this be? Copyright law.
     

    The Shakespeare scholar Jonathan Bate, who began working on a biography of the former poet laureate in 2010, said he was surprised that the estate has barred him from private archives, asked that he return photocopies of privately held documents, and withdrawn his right to quote extensively from the poet's work – described by the professor as "an essential aspect of serious scholarship".


    That's right. A respected scholar (and Bate is extremely well-respected) has been legally barred from quoting archives that are housed in the national library. Because Hughes's heirs have inherited his copyright. This has become a standard tactic used by writers' families to suppress facts.

    In 1987, J. D. Salinger sued Random House and successfully blocked a biography of him, because it used letters that Salinger had sent to people. Under earlier copyright law, those letters would have been fair game, but under current law the author and his heirs have a right to control just about everything he's touched. So Salinger could prevent biographers from using his letters. This is so extreme that when the biographer paraphrased what he'd seen in the letters instead of quoting them, Salinger still managed to sue and win. It's not that Salinger was suppressing lies about him. After all, he had written everything in those letters himself. Copyright law allowed him to keep the truth from the light of day.

    Later, James Joyce's family forced the Joyce scholar Carol Shloss to remove nearly all the archival evidence from her book on the role Joyce's daughter Lucia played in her father's work. Shloss then got savaged by reviewers for making claims that she apparently couldn't back up with facts. Actually, Shloss did have the documented facts, she just wasn't allowed to use them.

    Shloss eventually won the right to republish her book with the actual evidence in it, but it took years and years of suits and counter-suits. And even if that sounds like a happy ending, it's not. If a publisher knows that publishing your book is going to mean years of expensive litigation, it is not going to publish your book, even if you have a good chance of winning in the end. The threat of legal action by estates is enough.

    Here's the joke: this law can only be used to prevent a scholar from telling the truth. The estate only holds the copyright of a letter or diary because their ancestor did actually write it. A writer's heirs could never sue a biographer for libel. Dead people cannot be libeled. But a writer's family can come after your house for quoting that writer accurately.

    Worse still, families can use the threat of withdrawing permission in order to demand that biographers turn out the biographies that the family wants. If you don't make Grampa look the way they want Grampa to look, they can kill a book that you've already spent years working on. The law is abused to create propaganda instead of scholarship, to force biographers to turn out distorted, hero-worship versions of the truth. Society gains nothing from that. The law as currently enforced actually promotes falsehood and dishonesty.

    And please remember: this law does not only apply to writers. It applies to everyone, including public figures. Everyone's personal letters, diaries, and journals are copyrighted until 75 years after they die. Which means that public figures' heirs will also be free to cherry-pick which historical evidence about them gets published, and what can never see the light of day.

    Comments

    They can copywrite quotes, but not facts. As a respected scholar, can he not assert the essence of what he's read? Sure, other scholars would like to verify it, and eventually (in a hundred years or so) they will, but meantime, is this a place where he can say, "trust me"?

    Edit to add: apparently not. I just finished reading what you wrote.


    Yes, but families are using copyright to protect facts anyway. Look at the Salinger decision, which forbade paraphrase of the letters. If you can't even describe the contents in other words, the fact itself has been improperly copyrighted.


    Yes, which I believe could be successfully defended in court, but as you point out the threat itself might suffice to keep publishers away.


    "Here's the joke: this law can only be used to prevent a scholar from telling the truth. The estate only holds the copyright of a letter or diary because their ancestor did actually write it. A writer's heirs could never sue a biographer for libel. Dead people cannot be libeled. But a writer's family can come after your house for quoting that writer accurately."

    Copyright is intended to preserve and protect the monetary value of an author's work(s). Isn't it therefore reasonable that the heirs would want to prevent anything that would diminish it value like diminishing the reputation of the author? 

    In this context, I cannot help but think of the very frequent public rows over Martin Luther King's papers and personal effects. It always seems to be about the money involved.

     


    It's about money and about control, I think. MLK's family wants to control his legacy, which is understandable. But they shouldn't get veto power over history.


    Just awful.


    George W. Bush Used Top Google Results for All Paintings; Who Will Sue for Copyright Infringement?

    http://www.truthdig.com/arts_culture/item/george_w_bush_used_top_google_...


    Where is the academic biographers' lobby when you need it?


    Or the historian's lobby. It's political and historical figures, too.


    This is just stunning, Doc. Generally speaking, the truth has been a terrific defense in matters of expression.  In the U.S., at least, being able to reasonably prove that what you've written is true will dependably defang any threat or libel or slander lawsuits or of the nice trick of claiming "tortious interference."  Now, suddenly, copyright outweighs truth even when a great many other legal complaints do not.

    As a creative guy rather than a scholar I am most annoyed that these newly strengthened copyright laws do nothing but protect the achievements of the recent past while they actually hinder the development of new art that is based on recent art.  This actually creates discontinuity in art history.

    Take music sampling as an example.  The way I see it, people making music in the era of recorded technology are largely making art based on the art they've been exposed to. If the culture is going to give you certain hooks, baselines and vocals, you should be able to use those hooks, baselines and vocals to respond to the culture.

    Similarly, there's my recently published (and proud to say it) parody of A Perfect Day For Bananafish.  There's a very good chance that I am simply lucky that Salinger's estate is not looking that way, even though a friend of mine remarked that it's a pretty darned good expression of where Salinger saw the culture heading.

    Honestly, I feel like I should be allowed at this point to make a Super hero team out of Fitzgerald and Hemingway characters and to make a franchise out of it, but I am not allowed.  The culture exposes me to all of these characters in high school but as an adult, I am not allowed to play with them?

     


    There's definitely a problem with people trying to use intellectual property law to *effectively* control things they are not allowed to own, such as underlying facts. This is a problem with databases, for example, because some database owners try to control the data itself. And don't get me started on genome sequencing.

    And I certainly agree that many works and characters should be available for remixing by this point. It is a historical oddity that they aren't; at no other point in history have 85-year-old books been kept out of public domain.


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