Lewis Hyde’s The Gift endures as a modern paradigm of critical-philosophical inquiry, steadily in print since 1983, though with an unsteady subtitle that has sensibly morphed from Imagination and the Erotic Life of Property into Creativity and the Artist in the Modern World. Not exactly an underground work, it retains a hallowed aura. Readers share it, in the ritual of gift giving that is Hyde’s ostensible subject, and recognize a bond with others equally touched. For all the bravura inventiveness, scrupulous research, and critical perspicacity that might recommend The Gift to anyone, Hyde triggers a particular zap in readers who—as the revised subtitle concedes—are artists. Mapping out the creative process and placing it in the context of an often indifferent or censorious community, Hyde has got the number of all those who know that “Speak, Muse,” is not only an invocation but also a plea, as in: Speak, Muse, now, or I will fucking kill myself.
Hyde’s new book, Common as Air, is superficially similar: It, too, is concerned with creativity, sharing, and communal property; it, too, is repetitive and larded with academic setups; it, too, peters out (Hyde has no gift for climax); and it, too, is indispensable. Where The Gift offers an inclusive theory about the way the artist functions, Common as Air is a resourceful call to arms to defend that function against the encroaching power of copyright fascism—legalistic barriers that undermine the very point of copyright, which is to encourage and protect artists, inventors, and scientists, not the heirs and corporations feeding at their troughs. The corporations complain of digital stealing, but it is their hold on cultural and scientific works, in violation of the framers’ constitutional mandate, that cheats the community, the public domain, or, in Hyde’s preferred trope, the commons.
Where The Gift is curious and liberal, Common as Air is angry and aghast. Hyde insists that understanding intellectual property and copyright “well enough to engage with [them], to take an informed position in the debate, is . . . one of the prerequisites of cultural citizenship in the twenty-first century.” One measure of his argument’s power is that what seems a tad autocratic in the opening pages resounds with unshakable authority by the closing ones. He begins with instances of the Motion Picture Association of America (the same MPAA that defended the studios’ right to colorize and edit movies over the uniform objections of its artists) encouraging grade schools to inculcate students with rules of good citizenship such as “downloading movies is the same as shoplifting,” “Intellectual Property is no different than physical property” (their caps), and the breathtaking “If you haven’t paid for it, you’ve stolen it.” Hyde does not bring in the issue of libraries and rentals, a sure response to those fiats. If a library buys a book, DVD, or CD, it can lend it to an unlimited number of members. If I buy that same item, I am equally free to loan it or give it away. What I cannot do is make another copy (that is essentially file sharing). In the digital world, where Andrew Carnegie, with his love for public libraries, must loom as an enemy of capitalism, I am even enjoined from making loans. The Kindle and its competitors allow me to purchase the words of a book but not the book itself. If my wife wants to read it, she cannot take it down from the virtual family shelf but must purchase another copy. You don’t really own an e-book. Kindle deletes paid-for magazines after a certain number of months; in 2009, when it sold a book in violation of copyright, Amazon stole into its customers’ virtual libraries and made the book disappear—in virtual violation of the Fourth Amendment.
Indeed, any discussion of American copyright law must begin with the Constitution, which, not surprisingly, got the issue exactly right. In Article I, Section 8, Congress is given the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The key phrase here is “limited times.” Over the next century and a half, the period of exclusive rights increased from fourteen years to twenty-eight to a renewal of twenty-eight, adding up to the reasonable figure of fifty-six years. The fact that the Constitution does not delineate a number is in keeping with its genius in recognizing that, as with citizenship and suffrage, things will change. But no one can doubt the framers’ intention: They meant, initially, that a work should be protected for a generation, certainly not longer than a lifetime. A lifetime of protection might amount to perpetuity in the lifetimes of others, and an abuse of the commons.
Hyde is especially good in proving this point. He uses the correspondence of Jefferson and Madison, the publications of Paine, and, with a surfeit of illuminating detail, the writings, achievements, and attitudes of Franklin to demonstrate that the framers were thoroughly occupied with the importance of advancing the arts and sciences by guaranteeing creative persons the right to own and control the fruits of their work, while insisting that, unlike property, that work must ultimately benefit the republic and the world. (It is heartening, in these xenophobic times, to realize how utterly concerned the framers were with foreign traditions, values, and creations.) Hyde notes the European minds who influenced the framers, including Newton and Dr. Johnson (who prophetically thought copyright should last for the author’s life plus thirty years), and the attitude shared by Jefferson and Madison that intellectual property amounted to a right of monopoly, not a right of property, and needed restrictions to protect the interests of democracy.
