As promised in the last post, here is a very different look at the copyright incentive and the need to be thoughtful and cautious when we talk about copyright as an author’s right.
In the Autumn 2009 issue of The American Scholar, William J. Quirk writes an absolutely fascinating reflection on the finances of F. Scott Fitzgerald, whose tax returns and yearly financial ledgers were preserved and form the basis for Quirk’s essay called “Living on $500,000 a Year.”
The essay will be of interest to many people who are not obsessed with copyright issues, but one line struck my obsession very deeply. According to Quirk, when Fitzgerald died in 1940, “his estate was solvent but modest – around $35,000, mostly from an insurance policy. The tax appraisers considered the copyrights worthless.” Fitzgerald’s copyright, of course, were not worthless over time. As Quirk tells us elsewhere, the royalties from the sale of The Great Gatsby continue to generate about half a million dollars every year for the trust set up by Fitzgerald’s daughter Scottie to benefit her children.
This would seem to be one of the rare cases where the long term of copyright protection (Gatsby, published in 1925, will be protected until 2020) continues to benefit the descendants of the author. Usually, of course, copyrighted works have ceased to generate any income at all after only a few years, and those who inherit the rights generally neither know that they hold them nor get any benefit. Fitzgerald, however, arguably presents a strong, if unusual, case for long-lasting copyright protection. But when we look deeper, we see that the incentive that copyright is supposed to provide probably was overblown even in this case.
First, it is not very likely that the knowledge that his writings would make his grandchildren wealthy really played any part in Fitzgerald’s decision to write his novels. Indeed, Quirk’s essay tells the story of a man driven to work partly by the need to make money to keep a roof over his head from day to day (which is why he wrote short stories) and partly by the need to express himself (which is what he wrote his novels to do). The copyright incentive worked in the short term – it made it possible for Fitzgerald to sell his stories and novels for relatively healthy sums – but all of that incentive was immediate. The thought of riches two generations in the future was no part of what made Scott write.
Also, if the copyrights were considered worthless at his death, it is hard to see how Fitzgerald could have imagined profits for his grandchildren. Even in this case, the incentive argument for an average copyright term of 95 years rests on the absurd assumption that authors can predict future success in the face of present failure (or perhaps that they are even more deluded than the rest of us).
Even if the copyright incentive can work in some cases, of course, it must remain in the hands of the authors. If Fitzgerald had transferred his copyright to publishers, as is common practice today, there is little chance that his grandchildren would be enjoying all of that money, especially since there was a substantial period of time during which no one could anticipate the rebirth of interest in his books. Once again we come to the inescapable conclusion that the justification for strong copyright protection, which is the incentive it provides to authors, is only valid if copyright remains in the hands of those authors. To be effective at all, copyright must be, and remain, an author’s right.
While I don’t disagree at all with your analysis of the copyright incentive, I would like to point out another incentive that you’ve overlooked: the tax savings to Fitzgerald’s estate from a lowball appraisal. The IRS, as Quirk’s article notes, was at that time entirely dependent on information reported by the taxpayer. So although the income generated by the novels during Fitzgerald’s lifetime was modest in the greater scheme of things, “worthless” was probably a conscious stretching of the truth–after all, someone saw enough worth in the copyrights to renew them.