Like Mike, I noticed Jonathan Galassi’s op-ed in the New York Times on Sunday. Galassi — the president of Farrar, Straus & Giroux — argues that ebook publishers who republish print books are committing at least a moral wrong by appropriating the work of the print publisher, even if they have the permission of the copyright owner. Mike views this argument, I take it, as one more sign of the “IP apocalypse,” but I have a somewhat different take: I see in Galassi’s op-ed a fascinating old copyright chestnut that has basically (and I think correctly) gone against Galassi.
The argument goes like this: the naive view of authorship is that authors sit down at their typewriters and churn out complete copyrighted works. But not only is this view incomplete on the input end — as just about everyone recognizes, artists slurp inspiration from all over the place — it’s also incomplete on the output end. Once an author (or a director, or songwriter) finishes a work, all sorts of things happen to it before it reaches the public as a final product, sometimes altering the content of that work substantially. Artists often chafe under the rule of editors, always forcing them to trim out the good stuff, but you can often tell which authors have gotten powerful enough to throw off their editors’ yoke, and not usually in a good way. “Doorstopper” is the term that comes to mind.
Galassi’s argument focuses on the creative nature of all that post-author authorship. And there’s a hidden suggestion in his op-ed — shouldn’t the publisher have some sort of proprietary rights over all the stuff it adds? The ebook publishers can distribute William Styron’s unedited manuscripts if they like, but not the version Random House put out.
As Galassi puts it:
An e-book version of Mr. Styron’s “The Confessions of Nat Turner” will contain more than the author’s original words. It will also comprise Mr. Loomis’s editing, as well as all the labor of copy editing, designing and producing, not to mention marketing and sales, that went into making it a desirable candidate for e-book distribution. Mr. Styron’s books took the form they have, are what they are today, not only because of his remarkable genius but also, as he himself acknowledged, because of the dedicated work of those at Random House.
This raises an interesting theoretical issue for copyright law. Under copyright law, there can be joint authors in a work, who each hold a complete undivided interest in the copyright, just like tenants in common in real property law. But the 1976 Copyright Act does not define “joint authors.” Instead, it defines what a “joint work” is:
A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
Does this mean that everyone who contributes to a work of authorship is a joint author in the work that results? What about editors? Research assistants? Dramaturges? Snake wranglers?
An extreme example of the role editors can play in shaping the final work is Raymond Carver’s early short stories. It now appears that Carver’s famed “minimalist” style was mostly due to the ruthless cutting of his editor, Gordon Lish. (Times Literary Supp.; Boston Globe; Times.) Lish did more than simply take a red pen to Carver’s work, he radically altered the stories, as a side-by-side comparison shows. Is Lish a co-author of Carver’s stories?
The Second Circuit in Childress v. Taylor, authored by Judge Jon Newman, attempted to answer questions like this long ago. According to Judge Newman, the answer is basically “no.” Joint authors have to intend more than the text of the statute seems to require, Newman held; they need to intend to be “joint authors.” That’s “[w]hat distinguishes the writer-editor relationship and the writer-researcher relationship from the true joint author relationship.” And in many cases a good test for what the parties intended is how they described themselves. Lish was an editor, not an author, and so he’s not a “joint author.”
This strikes me as a sensible bright-line rule, at least for industries with some amount of tradition behind them. There are people who get described as authors, and other people who aren’t described as authors. If you’re in the latter camp, the Second Circuit seems to be saying, there’s a way you can still get copyright rights if you want them: you’re “free to bargain for an arrangement that will be recognized as a matter of both copyright and contract law.”
Back to Galassi and the Random House versions of Styron’s works. Random House is a publisher; publishers are not authors. If Random House wanted copyright rights, it should have bargained for them. (I should note, there’s a non-trivial argument that Random House did in fact bargain for them; the case is included in many copyright textbooks as an example of a somewhat unclear “all media” clause.) Although that response might in some circumstances ignore the practical realities of a working relationship, the publisher-author relationship hardly seems like one of them.
Cross-posted at Marquette University Law Faculty Blog
While I think the bright-line rule ignores reality a bit, I also think it works. That said, I think a fair takeaway from Galassi’s op-ed is that given the investment by publishers, ambiguous contracts made before the age of e-books should be interpreted in favor of the publisher – at the very least in the form of a right of first refusal. This may be a normatively debatable point on a number of fronts, but it’s surely not the sign of the apocalypse in my view.
I’m a bit less enthusiastic about the Aalmuhammed approach to authorship, though I’ll admit it (generally) works better for the “moguls” of copyright, hence creating more efficient markets from the standpoint of exploitation.
That’s why it’s sort of funny to think about about the relationship between Larson and publisher claims — it’s important to distinguish between the publisher and the editor.
Under work for hire rules, the editor’s authorship (and copyright control) is eclipsed in favor of the business entity that employs the editor. While I’m generally sympathetic to the authorship claims of disenfranchised “junior” authors (and freelance editors), I’m completely fine with requiring publishing houses — repeat players in the copyright and contract game –to deal with laws that are already skewed in their favor vis-a-vis authors.
Which, I think, is why Mike was referencing 1710. Re apocalypses, I don’t know, but I think the notion that the publisher needs to become more central to copyright does have significant tension with the changes made by the Statute of Anne.
Interesting! There’s more disagreement here than I would have thought. First, I just don’t see the op-ed the same way. Well, to be clear, I don’t think it gives rise to the same sort of IP arguments as Greg and Mike do–I think Galassi himself may have intended his op-ed for authors, not legislators: “it’s important for readers to keep in mind what it is that a publisher does for an author. . . . An e-book distributor is not a publisher . . . .”
