A detective story of shifting rationalizations.
In 1841, Graham’s Magazine published Edgar Allan Poe’s short story, “The Murders in the Rue Morgue,” and, in so doing, created the modern detective story genre.
The story was published at a pivotal moment for copyright: only a decade earlier, Congress passed the Copyright Act of 1831, extending US copyright to foreign authors for the first time in US history.
1841 was also the year that a Massachusetts court ruled Folsom v. Marsh, the first “fair use” case in US copyright history, finding that using someone else’s copyrighted work was fair when it served a public purpose and didn’t unduly burden the original rightsholder.
Poe’s story was eligible for 28 years of copyright from the moment he set the words down on paper, and moreover, Poe was entitled to renew that copyright for another 14 years at the end of the term (he didn’t get to exercise this privilege because he died a mere eight years after the publication of “Murders”).
But Poe’s incredible act of imagination — creating detective fiction itself — was not eligible for copyright. Anyone could write a story about a detective solving a mystery. Many did. They still do.
Why didn’t Poe get the right to control the mystery story? If you were a Martian peering down at the Earth through a telescope, you’d be hard pressed to explain why Poe should get 28 years of exclusive rights to his story, but not the genre the story created.
The answer lies in the historical context of copyright, and what that answer says about the idea of property itself is hugely important for understanding the stories we tell ourselves today — both the literary tales, and the social narratives that have the power to preserve or upend our status quo.
Copyright needs a story. By default, if someone creates something, the rest of us are moved to duplicate, repeat, share and build upon it. Think of how your first impulse on hearing a fantastic joke is to file it away so you can tell it to someone else. Think of how the first thing you want to do when a striking image shows up on your phone’s screen is show it to someone else. Think of how the songs that move you become lodged in your mind and sometimes escape from your lips without your ever having consciously decided to start singing them.
Convincing people to moderate or even suppress that impulse to replicate and build and share requires a tale — a tale of some greater good that will emerge from our collective decision to give up our intuitive sharing and re-use of moving creative works.
The copyright story has changed over the years, but at each turn, we’ve justified copyright with one of two stories:
- Copyright will give us more and better art. If only we acknowledge some exclusive rights for creators, they will be incentivized to make more of the things we love. If there aren’t enough exclusive rights on offer, creators will become discouraged because too much of the value they create will be misappropriated by others (as when you get the laughs for someone else’s joke), and because the value that remains for their enjoyment can’t sustain them to keep creating (“If no one pays me for my paintings, I’ll have to spend more hours driving for Uber and then I won’t have time left to make more paintings”).
- Everyone deserves control over the things they make. You made it, it’s yours, and anyone who takes it from you is stealing, and stealing is wrong. This truth needs no evidence or argument, it is simply true. We are all angered when someone takes from us, and creators are no different.
Note that both of these can’t be true. If the only reason to respect copyright is to get better art, then the amount of respect should be enough to get better art —and not more. If giving creators more control results in less art, or worse art, then we shouldn’t give them that control.
Likewise: if copyright exists to incentivize creators, then a copyright system that produces more money for Spotify, UMG, Warner and Sony than it does for musicians is, by definition, a bad copyright.
Back to Poe: there was a pretty good case to be made that giving Poe control over the words he wrote would cause him to write more of those words.
Is the same true about giving Poe control over his ideas? Would making the detective story itself Poe’s property have given us better fiction? I think most fiction writers would recoil from this notion. Deep down, we all understand that remixing and borrowing and reworking tropes is key to creativity — that all fiction is made from other fiction.
As the science fiction pioneer Judith Merril wrote in her Hugo Award-winning memoir Better to Have Loved:
Whereas in other literary fields you wouldn’t dare take an idea from another writer and use it, because that would be considered plagiarism, science fiction people loved to build on each other’s stories. The business of giving away ideas and promoting other people’s work was a part of the community at large.
The Futurians [a New York commune of early sf writers, fans and editors] did this to an amazing extent. For example, every Futurian had a pen name that included the family name Conway. A good number of the stories that appeared in science fiction magazines at the time were written by someone-or-other Conway.
I think you’d be hard pressed to find a reader or a writer who’d say that the Poe estate should have the final say over who gets to tell a detective story. Would you trade away Elmore Leonard, Agatha Christie, Ngaio Marsh, Carl Hiaasen, John D. McDonald and (ahem) my next novel for the natural right of Edgar Allan Poe’s estate?
(If your answer is ‘yes,’ then please keep in mind that for bizarre reasons, Poe’s literary executor was his archenemy Rufus Wilmot Griswold, who used his control over Poe’s literary works to paint a picture of Poe as a depraved alcoholic monster.)
In my latest book, Chokepoint Capitalism, my coauthor Rebecca Giblin and I tell the story of the rise of sampling licenses. When hiphop began, producers and musicians took samples from existing recordings without permission or payment.
