Imagine that you are writing a story about two young men in a car on a road trip. The time is recent, and the car’s radio is on. For a minimalist, this is already becoming too much information, but most writers will have bought into the notions of detailed characterization and sense of place and will want to allow readers to hear what is playing. If the youthful adventurers are fans of Palestrina and have found a public station playing his music — perhaps an episode of Harmonia — all is well. The words have been in the public domain for a long time. If you are good at creating lyrics for songs that sound like what gets airtime today, the same is true. But if you want to include the color of contemporary culture as the story’s setting, you are going to run up against the limitations of copyright.
This subject is a strange one in the history of writing. In the ancient world, many authors borrowed the names of legendary figures to attach credibility to their work. King Solomon, for example, got a lot attributed to him that he never read, much less wrote. And for most of the history of human creativity, the understanding of intellectual property was rudimentary, if accepted at all. Chaucer used the structure of Boccaccio’s Decameron and some of his stories, as well as the tales of other writers from continental Europe. And quoting or alluding to the works of others was in many periods a sign of one’s education. John Milton is a case of this, as he is one of the most literate writers in the English language, and he puts his learning on display. With the development of the printing press, human beings discovered the need for a constant stream of content. Just as today’s cable channels will fill the hours with something, anything, the early printers would put out whatever they could get their hands on, whether or not the author got paid.
These days, authors are not getting paid much, unless they are already famous. The major publishing houses are unwilling to develop new authors or to provide the advertising and publicity necessary to get them into broad awareness, and small presses do not have the resources to do these things. Self-publishing is an option, but “self” means you are on your own for everything if you cannot pay for expert assistance.
We are at the waning end of a period in which intellectual property was seen as sacred. The lawsuit between Dan Brown and the authors of Holy Blood, Holy Grail is illustrative of the concept and the problems it created. Brown was accused of having plagiarized the earlier work when creating his novel, The Da Vinci Code, a claim that was ultimately rejected on the grounds that Holy Blood, Holy Grail was presented as a work of historical research, and while the wording can be given copyright, facts cannot. The legal squabbles may have been a means of bringing new attention to a book that was over two decades old, or it may have been the pique of Michael Baigent and Richard Leigh over having their names mashed together to make one of the novel’s antagonists, Leigh Teabing. But the dispute dealt with a doctrine in the case law that authors of recent years have lived with: fair use.
This is a fuzzy concept, but in summary, it is the principle that if you are going to use the work of another without permission, you should use as little as possible and as much as possible in a way that makes something new out of it. Non-fiction works that are doing criticism, commentary, or satire are much more protected than are works fiction or poetry that borrow. A review of an artist’s work, such as what I wrote as a memorial on the death of Neil Peart, can take pieces of that work for the purpose of an evaluation. But when I wrote A Draft of Moonlight, I had to get permission to use some of the lyrics from Pink Floyd’s The Dark Side of the Moon.
That turned out to be a lot easier than I thought it would be, and I only quoted a few lines. Stephen King makes frequent use of the popular culture of his or his story’s time in his novels, and this gives a naturalistic coloring to what he writes. Characters who watch the movies and listen to the music of their days feel right. The nostalgia of Stranger Things, for better or worse, is enhanced by having contemporary songs as the soundtrack — though I am still waiting for “Subdivisions” to feature in an episode. But independent creators have a harder time being safe in adding this color in — the constant copyright strikes on YouTube act as a reminder here.
I said that we are at the end of a period in intellectual property because the Internet has made walling off content a lot more difficult. Providers can require subscriptions to read their sites, but if their videos, text, or music ever get out into the open, controlling it is like grasping the wind. This is nothing new to the people who have been sampling bits of music for their compositions. With that context in mind, the idea that new creators might borrow pieces of older works should not scare anyone.
I am not suggesting that presses should be allowed to grab an author’s book and sell it as their own property. What I am suggesting here is that we need a broader reading of fair use. One advantage is clear from what I have said so far, namely the ability of writers to make richer worlds for their stories that take place in their own lifetimes. Works set today that only quote from public domain material would give the impression that the characters are nerds. There is nothing wrong with that, but it may not be the characterization that the author wanted. But more than this, getting noticed is the sine qua non of today’s art. If one author quotes another, that second author gets a bit of publicity.
I am not opposed to the concept of intellectual property. I do think that an interpretation that is more open to quoting, adapting, and reframing would make for freer and more interesting content.