An Interview with Professor Edward Samuels, New York Law School
Interviewer: Professor Michael Rustad
(from Bimonthly Review of Law Books (May/June 2001)
The Illustrated Story of Copyright by Edward Samuels, New York: St. Martin's Press, ISBN: 0-312-26176-4, $40 pp. 293.
Q. Professor Samuels, what was your intended audience for The Illustrated Story of Copyright? Do you think that the book is likely to be adopted in law school classes? What non-legal audiences may be interested?
A. When I started the book, I tried to keep in mind that it should be readable by my parents (around 80) and by my children (at the time in their teens). The "target" audience is people who work in or follow the entertainment industries-books, music, movies, computers, the Internet, the performing arts. I guess that's really supposed to be everybody.
I also put in lots of goodies that would be appreciated by copyright lawyers and teachers, like anecdotes and pictures from some of the cases. Sometimes a picture really is worth a thousand words. For example, I have a totally different take on the Peter Pan Fabrics, Alva Studios, and Sid and Marty Krofft cases after looking at the images of the works. And I believe that by putting the book together with a sense of the history and the politics of copyright, it provides insights that may not be available using other approaches that just focus upon the statute and the cases.
I don't know if the book is appropriate as an assigned text in a law school class. It's clearly too general to cover much of the territory by itself. But I expect that plenty of students will find the book helpful, and read it anyway. With all the recent developments, it's getting pretty hard to cover everything in a basic course. I'm going to try assigning sections from the book that explain some of the basic concepts that sometimes take a long time to cover in class-originality, substantial similarity, and fair use, for example-and free up my class time for the really technical stuff.
I think that the book might make an excellent coursebook in a non-law setting, like a business or arts school, or even high school, although it would probably work better if I can work with teachers from the other disciplines to develop targeted teaching materials. I'd be happy to hear from any teachers in those areas.
Q. Your book is a treasure trove of historical tidbits, photographs, and anecdotes about major cases, technologies and court decisions that have shaped copyright law. Tell us a little about what led you to write this remarkably entertaining book. How did you find the photographs on Tin Pan Alley, piano rolls, sixteenth century print shops, or Shanley's Restaurant?
I was especially interested in your anecdotes about early American music. I did not know, for example, that Francis Scott Key borrowed the Star Spangled Banner from an old English drinking song. How did you go about researching these fascinating anecdotes?
A. For several years now, I've been collecting books, particularly picture books, that show things related to the copyright industries or particular cases. My best sources are the used book sellers on the sidewalks of New York, the Strand used book store, and library sales. Whenever I found images I liked, I'd do the best I could to track down the originals, both to get the best images I could and to get permission where I thought it was necessary. Believe me, this wasn't an easy task. In general, the Internet was the greatest resource in tracking down cartoonists, photographers, and other copyright owners to get their permission. I don't know how I could have done this five years ago.
As I narrowed my search for particular types of images, I went to some of the major libraries, like the Library of Congress (for the printing press images), the New York Public Library for the Performing Arts (for the images from plays), and the New-York Historical Society (for the images of Shanley's Restaurant and Federal Hall). (As for the Federal Hall picture, you can imagine my delight in realizing that the first federal copyright law was passed when the capital of the country was in New York, and the center of government was Federal Hall, just about ten blocks away from New York Law School.) Only as a last resort did I go to the commercial services like Culver, Corbis, and Photofest, because I had to pay for images from those sources, even if the works themselves weren't copyrighted. (There's a whole story right there.) I also hired Clarence Thorne, a photographer, to take pictures of some of the items I acquired, and to go with me into the National Archives here in New York to get good pictures of exhibits that I wasn't otherwise able to check out (like the Peter Pan fabrics).
And toward the end, I discovered eBay, and bought some items I'd thought I would never be able to find (like the Elvis memorial poster or the infringing Seinfeld book).
Q. Tell our readers about the origins of the Star-Spangled Banner.
A. The anecdote about the Star-Spangled Banner is interesting. I was looking for something that would illustrate the paltry state of music writing in early American history, and I found several good books that documented how most of the popular songs were simply new words, frequently parodies, set to existing tunes, mainly British tunes. Francis Scott Key's work was originally just a poem, but it pretty quickly became associated with the tune that had been made popular by the Anacreontic Society. They sang the song to their patron saint, the Greek god Anacreon. I was a little bit nervous that some readers would think I was being disrespectful, so I checked several sources, and it turns out that it's hardly a secret that our national anthem is based on a drinking song. Even general encyclopedias say as much.
Q. How did you research your history of ASCAP? What are the deficiencies of the compulsory licensing scheme? You allude to the problem of royalties continuing needing to be updated for inflation. What are the other problems with a private enforcement scheme? Who sits on the copyright royalty tribunals?
