The law of copyright is a modern innovation. Copyright protection was developed for an important reason — to enable creative people to earn a living by doing creative work. Before the law assumed its present form, authors and composers routinely saw their popular works pirated. Unless an artist was fortunate enough to have a wealthy patron, the artist’s income was precarious.
As valuable as this legal framework has been to thousands of artists, there’s a downside. Works that captivate the public (and also, for that matter, works that remain little-known) remain exclusively owned and controlled for a number of years by the owner of the copyright. During the term of the copyright, nobody else can make use of the materials in a creative work.
Here’s a neat example of why this is a bad thing. In 1562, a long-forgotten author named Arthur Brooke published an English translation, in verse, of an Italian love story. He called it “The Tragical History of Romeus and Juliet.” Only 30 years later, Shakespeare recast the story in a play, Romeo and Juliet. If modern copyright law had been in existence in England in the 16th century, we would not be able to enjoy that play today, because Shakespeare wouldn’t have written it. Just as likely, Brooke couldn’t have published his translation either, so Shakespeare would never have been inspired by it.
Technically, Shakespeare could have written the play — and then put it away in a drawer for 50 or 75 years, until Brooke’s copyright expired. But why would he have written it if he couldn’t publish it or have it performed?
Culture is not a private act. It’s a shared public experience, a shared human experience. Culture should not be kept locked away in tight little boxes that nobody is allowed to open unless they’ve checked out an authorized key from the Official Keeper of the Authorized Keys.
The law of copyright turns culture into a commodity. It turns the recipients and beneficiaries of culture (that is, all of us) into passive consumers. We’re allowed to enjoy the hallowed works of culture, but we’re not allowed to participate in them in any significant creative way.
Unless, of course, the copyright holder gives permission, either tacitly or overtly. The world of fanfic (fan fiction) is apparently quite healthy. People write their own Harry Potter stories, their own Star Wars and Star Trek stories. Some authors (such as J. K. Rowling) allow it. Others (such as George R. R. Martin) don’t. It’s up to the author — or, if the author has died or sold the rights, to the current owner of the copyright.
I’m sure most fanfic is dreadful, but that’s neither here nor there. The people who write fanfic are actively participating in their own culture, and that’s a wonderful thing.
Eventually, after the passage of years (and the law differs from one nation to another with respect to how many years have to pass) a copyrighted work passes into the public domain. When that happens, anybody can exercise their own creativity by freely adapting the material. Anybody can write Sherlock Holmes stories or Wizard of Oz stories, because those books are in the public domain.
To be more specific, the L. Frank Baum Oz books are in the public domain. Ruth Plumly Thompson’s Oz books aren’t, so you can use the Tin Woodman and the Cowardly Lion, but you can’t use any characters that Thompson created.
As that caveat suggests, you have to be careful. Want to write a sequel to The Maltese Falcon? It was published in 1930. The legal situation in the United States is murky, but many novels published since 1923 are still protected by copyright. You might have the makings of a terrific mystery starring Sam Spade rattling around in your head, but unless the copyright owner (whoever that happens to be) is feeling charitably disposed, you could be in for a world of hurt.
This is not how culture and creativity are supposed to work. I don’t have a solution to offer, but there is damn well a problem here.