Consumer Law

Paul Heald on the nonexistent tragedy of the intellectual commons

By Rebecca Tushnet

Paul J. Heald, Testing The Over- And Under-Exploitation Hypotheses: Bestselling Musical Compositions (1913-32) And Their Use In Cinema (1968-2007)

Excerpts (footnotes omitted):

Landes and Posner assert that the value of ?a novel or a movie or a comic book character or a piece of music or a painting? could be depleted in much the same way as ?unlimited drilling from a common pool of oil or gas would deplete the pool prematurely.? Others suggest that the value of ownerless works could be dissipated through excessive or inappropriate uses. Mark Lemley has noted that ?this justification for intellectual property depends on proof that there is in fact a tragedy of the commons for information.? Since proponents of the under- and overexploitation theories have not tested their hypotheses, the present study fills a significant gap in the literature.

. . . .

In Part I of the article, I explain the methodology of my study of popular musical compositions from 1913-32 as they appear in movies from 1968-2007. Studying musical compositions has several advantages. ? [T]racking the appearance of compositions in movies provides data on the exploitation of derivative works. Musical compositions appear in movies as works realized by someone other than the original author. In a movie we hear a recording of the composition, a derivative work under the Copyright Act. Since those worried about over-exploitation inevitably cite to unauthorized derivative works as their most serious potential concern, the study provides especially relevant data. In Part II, the results of the study are reported: Public domain songs are exploited at approximately the same rate as copyrighted songs, indicating that in this context worries of both over- and under-exploitation are misplaced.

Heald also specifically addresses what I call the ?Centerfold? problem?audiences who are harmed by alternative representations of their favorite characters:

Virtually every commentator who takes the possibility of debasement seriously points to unauthorized uses of fictional characters as their prime example, not to the making of unauthorized copies of books or songs. The entire debate seems to turn on the effect of having unauthorized porn movies starring Mickey Mouse or Superman. No commentators worried about unauthorized pornography seem aware of the vast amount of unauthorized ?inappropriate? works that have already been produced. A quick search of the Internet Adult Film Database (www.iafd.com) reveals six pornographic movies with ?Cinderella? in the title, including Cinderella in Chains and its two sequels, three with Snow White in the title, and a whopping 19 featuring Santa Claus. ?. Unauthorized porn fan fiction (?slash fiction?) also abounds, starring such characters as Harry Potter, Captain Kirk and Mr. Spock, and Starsky and Hutch.

I?m grateful to see a dose of realism about this so-called problem from another source, and pleased to see Heald refer to both newer and old-school slash, but sadly he?s made the rather common outsider slash = porn mistake. Not all slash is porn, and not all fanfiction porn is slash; there?s plenty of het out there too (I can provide recommendations).

Full post as published by 43(B)log on April 26, 2008 (boomark / email).