This is great. For a few months now, I've been intending to write up a post that highlights how much of Shakespeare's work would have run into copyright trouble today if he (or whoever wrote his stuff, for those who believe it was someone else) were faced with today's copyright laws and/or today's technologies. While I haven't found the time, Groklaw has stepped up and done it for me -- at least with regards to King Lear
, noting how unlikely it is that King Lear would be written today
under the same circumstances, since there would be numerous potential copyright claims:
If the current US Copyright Law had been in effect over Shakespeare, I think he could have been sued by many authors for copyright infringement for writing that masterpiece.
Count how many lawsuits there could have been just for King Lear alone:
Shakespeare's play is based on various accounts of the semi-legendary Celtic mythological figure Lear/Lir. Shakespeare's most important source is thought to be the second edition of The Chronicles of England, Scotlande, and Irelande by Raphael Holinshed, published in 1587. Holinshed himself found the story in the earlier Historia Regum Britanniae by Geoffrey of Monmouth, which was written in the 12th century. Edmund Spenser's The Faerie Queene, published 1590, also contains a character named Cordelia, who also dies from hanging, as in King Lear.
How many lawsuits do you see? At least a half dozen? I even see some methods and concepts claims, if we view it with modern copyright owner eyes. Remember J.K. Rowling's litigation over methods and concepts that Darl McBride and Chris Sontag cited? I suppose he could have raised a transformational fair use claim. But what if he accessed the prior works in digital format? Does fair use exist there? Or maybe they'd have been DRM'd. He'd maybe then never have read them.
Other possible sources are A Mirror for Magistrates (1574), by John Higgins; The Malcontent (1604), by John Marston; The London Prodigal (1605); Arcadia (1580-1590), by Sir Philip Sidney, from which Shakespeare took the main outline of the Gloucester subplot; Montaigne's Essays, which were translated into English by John Florio in 1603; An Historical Description of Iland of Britaine, by William Harrison; Remaines Concerning Britaine, by William Camden (1606); Albion's England, by William Warner, (1589); and A Declaration of egregious Popish Impostures, by Samuel Harsnett (1603), which provided some of the language used by Edgar while he feigns madness. King Lear is also a literary variant of a common fairy tale, in which a father rejects his youngest daughter for a statement of her love that does not please him.
The source of the subplot involving Gloucester, Edgar, and Edmund is a tale in Philip Sidney's Countess of Pembroke's Arcadia, with a blind Paphlagonian king and his two sons, Leonatus and Plexitrus.
Of course, what really would have happened is there never would have been a King Lear written. It would have been too legally risky. You can go to jail for copyright infringement, after all, even if you are noncommercial, if you distribute a DVD, and if we are imagining, let's imagine Shakespeare did that. Shakespeare wasn't even noncommercial. And there are criminal sanctions under regular Copyright Law, too.
If Shakespeare had plenty of money, he could have contacted all the copyright owners and paid them whatever they asked, but if he didn't have enough money, the result would have been he would have been unable to afford to write King Lear. Do we want a world where Shakespeare can only write King Lear if he has money? If you think I exaggerate, remember what happened to internet radio? And if one song is worth $80,000, is the sky not the limit, if you are a copyright owner and hold all the legal cards and can get Congress to keep upping the ante to suit you?
Incidentally, has anyone done a study to see how many songs in the history of the world earned $80,000 for their authors?
If King Lear had been written anyway, despite the odds, Shakespeare could have been sued for copyright infringement, one case after another, and his reputation would have been ruined, probably being branded a willful copyright infringer instead of an artistic genius, which he was, willfulness being assumed under the law, a rebuttable presumption, and he'd have likely faced damages equivalent to a lifetime of indentured servitude.
Indeed. This is a point that needs to be repeated again and again -- and yet for some reason, industry execs, politicians and even many in the press seem to buy (hook, line and proverbial sinker) the idea that copyright is somehow necessary for the creation of great works, and that such punishment is reasonable under the law. They'll claim that Shakespeare (or his modern equivalent) should simply write something different -- though ignoring how this would rid the world of King Lear
. Shakespeare didn't rely on copyright to earn a living. Copyright is one
form of enforcing a business model, but it is hardly the only one.