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The virtuous medlar circle
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    In the rabbit hole
a monthly column by A.C.E. Bauer

June 2006
 
 
Copyright Wonít Give You An Hourly Wage
 


In 1982, Feist Publications, a business that published regional telephone directories, decided to compile a directory for northwest Kansas ó a wide swath of land served by 11 different telephone companies. Each of those companies had a copyrighted telephone directory of its own, which had white pages with the names, towns and telephone numbers of each of its customers, in alphabetical order. Since the directories were distributed free of charge to the public, the companies financed the publications by selling listings to businesses for ads in the yellow pages.

Feist Publications approached all 11 telephone companies for permission to use the listings in each companyís white pages. All agreed, for a fee, except for one: Rural Telephone Service Company, which didnít want Feist to compete with its yellow page listings. Feist decided to go ahead and use the information in Rural Telephoneís directory anyway. It sifted through Ruralís white pages, removed some listings, added street addresses to others, and incorporated the bulk of Ruralís information into its directory.

Rural Telephone sued, claiming Feist had violated its copyright. It argued that it had done the work to compile the white pages listings, and under a doctrine called ďsweat of the brow,Ē it was entitled to prevent anyone from copying the listings it had created. If Feist wanted white pages, it should go door to door and gather the information on its own.

Rural Telephone won, first in federal district court, then in the federal court of appeals. Feist Publications appealed to the United States Supreme Court. It was in a tough spot.

Feist faced a doctrine many courts had adopted over the course of 70 years. Although facts and ideas are not copyrightable, compilations of the information can be. And a slew of courts had ruled that all it took was a little effort on the part of the person to compile the data to make that person an author, and to make the work protected under copyright. One often-cited decision, issued by a federal appeals court in Manhattan in 1922, put it this way:

The right to copyright a book upon which one has expended labor in its preparation does not depend upon whether the materials which he has collected consist or not of matters which are public juris [public domain], or anything more than industrious collection. The man who goes through the streets of a town and puts down the names of each of the inhabitants, with their occupation and street number acquires material of which he is the author.1

A book was granted protection because of the effort put into creating the compilation. Copyright became a kind of payment for labor done.

There were many flaws to this doctrine, not the least of which was that facts, data which by their nature could not be copyrighted, became copyrighted simply because someone had compiled them together. Another flaw, and the one most to my concern, was the assumption that copyright was a reward for someoneís labors. It isnít, either as a matter of fact or, as the Supreme Court would rule, as a matter of law.

First, facts. Writers are not compensated for the work they put into their writings. They are paid for the actual words on the page. Whether a writer takes two weeks to write a book or spends two years doing research and writing, the compensation is based on factors separate from the hours put in.2

A large number of magazines are fairly straightforward about this: you get a certain number of cents per word. For books, writers are paid an advance. If the book does well, the writer may see royalties ó a percentage of the sale of the book. But first the writer has to pay off the advance, i.e., the total royalties must equal the advance before any are forwarded to the writer.

For the vast majority of books, the advance is all writers see. A few authors sell enough books to pay off this advance and see some royalties. Some do better than that and start seeing a very small but steady income ó enough to pay for a vacation, maybe, or for the repair of an ailing furnace. A tiny number of these authors will actually make enough money to quit their day jobs. And then there are a handful who become rich.

Itís those rich guys, by the way, that make it possible for the publishers to keep on making all those advances that donít really pay off. On some level, the successful authors are helping to compensate the less successful ones.

Letís concentrate for a moment on one successful author, Octavia Butler, as an example. She was, by all accounts, a genius in her field. She won a MacArthur genius grant for it. Her contributions to literature were undeniable, and at the time of her untimely death, she had reached success in the pecuniary sense. But it is only thanks to that MacArthur grant that she was finally able to purchase a house, for the first time in her life. She had achieved success in the literary sense long ago but had not been particularly well compensated for it. She was paid her advance, even received royalties. Yet no one would have begrudged her more income from what she had accomplished. Why? Because of aesthetics. She had created brilliant work and deserved every penny she received, and then some. The work itself, the words she used, the presentation and creation deserved more. There was intrinsic value in her writing, separate from the number of hours of toil she put into it, and there is a sense that she should have been allowed to profit longer because the work was worth more than what she had received, so far.

This intrinsic value of a work, the aesthetics of the creation, is extraordinarily difficult to assess. Thatís because it is a subjective assessment of what a book is worth. A publisher, justifiably, needs something a little more solid to decide which works to invest in and which should be left by the wayside. And so it hires editors, folks knowledgeable (one would hope) in the field, who weigh how well a work is written, how fresh the ideas are presented, how compelling the story will be for a reader, how the market might react to this new piece of work. They have to answer the question, will it sell?

