Mudcat Café message #159936 The Mudcat Café TM
Thread #16566   Message #159936
Posted By: Okiemockbird
08-Jan-00 - 11:53 AM
Thread Name: 'Should auld copyrights be forgot ?'
Subject: RE: BS: 'Should auld copyrights be forgot ?'
Chet W., your painter analogy didn't "fall flat". We simply failed to communicate.

I make no distinction, for copyright purposes, between making music and making a painting; the law as it now stands operates on works of both types. The effect of the law, as I read it, is to create a legal distinction between two components of a created work:

(1) The tangible implementation--in the case of a painting, canvas and paint.

(2) The intangible work-in-itself--In the case of a painting this is the intangible picture, which can be thought of as existing in an abstract space perceptible to the human mind.

The copyright law (as usual, this is private opinion, not legal advice, does not establish a lawyer-client relationship, etc., etc.) further resolves component (2) into two sub-components:

(2.1) Uncopyrightable elements

(2.2) Copyrightable elements

Finally, the law creates a copyright, a set of temporary monopoly privileges over certain uses of component (2.2). Component (2.1) is made immediately "as free as the air to common use" (Justice Brandeis's phrase), and component (2.2) becomes free to all after the expiration of the temporary monopoly privileges. But what is free to all after the expiration of the copyright is the intangible component, the work-in-itself. Ordinarily this freedom to use component (2) doesn't give anyone any rights over component (1), a tangible chattel incorporating component (2). The same applies to a song or poem or novel. If the song is in the public domain we are free to print it or perform it or modify it in any way we choose--complete creative freedom! But public domain status doesn't entitle us to steal from anyone a tangible book containing the song. Public domain status of artistic expression is therefore perfectly compatible with the idea that our houses and goods should be secure from intrusion and unwanted alienation. When you put the question, "should we be able to enter [painters'] studios and snatch what we want ?" I understood you to be suggesting that public domain is somehow incompatible with tangible private property. Was this the point you were trying to make, or did I misunderstand ?

T.