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the complete review - law

Authors in Court

by
Mark Rose

general information | review summaries | our review | links | about the author

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Our Assessment:

A- : fine study of evolution of modern concepts of authorship and copyright

See our review for fuller assessment.

  From the Reviews:

• "Only in the final case Mr. Rose discusses (...) does he get so bogged down in the legal complexities that the discussion is less crystalline than we have come to expect from this accomplished author. (...) It is apparent that even though the professor is not a lawyer, he is capable of writing with the precision associated with that profession. But he not only writes pointedly but wittily" - Martin Rubin, The Washington Times

Please note that these ratings solely represent the complete review's biased interpretation and subjective opinion of the actual reviews and do not claim to accurately reflect or represent the views of the reviewers. Similarly the illustrative quotes chosen here are merely those the complete review subjectively believes represent the tenor and judgment of the review as a whole. We acknowledge (and remind and warn you) that they may, in fact, be entirely unrepresentative of the actual reviews by any other measure.

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The complete review's Review:

       Rose's 'Scenes from the Theater of Copyright' are seven English and American legal cases dealing with issues of authorship and (broadly construed) copyright-protection, beginning with Daniel Defoe being pilloried, for seditious libel, in 1703. The 'authors' of the title are a varied lot, and they are not all writers: for Rose's purposes (and, indeed, those of copyright law) authorship extends to cover all kinds of intellectual property. Rose is not interested in straightforward and obvious plagiarism; instead, he considers the more complicated cases of (mis)appropriation.
       These are entertaining chapters about artistic control, as Authors in Court is both an enjoyable collection of scenes from literary and art history as well as a legal study. The intersection of art and commerce is significant in most of these cases, but they also touch on other issues, including privacy. And, as Rose suggests several times, the (personal) ideologies of the judges involved arguably play outsize (and subjective, rather than merely legal/reasoned) roles in determining outcomes.
       Two of the cases involve personal correspondence, the first from a time when the expansion of the postal service made letter-writing: "a significant literary form" again (as reflected also in the rise of epistolary novels, an early dominant form of the modern novel). Pope v. Curll (1741) is a fascinating one, as Alexander Pope sought to maintain control over the publication of his correspondence and to shape his public image via them (notoriously changing the originals to fit his purposes), manipulating the laws of the time -- and the useful counter-part, Curll, who had his own reasons for playing along. The more recent Salinger v. Random House (1987), in which J.D.Salinger sought to prevent Ian Hamilton quoting and paraphrasing from his letters in a biography of Salinger sees an author trying to control his public image in a very different way. Here, the letters were already publicly (if not easily) accessible -- Hamilton found them in various archives and libraries -- but had never been published, and one of Salinger's strongest legal arguments was that that the 'fair use'-exception (which generally would cover quotes of the sort and length Hamilton wanted to use in his biography) should not apply to unpublished material (a common law holdover, recognizing that: "the author had the right to control the first publication or to withhold a work from publication").
       As Rose notes, Salinger's concern was not primarily copyright, but rather privacy, and he suggests this may have influenced the final outcome of the case, the court sympathetic to Salinger's situation. As Rose notes, the case makes an interesting contrast to New Era v. Holt, in which the Church of Scientology's publishing arm sued over a biography of L.Ron Hubbard that also relied on unpublished material. The much less sympathetic Hubbard, shown in the biography to be even less sympathetic, nevertheless benefitted from the earlier Salinger decision (though an injunction was not granted, ultimately based on other reasons (they had waited too long to take any action)), leaving: "the question of fair use in unpublished material less than firmly settled" -- and Rose appropriately wonders whether settled law might not have settled rather differently if the Hubbard case had been decided before Salinger's.
       Burrow-Giles v. Sarony (1884) involves a famous photograph of Oscar Wilde, and the question of whether copyright protection extended to photographs -- was it art, or merely mechanical reproduction ? (As Rose notes, amusingly enough at the same time there were two state-level cases elsewhere where photographers were arguing they were "mechanics, not artists" (to get out of paying for the privilege).) Meanwhile, the recent Rogers v. Koons (1992) tackles the question of whether Jeff Koons' String of Puppies sculptures is an (illegal) appropriation of photographer Art Rogers' work, on which it is very obviously based -- is it simple appropriation (essentially: plagiarism), or a protected artistic transformation ? (In one of the delicious ironies of modern copyright law, Rose includes a picture of the original photograph but notes: "For reasons beyond my control, I am unable to print images of the Jeff Koons works at issue" .....)
       Stowe v. Thomas (1853) is an interesting chapter in the development of copyright law, as Harriet Beecher Stowe sought to control the rights to (in this case a German) translation of her Uncle Tom's Cabin. While without control over copyright abroad, the translation at issue was published in the US, and the question was whether the law protected Stowe's interest in the work, even as it was transformed in a foreign language. By this time, the concept of authorship, and of the protected work, had reached a stage where it seemed appropriate for the author to control the rights to translation as well -- but the law wasn't there yet, and Stowe lost her case. Not surprisingly, however, Congress soon revised copyright law to extend these protections.
       Authors in Court is both a valuable (and accessible) legal study -- covering the basics without bogging down in the technical -- as well as a useful introduction to questions of copyright and authorship, and how they have changed in recent centuries. Rose also does very well in presenting these seven cases for the human drama involved, as their different contexts informed and influenced the cases in a variety of ways; indeed, all seven are good 'stories', too. There's a great deal of information and background -- and some enjoyable titbits (such as that Salinger and Learned Hand were buddies) -- but it always serves a purpose in Rose's presentation: he's never merely heaping facts upon facts (even as there must have been temptation, given the often rich contexts here).
       Most of these cases will be familiar to those who have studied copyright law, but Rose's presentation and telling shows they can be well worth revisiting. For those largely unfamiliar with copyright case-law, Authors in Court makes a good introduction to some of the less obvious-seeming issues surrounding intellectual property. Without aiming for the biggest picture, Rose nevertheless addresses the evolving definition of authorship and the legal consequences arising out of this very well here.
       All in all -- and especially chapter by chapter -- a fascinating and very enjoyable read.

- M.A.Orthofer, 19 July 2016

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Links:

• Harvard University Press publicity page

• The Washington Times

• Faculty page

• See Index of Law-related books
• See Index of Books on Books and Publishing, and Bibliographies

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About the Author:

       Mark Rose teaches at the University of California, Santa Barbara. He was born in 1939.

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