A. Fortunately, the history of ASCAP has been well documented, including a comprehensive account written by Herman Finkelstein, for many years general counsel at ASCAP. Here's my big contribution: Herbert Jacoby, an attorney for whom I worked many years ago, had a beautiful picture of the ASCAP founders and officers-Victor Herbert, John Philip Sousa, Irving Berlin, and their attorney Nathan Burkan-headed off to Washington to testify against the Dill Bill, that would have established that radio stations didn't have to pay ASCAP royalties. I made a mental note that I would use that picture if I ever wanted to do a book like this.
ASCAP doesn't use a "compulsory license," but enters into voluntary licensing arrangements with organizations that publicly perform music. As the first organization collectively enforcing the rights of copyright owners, they pretty much became the model for all the later compulsory licenses. As a personal matter, I prefer such voluntary organizations to the "compulsory licensing" systems set up in the copyright statute to deal with sound recordings, cable, and other technologies, because I think that the voluntary arrangements allow for more flexibility to flow with the market. But it seems that every time a new technology comes along, for which we can't decide whether to provide for full copyright liability or an exemption, a compulsory license turns out to be a workable compromise. In some contexts, I can't think of any better system for balancing the interests of copyright owners and copyright users.
Q. One of your themes is that copyright law has a continuing vitality because it has successfully adapted to or accommodated new technologies. Do you have any predictions as to the impact of the Internet on copyright law? What do you see as the ways the Internet has already impacted copyright law? What further reforms do you anticipate are needed in the Copyright Act to accommodate the Internet?
A. Ah, the Internet. Of course there's been a tremendous impact on copyright, since it facilitates the copying, distributing, performing, and displaying of creative works, all of which are supposed to be the exclusive right of the copyright owner (to do or to license). But we've heard many times before that the tape recorder, the photocopier, the videorecorder were supposed to be the death of copyright, and yet the law adapted to the new settings. And I'm fairly confident that accommodations can be made to give reasonable protection to copyrighted works on the Internet.
To some extent, I don't have to predict. Congress has already given its answer in the form of the Digital Millennium Copyright Act. What that act provides is that, if copyright owners encode their works, on the Internet or elsewhere, then it's against the law to break the code to get access to or copy the works. I think it's going to take a while to see if the DMCA is a workable solution. It's extremely complicated, and replaces general principles with specific regulatory provisions that may be difficult to apply. Even Congress recognized that this was just a first try, and provided for regular reviews of many of the provisions of the act.
Q. Legal academics are troubled by the expanding scope of copyright protection. One law review article was entitled: "Honey We've Shrunk the Commons." Some commentators are troubled by developments such as Digital Millennium Copyright Act. Are critics of media moguls right in being concerned about the continual expansion of copyright?
A. If there are some academics who are worried about the expansion of rights, there are some, or at least I'm one, who is just as worried that the Internet and other technologies are eroding copyrights, and we need the expansion to balance the erosion. Some commentators are worried that the DMCA for the first time actually controls access to works, not only their copying. And I must admit, though I'm generally in favor of copyright, I'm not so sure the DMCA is the best solution here.
I think we've got one of those situations where there are really sound arguments on both sides. Yes, we need adequate protection of digital works, or else the creators of those works either will do everything they can to keep them from being available in digital form, or there just won't be money flowing through from the users to the creators of copyrighted works, and so the works won't get created. On the other hand, we don't want to choke off the promise of broad access to information on the Internet. I happen to believe that some of the basic principles of copyright-idea/expression, fair use, the tests of originality and substantial similarity-are pretty good at balancing the interests, and that these tests can guide us through the particular settings on the Internet. But if I had the answer on this one, I would patent my business model, set up a dot-com company, and make a fortune. I'm afraid there are no easy answers, but I'm confident that between the courts and the Congress, we'll find a reasonable balance.
One of the mantras on the Internet is that "Information Wants To Be Free." I counter that in my book with the claim that "Creativity Wants To Be Paid." The challenge of copyright law is, as it has been for 210 years, to balance the interests of the parties in making both of those statements true.
Q. Your chapter on the basics of copyright law addresses the continuous expansion in the copyright term. The Sonny Bono Copyright Term Extension Act (CTEA) is the latest expansion in the term of copyright. The CTEA extends the copyright term for individual and corporate entities by an additional twenty years. Critics have charged that the CTEA is an unwarranted extension of the Copyright term. Do you have an opinion about whether the continuous expansion of copyright terms is a desirable development?
A. I really don't have strong feelings about whether extending the term of copyright is really all that necessary. It does prove one point, however. Some of the academics who are more begrudging about copyright argue that copyright should be expanded only when it "promotes the arts and sciences" by encouraging new works. They opposed the term extension because, obviously, extending existing terms didn't encourage any new works. And yet Congress passed the law. That should prove that the limited economic rationale for copyright doesn't explain what has happened, in this or in many other contexts.