Copyright, in short, served two purposes, ensuring two guarantees: that the creative person could financially benefit from the fruits of his or her labor, and that the public domain would constantly grow in service to all mankind. Think of the public domain as a geographic reality: the Public Domain, a place where the greatest works of humans of every land and time freely nourish us and the generations to come. If its gateways are closed for a hundred years and more, its expansion slows and the cultural commons stagnates. That is precisely what happened in 1998, with the passage of the Sonny Bono Copyright Term Extension Act, passed in a blizzard of bribes (the accepted euphemism would be “campaign contributions”), spurred by the Walt Disney Company to protect Mickey Mouse from going public. Cultural advancement was hobbled to prevent other retailers from manufacturing Mickey Mouse ears. Financial considerations aside, the decision was particularly ruinous for Mickey. A generation of writers and painters and filmmakers who might have released him from corporate darkness, rediscovering him as the universal symbol of adventurous anarchy he once was, will be delayed until it is unlikely that, when he is free at last, anyone will care about the erstwhile king of animated mice.
Copyright became a sore point when Irving Berlin, who was obsessive about owning all his work, outlived several valuable copyrights, including “Alexander’s Ragtime Band.” People were living longer than in the eighteenth century, and it seemed reasonable to protect an artist for the duration of his or her life. I’ve always thought that an ideal compromise would be a copyright of seventy-five years or the life of the author, whichever is longer. But in 1976, the law was amended to include the life of the author plus fifty years. Around that time, I participated in a discussion sponsored by ASCAP and naively began to point out ways in which this was injurious to songs, songwriters, and the public. The other panelists were as horrified as if I had championed organic farming at a McDonald’s board meeting. ASCAP was no longer in the business of protecting only its artists; it was now in thrall to their heirs—grandchildren!—and the publishing companies that monopolize the copyrights.
Twenty-two years later, incredibly, the Bono law extended the copyright another twenty years, which Justice Stephen Breyer, in a dissent from the Supreme Court’s ratification of Congress’s irresponsible law, described as tantamount to “perpetuity.” Let’s look at the numbers in terms of three of America’s fabled figures: Tom Sawyer, Jay Gatsby, and Holden Caulfield. Inevitably, some people reading this review have never read The Adventures of Tom Sawyer, but everyone knows Tom. He is as much a part of America’s self-portrait as Washington, Lincoln, and Elvis. Born in 1876, Tom was available to the public domain no later than 1932, twenty-two years after the death of Mark Twain. Already famous, Tom now became ubiquitous: countless editions of his adventures in every price range, from pulp paperbacks to expensive facsimiles, variously illustrated, annotated, and introduced, as well as abridgments for small children (my first encounter with him), anthologies, comics, movies, scholastic and professional plays, musicals and operas, paintings, parodies, and manufacturing logos based on the original illustrations. If the current copyright law existed at the turn of the past century, Tom would have been protected until 1980, seventy years after the author’s death, eighteen years after his only surviving daughter, Clara, had died at the age of eighty-eight, fourteen years after Mark Twain’s alcoholic grandchild and last descendant had died at fifty-five.
In contrast, Jay Gatsby was about to enter the commons when the Bono law instigated a rollback to cover works created as far back as 1923. He was, in fact, about to be installed in the Library of America’s second Fitzgerald volume, when Scribner claimed its monopoly. One of the ways in which industry benefits from the public domain is that it encourages old and new companies to compete in presenting classic works. The Great Gatsby is available only in editions authorized and priced by one publisher—eighty-five years after it was published, seventy years after the death of Fitzgerald, and twenty-four years after the death of his only child. The estate consists of grandchildren and great-grandchildren who have no more connection to Gatsby than you or I. The framers did not set out to protect such dynasties. Here is what the Fitzgerald estate and Scribner have done to their inherited masterpiece: It is available only in the version edited by Matthew J. Bruccoli, who decided that certain inaccurate geographic notes were inadvertent and needed correction. The only extant edition of Gatsby as Fitzgerald published it is in the Oxford World’s Classics series, which cannot be legally sold here (though you can buy the book from Amazon UK). Nor are there competitive editions, inspiring annotators, illustrators, and scholars; nor is anyone likely to create a work that expands on its characters, because if the project isn’t cashiered from the outset, it would have to be developed on speculation. It is one thing to proscribe a writer from poaching Holden, but hardly anyone is still living who can recall 1925. And can anyone doubt that, given the choice, Fitzgerald would have been delighted to get the complete Library of America treatment?
