Fairly Symmetrical

Evidently the Yale Law Journal has begun putting some of their articles online. They have a really good article up entitled The Freedom of Imagination: Copyright's Constitutionality, about whether or not copyright (being, as it is, a major restraint on the exercise of free speech) is constitutional. The author decides copyright proper (that is, the parts that deal with unauthorized reproduction and distribution) are constitutional, but that the parts prohibiting derivative works may not be. To support the idea he puts forth a new logical basis for the First Amendment, which is that it is intended to protect the free exercise of imagination. His reasons for the basis are very interesting and, I think, quite persuasive. In fact, this seems like the best suggestion for balancing copyright with artistic interplay I've read yet.

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I do think Jenny might have some disagreements with some of the consequences of the analysis, however, particularly this part:

Live performances of copyrighted work, therefore, should be immune from
injunctions or damages. But if money is made from such a performance, the
copyright holder could have a claim to apportionment.

Basically, what he's saying here is that authors of works (for instance playwrights) would lose the ability to enforce their creative vision on performances of their plays. Anyone could perform their play in any way they wanted to (since, as a significant infusion of creativity, the performance would be an unprotected derivative work rather than a protected copy). Note the last sentence; essentially, the original copyright holder would be entitled to a portion of the profits of any derivative works, in proportion to how much of the derivative work was directly indebted to the original. I'm not going to get into how messy this could get when you have a 15th or 16th generation derivative work, with all the profit sharing that could be going on there, especially when you consider that each work could be derivative of multiple works (consider, for instance, a "Star Trek vs. Star Wars" movie based on a comic book based on a graphic novel based on the movies).

From what I've seen of the theatre, it looks like many playwrights exercise iron-fisted control over performances of their play, forcing anyone who wants to perform it to bend to their wishes. These can include who is and is not allowed to audition for the play (or get parts), what kind of spaces may be used, required reserved seats for the playwright at every performance (seriously, Jen is directing Into the Woods right now, and they have to set aside 2 seats at every performance for Stephen Sondheim, just in case he wants to come see a student production of his show all the way out here in St. Louis), and anything else the playwright wants. Obviously there are checks there (in that if you make it too painful to perform your show, noone will perform your show), but the point is that right now playwrights (novelists, etc) can exercise significant control over how their creations are performed, and under the suggested interpretation they could not.

As I said, I am uncertain how Jen (as a representative of both the playwright and director side of the fence) would view this development. On the one hand, it would mean that anyone who wanted to could perform White Rabbit without asking permission and without restrictions, so long as they shared profits (if any) with Jen. On the other hand, Jen would then be able to direct shows without bending over backwards to fulfill the playwright's demands (aside from profit sharing).

It's an interesting thought experiment, anyway; I don't expect it to really take hold any time soon (if nothing else, it would take authors and playwrights to get used to the idea of relenquishing complete control over their pieces, even if they could then easily draw on a vastly larger and more modern body of work in return).