Q. Your Illustrated Story is an interesting blend of history and doctrine much in the tradition of scholars such as Benjamin Kaplan and Paul Goldstein. What are your favorite works on copyright law? What books do you assign in your copyright courses at New York Law School?
A. We're lucky in the field of copyright that most of the casebooks and treatises are excellent (although Goldstein's is clearly the standout treatise). Maybe that's because they're all more or less modeled after the groundbreaking Kaplan and Brown casebook from 1960. I currently use Gorman & Ginsburg, but have been happy with some of the other casebooks as well. I have always regretted the early passing of Alan Latman. While he didn't do a lot of writing, what he did write was excellent, and I believe his short treatise covered more, page for page, than many of the other treatments of copyright.
My models for the book actually came from outside the field of copyright. I'm impressed by certain popular writers who are able to convey very complicated information in a fun way-how David Macaulay explains technology, Larry Gonick history, Carl Sagan astronomy, James Burke scientific and technological connections. It's significant that two of the four are cartoonist/illustrators, and of course I was inspired by how their visual images make learning fun. Why had no one ever done anything like this in law? I also read everything out loud, in order to make sure it sounded conversational.
Q. Do you have an opinion on whether Congress needs to enact legislation to govern music on the Internet? (i.e. Napster and post-Napster technologies).
A. I hope that Congress doesn't have to act. As of this moment, the Ninth Circuit hasn't yet rendered its opinion. But when Napster announced its willingness to work with Bertelsmann to develop a system that would compensate copyright owners, that pretty much disposed of the case, didn't it? One of Napster's defenses had been that they couldn't track what music was copyrighted and what wasn't, and they've now pretty well conceded that they can. If you were a judge in the case, and at least some of the parties said that they thought they could settle the issue, would you be inclined to say to Napster, "Oh, never mind, you can have it all for free"? But of course, predicting the outcome of cases, especially Ninth Circuit cases, is difficult. If the courts ultimately find for the RIAA, then I suspect that we'll see voluntary licensing arrangements with Napster and similar systems. Only if that fails do I think that Congress should get involved, and maybe they will not be inclined to do so.
I am bothered by some of the writers who defend Napster by drawing inappropriate analogies. For example, we're told that Napster should be free because, after all, people can listen to the radio for free anyway. But of course, radio pays ASCAP licensing fees, and Napster doesn't. Or we're told that Napster is okay because Congress in the Audio Home Recording Act waived the right to sue for home recording. But of course downloading MP3 files doesn't carry with it the serial copy management system and the compulsory licensing fees that the AHRA envisioned. Or we're told that Napster is indistinguishable from the Sony case, while that's not at all true. In Sony, the Supreme Court said Sony would not be held liable for contributory infringement if there was some "substantial noninfringing use," which it's harder to find in the Napster situation. And in Sony, the Betamax users were only making copies of works they were already invited to view for free (since the money was being made from the advertisers), and that's not at all what's going on in the Napster setting.
Q. You discuss cases like Apple v. Franklin and weave the history of software copyrights. What is the future of software copyrights?
A. I think the tough issues have been worked out. Despite the early doubts, it's clear that computer programs are copyrightable, and the U.S. has been successful in convincing the rest of the world to adopt similar laws. The big question is the scope of protection, but I don't think the problems are all that different from the same problems for books and movies and other copyrighted works.
The troublesome area has now become the patent laws. While the first cases indicated that computer programs were not patentable, we've seen a spate of recent "business method" patents that I find quite questionable. There are lots of business methods for which there is no "prior art," largely because some of the methods are so obvious that no one bothered to write them down. I suspect that the courts will be doing some retrenching in this area, and, if they don't, Congress will.
Q. Why do you think that the United States has been so reticent to recognize moral rights followed by Berne country signatories?
A. It's said that the economically-based American copyright laws don't have the same sensitivity to moral rights as do the European laws. And yet, partly due to our finally joining Berne, and the general internationalization of copyright standards through the World Trade Organization and other treaties, our laws have come closer and closer together. I think we've probably overemphasized the significance of the theoretical differences. In any event, future copyright developments, particularly on the Internet, will require international solutions, so that any differences in philosophy should become less important.
Q. Where can our readers learn more about your book?
A. The only thing I'd like to add is that I welcome people to visit the website at www.nyls.edu/samuels/copyright. At the moment, the website is mainly about the book, but when I get a little time to work on it, I hope to develop the materials "beyond the book." I'm hoping that I can build up the site as a place where people can reliably find comments on recent and pending cases and links to related materials.
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