As for Holden, it’s a safe bet that few people reading this will still be alive when he enters the public domain, in 2080, unless his estate gives him his freedom. My sympathy with J. D. Salinger is absolute: He should not have had to witness the loss of his creation to filmmakers or other writers. A copyright protection of seventy-five years or the life of the author would protect The Catcher in the Rye until 2026, plenty of time for Salinger to fade gently into history, for his children to attain old age and his grandchildren middle age. Will we still care as much about Holden in 2080, 130 years after his debut? Why should his place in the commons be controlled by great-grandchildren as yet unborn?
The absurdity of the copyright extension increases the deeper we look into time. Holinshed died only thirty-six years before Shakespeare died, and the distance between the publication of his account of the Scottish regicide and the initial production of Macbeth was less than two decades. Holinshed’s estate could have stopped Will cold, exacting a price and a shared credit that very likely would have inclined him to turn his attention elsewhere. Surely, at this late date, Stephen Sondheim ought to have the same right to compose a musical about Gatsby, which is now more than a third as old as the Constitution that engendered limited copyright protection. Hyde devotes a passage to the familiar horrors unleashed by James Joyce’s malevolent seventy-eight-year-old grandson, Stephen James Joyce, who having no talent of his own has devoted his life and fortune to minimizing his grandfather’s place in the commons. When Ulysses is finally liberated, a great cheer will go up, and in no time at all we will have a more definitive text and competing annotated editions. The only annotated Ulysses at present is the Oxford World’s Classics paperback, which uses the now unprotected 1922 Sylvia Beach edition, and even that can’t be sold legally in the United States. (See previous reference to Amazon UK.) What kind of commons have we fortressed when a novelist could be sued several times over for writing a story in which Jake Barnes, Millicent Bloom, and Mickey Mouse indulge in a three-way at 7 Eccles Street, entangled on a bedsheet reproduction of Matisse’s Le Bonheur de vivre (photo provided), while George and Ira Gershwin’s greatest hits (lyrics provided) play on the radio.
The situation in music is even more deleterious than in literature. Record companies, which paid musicians 1930s work-for-hire fees (thirty-five dollars a side), claim a corporate monopoly extension of ninety-five years yet have virtually no interest in releasing thousands of classic recordings that are no longer considered sufficiently lucrative. Were these recordings available to the public domain, smaller companies might produce scholarly, inexpensive editions that would enhance the commons while expanding their own catalogues. And consider the catalogues of the great songwriters. Most of their songs were written for topical revues that are no longer producible; only the songs are immortal. In the 1950s, MGM, recognizing its ownership of valuable songs that were wasting away, commissioned hip young librettists like Adolph Green and Betty Comden to write new scripts, using all the MGM songs they wanted: They came up with Singin’ in the Rain and The Band Wagon. Imagine what young playwrights could do in the fields of Berlin, Porter, Gershwin, Rodgers and Hart, and others whose major songs are now between seventy and eighty-five years old. Instead, they are controlled by people who live off them like feudal lords, depriving the culture of a swath of American genius.
Hyde devotes a fascinating section to Bob Dylan’s memoir and his candid boasting of stealing songs, of finding his own personality in them, of using them to trigger original songs unlike anything else in music. Dylan is an ideal paradox for looking at the commons. He is one of the most unmistakably inventive talents of the past century, and yet he borrows freely and relentlessly. Hyde quotes a musicologist, Todd Harvey, who estimates that two-thirds of Dylan’s first seventy recorded songs have melodies “lifted directly from the Anglo- and African-American traditional repertory.” In today’s climate, could he get away with it? More important, would he instinctively feel the freedom to try? In contrast to Dylan’s achievement, Hyde explores the shenanigans of the Martin Luther King Jr. estate, which denies scholars the freedom to reprint the “I Have a Dream” speech—which, as Hyde details, is itself inspired by previous words—while licensing it for television commercials. The examples of the Joyce and King estates, trivializing the genius of their forbears, are so bizarre as to suggest something far more Oedipal than financial greed. But note: If the current copyright law had existed in the mid-nineteenth century, the Gettysburg Address would have been protected speech until 1935.
Gary Giddins has written about music for the New York Times, the New Yorker, and The Atlantic, among other publications. His most recent book is Warning Shadows: Home Alone with Classic Cinema (Norton, 2010), a collection of his essays about film.