The answer to this question comes down to the work itself. Sometimes the name of the author. But ultimately, whatís put on those printed pages. And that is what a writer is paid for.

As a matter of law, that is also what copyright protects. The value lies in the book, not in the hours the author put in to write the work. The authorís reward for creating this object is control over the property.

At this point someone invariably starts jumping up and down and saying that these are ideas and ideas belong to everyone. Yeah. Sure. But what was written down, the way it was written down, the way everything was pulled together, the damned book isnít an idea. Itís a book. A whole unto itself. An object that I can throw across a room and brain someone with. And if you want to have your own copy to brain someone else with, then you have to get the authorís permission to make that copy.

You can also use a brick. And you can make a brick, the exact copy of mine, without getting anyoneís permission. Thatís because the brick is a rectangular piece of clay. The book, on the other hand, has words pulled together in a certain way that makes people think, maybe laugh, maybe cry, maybe makes them want to brain someone (the author, perhaps). And the way all those words are pulled together form an aesthetic, a subjective value for this object. Copyright protects this subjective value: the ideas as presented in the way the author devised them.

Now, as a society, we could decide that a book is like a piece of clay. You sell the one book, and then, thatís it, it belongs to the new person who can do as he or she pleases with it, including photocopying it, rebinding it and selling it to a million people. But three hundred years ago, we decided that books, as objects, are different than clay. They convey value beyond the binding and pages. The contents have meaning, and that is a value in itself. And the author, for creating this object with meaning, should be able to control the use of the object, and should be compensated for the distribution of further objects with this meaning. Copyright embodied this idea. The object, the book, is protected so that the author can benefit from this creation ó the author does not benefit from the toil in creating the book, but from the book itself. Itís not salaried work, but piecework, with the bonus that since we, as a society value books much more than clay, the author gets to control this piece for a set period of time.3

But what about Feist Publications? Didnít it steal from Rural Telephoneís white pages? It did, but the United States Supreme Court ruled that what they took were facts: the names, towns and telephone numbers of subscribers. Compilations may be protected under copyright, but Rural did nothing more than list the facts in alphabetical order ó nothing original happened here. And copyright protects original compilations, i.e. some thought or creativity needs to be put into the way the data is organized, and the copyright extends only to the organization of the data, not the data itself. As the Supreme Court explained:

This decision should not be construed as demeaning Ruralís efforts in compiling its directory, but rather as making clear that copyright rewards originality, not effort. As this Court noted more than a century ago, ďgreat praise may be due to the plaintiffs for their industry and enterprise in publishing this paper, yet the law does not contemplate their being rewarded in this way.Ē 4

You can work as hard as you want. But until youíve created something original, you donít get a copyright. And if you create something original in just one hour, then itís yours. You can copyright it. You can decide how to publish it, who can copy it when, and, if it has real intrinsic value, you may do well. It is what copyright gives you ó as a matter of fact and law.


1. Jewelerís Circular Publishing Co. v. Keystone Publishing, 281 F. 83, 88 (CA2 1922). 

2. An exception to this rule are writers who are employed on a salaried basis, or have a contract to complete a specific project, and whose writings belong to the organization that hired them.  But, tellingly, in these work for hire cases where writers are paid for the toil they put in, writers do not acquire a copyright in their works.

3. Over time, this copyright has extended to other objects ó photos, recordings, moving images, publications both physical and on the internet, and more.  But the idea remains:  the work and its attendant meaning must bear some tangible form, be ďfixedĒ for it to be copyrighted.

4. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 364 (1991), citing Baker v. Selden, 101 U.S. 99, 105 (1880).


 

A.C.E. Bauer has been telling and writing stories since childhood. She took a short break to write dreadful poetry in college, and then a longer one while she worked as an attorney, writing legal briefs and telling stories about her clients. She has returned to fiction, and now writes children's books and short stories for all ages. She was a finalist for the Tassy Walden Award: New Voices in Children's Literature in both 2001 and 2002.

One of her stories has appeared in Ladybug magazine, and a middle-grade, magical-realism novel is scheduled for publication in autumn 2007. Born and raised in Montreal, she spends most of the year in New England with her family, and much of the summer on a lake in Quebec.


In the Rabbit Hole began in December 2005
Archives:
How to ruin TV
Zealots
A love story
Breathing water and pine
"It's just a children's book"
Reconciling to the Impossible
 
 
Write to A.C.E. Bauer at
acebauer at gmail dot com






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"Copyright won't give you an hourly wage" copyright © June 2006 by A.C.E. Bauer.
This essay appears here with thanks to A.C.E. Bauer, whose payment was less than a brass razoo.
This is part of a series of invited pieces by people I find deliciously inspiring, always a hoot, and who write like a bletted medlar tastes. Ė A.T.
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