But to the extent there’s an IP argument in there, I think it is thoroughly embedded in the author’s rights framework, and that Galassi is arguing that Random House should have some (ethical or other) right to the bits that it authored. I don’t see him as saying that Random House has control over the entire text just because it published it, which was the booksellers’ position. He notes specifically that the Random House editions “contain more than the author’s original words.” It seems almost to be a derivative work-type claim.
Second, and maybe this didn’t shine through in my post, but I just find that argument fascinating, even if ultimately wrongheaded. Why shouldn’t Gordon Lish be a co-author? I think in some cases there’s a suspicion of latecomers glomming on to a successful work, but you can stipulate an editor or someone else who has a huge role in creating a work ex ante. Are they joint authors? I mentioned industry tradition in the post but the 2nd Circuit’s answer seems to rely on social convention, of which industry traditions are just a part. It’s pretty interesting to have a legal result rely so heavily on social convention.
I’m happy to let everyone speculate about the “apocalyptic” metaphor in my post, but Greg is on the right path. Galassi sounds like a natural rights advocate in the era of Millar and Donaldson. Usually, it is the copyright left that’s accused of wanting to blow up the statute, but if I’m reading Galassi right, it’s the old (publishing) guard that would do the same here. If *no one* likes the statute, is that evidence that it is equally (un)fair to all? Or that it’s time for a new comprehensive revision?
It is at least interesting that no one here (including me) disagrees that the real issues here are legal, not moral or ethical: What does the relevant contract say and mean? And if the relevant contract is ambiguous (with Michael, the pro-publisher argument is non-trivial, but the Random House contracts in Rosetta Books weren’t, to my eyes, unclear), then what default copyright rule should apply (i.e., is the editor a “co-author”)?
It’s probably not fair to parse the op-ed with a fine-toothed lawyer’s comb, but you’re right (Bruce) that I read it as posing an “either/or,” rather than a “plus/and” issue.
On your first point, Bruce, I think that Galassi is arguing both claims: That the publisher has an ethical right to what it “authored,” and that — in effect — its “authorship,” which has a Lockean flavor or a “sweat of the brow” flavor or both, gives the publisher control, i.e., exclusive control, over the entire text. If the claim really were that the editor and the writer are “co-authors,” then doesn’t the writer have the power to authorize publication of the work by an ebook distributor (subject to an accounting)? I doubt that Galassi or Random House would sign on to that result.
Your second paragraph has two points.
On the first – why isn’t Gordon Lish a co-author? — I think that Lish is the exception who proves the rule: Lish’s involvement with Chandler’s work was so extraordinary that it may well have crossed the (conventional) line from editing into writing. Were Lish and Chandler joint authors? Or is what we read as “Chandler” really “Lish”? (See this earlier madisonian post, with links.)
On the second — the role of social conventions in law — I think that the Second Circuit’s reasoning is unusual only in its explicitness. This isn’t the place, and there isn’t the space, but I think that an enormous amount of copyright law — and law entirely — is based on social conventions. Of course, that claim is hardly original to me!
Right, so it would have to be a derivative works-type argument. Styron’s heirs can convey his original manuscript, but not all the edits, or so the argument would go. This gets added traction under the 1976 Act because publication is no longer the moment of magic, creation is, and you could argue that the draft Styron created is one work, then the edited manuscript is a DW. Perhaps intent and social convention is at work in the definition of DWs as well.
I think that you’re right.
Something else that bugs me here is whether and how what the editor does gets classified as a “work of authorship.” The standard approach asks: Is it (minimally) creative? (Assume that it is.) Is it fixed in a tangible medium? (Yes.) Then stop; there is a copyright interest, because we declare that this “fixed creativity” equals a “work of authorship.” The standard copyright approach rarely asks: Is it a finished thing? That is, is it a “work,” in addition to it being “creative” and “fixed”? Justin Hughes had a great paper about this a few years ago, in Fordham, and in the caselaw the issue pops up once in a while — some of the sampling cases, and the very interesting MassMoCA/Buchel case.
So I’m asking a question that I think should be asked, but that I know is rarely asked: Is an editor’s contribution a “work” in that “finished thing” sense?
The answer may be “yes,” because, as you note, the product of editing, at least in Gordon Lish’s instance, is a “derivative work.” I suspect (hope?), however, that applying this third standard would allow us to distinguish more effectively between the kinds of editorial revisions that do, in fact, result in “derivative works” because there is a new finished “work” (Lish) and the kinds that would not because the final product is creatively indistinguishable from the original manuscript (say, law review editors cite-checking of law review articles).
Oh, and belated kudos for the Murakami reference in the title.
Carver! 🙂
My bad.
I’m clearly late to the party (blame the beignets), but my take on Galassi’s op-ed was more along the lines of Michael’s comment above: that if this is a copyright/authorship argument, it’s clothed in a contract one. In other words, this is a debate about what the word “book” (or “work,” or whatever the key term is) means in the contract, and Galassi’s argument is that before Random House got involved, Styron’s effort was just a manuscript, not a book.
That’s certainly a plausible reading. IIRC, the exact language in the contract is that Random House had the right to publish Styron’s works “in book form,” but not other forms. Of course, I did the standard law professor thing and took Galassi’s op-ed as an excuse to talk about the things that interest *me*, viz. the non-“author” authors in Childress.
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