This practice came to an end thanks to a mix of court decisions and industry practice, with the result that the kind of sample-heavy hiphop that defined the genre at its zenith — records like Public Enemy’s It Takes a Nation of Millions to Hold Us Back and the Beastie Boys’ Paul’s Boutique — became impossible to produce legally. The entire sound of hiphop changed and the beloved art that millions had thrilled to was extinguished.
For most readers, this is evidence of copyright gone wrong. If you agree, then you are a “Type 1” copyright proponent — you believe that copyright should serve as an incentive in service to getting us all better art.
But there are a few people who pop up in my social media feeds to tell me that the elimination of sample-heavy hiphop is a just outcome. One argued that Paul’s Boutique was a house that was built out of “stolen bricks.” If we forced the Beastie Boys to stop stealing bricks and they could no longer build their houses, then justice is served — those houses never should have existed in the first place.
The problem with this “Type 2” copyright — a belief that one mustn’t take from others without permission — is that everyone takes from others to make their works.
The artists whose works were sampled by Public Enemy and the Beasties didn’t conceive of their genres out of whole cloth. Everything from chord progressions to licks to vocal styles to rhyme schemes were created by other people, often people whose names are known, not mysterious creators lost to the mists of time.
What’s more, every one of those creators also took from the people who came before them. Anyone who swears they’re not standing on the shoulders of giants isn’t a creative genius — they’re a con artist or a deluded fool.
Pursuing Type 2 copyright doesn’t give us more art, and it doesn’t give us justice for artists. Instead, it invites people to claim the right to prevent art from being made, by claiming that the building blocks of your work are their stolen bricks. Once we decide that taking someone else’s creative work without their permission is a crime, no matter the nature of the work or the taking, we transform art from a source of joy for millions to a source of millions for copyright lawyers.
The history of copyright is a fight between these two narratives: that copyright should serve as incentive or that copyright is a natural and inviolable property right.
But is property itself inviolable? It turns out that property, too, is driven by a narrative: a muddled collection of fables and aphorisms and equations that claim variously that:
- Property arises naturally out of the mixing of your labor with the stuff of nature;
- Property is good in and of itself, something we all “just know”;
- Property produces good, by giving rise to markets where the best and most efficient allocations of property take place.
These three arguments are also incompatible with one another. For example, to believe that property comes out of mixing your labor with “stuff that belongs to no one,” you have to ignore the inevitable, incontrovertible fact that the people who were using that stuff before you declared it to be your property viewed it as a commons, owned by no one but available to all.
That’s why the right-wing extremist and eugenicist Garrett Hardin invented the fictitious tale of the “tragedy of the commons”: his academic fraud was an attempt to patch a the vast hole in the “natural” theory of property. Yes, he argued, without property rights, we get commons, but these always collapse, so letting one person steal the commons from everyone else is actually a way to preserve it, by which everyone benefits. Hardin’s hoax was comprehensively rebutted by the Nobel-winning work of Elinor Ostrom.
Hardin’s work is part of a property theory that claims that it doesn’t really matter where property comes from, because markets will “efficiently allocate” property based on the free contracting of buyers and sellers. If a buffoon is given all the money at the start of the event, that fool and his money will soon be parted, and the money moved through the magic of the market to the hands of “efficient allocators” who will make better use of it.
This narrative serves a very important function in stabilizing our increasingly unequal society. If markets are uninterrogatable, inscrutable, perfect machines for allocating capital, then the fact that you were born poor, accumulated a six-figure student debt, and now face homelessness because Elon Musk laid you off is fair — as is the fact that Musk was born to wealthy parents, given every advantage, excused for every transgression (even the ones that led to maimings and deaths), and then handed enough capital to destroy your life.
The wealthy are very invested in the story of markets as perfect allocators, and not merely because this lets them feel good about their own power and privilege, but because it’s supposed to make all of us feel okay about it, too.
Rich people are forever in search of an equilibrium between the amount of money they have to spend on people with guns who keep us from building guillotines on their lawns, and the amount of money they have to spend on showy good works to achieve the same end.
Both amounts go down if we are convinced that they “deserve” to be rich — which means that we have to accept that we don’t deserve to be rich. It’s the divine right of kings in modern clothing: if Elon Musk gets to boss you around, it’s because a vast computer called “the economy” weighed the objective factors of his genius and yours and decided that you will do your best work as a mere pismire, while sits at the center of the ant colony and directs your labor.
Or throws you out of the nest.
For most of modern history, the super-rich instinctively kept to themselves. They may have flown to Davos or attended red carpet galas at the Met, but they didn’t claim to be superheroes or wise philosopher kings. They didn’t weep in public when asked to pay their taxes or compare themselves to Jews facing Nazi persecution or declare themselves to be reincarnated Roman emperors.
The rise of the noisy, very stupid billionaire is eroding the story of the deserving rich. It’s getting harder and harder to believe that these people are in charge of us because that will be best for everyone.
That story is collapsing. When it goes, all the rich will have to fall back on is the idea that they should have more than you because “taking stuff” is “unfair.”
If I were them, I’d be worried.