You’ll also recall that in my review of Wolter’s book I made reference to Christopher Chabris’s criticism of Malcolm Gladwell’s work. I would be remiss if I did not mention that Gladwell published a rebuttal in Slate in which he defends his work. I would be more impressed if Gladwell did not address claims that he engages in logical fallacies by writing a lengthy ad hominem attack on Chabris and Chabris’ wife, which is itself a logical fallacy. Gladwell claims that he is a storyteller and that we should be thankful that he is weaving social science research into digestible narratives, and he again relies on yet another logical fallacy, the argumentum ad populum, to claim that a majority of non-elite readers like his books, so he must be right: “The kinds of people who read books in America seem to have no problem with my writing. But I am clearly a bee in the bonnet of some of the kinds of people who review books in America.”
He also responds to criticism that his work is irresponsible and oversimplified by, essentially, agreeing, but saying that since he is just telling a story, that’s OK since readers, he says, understand that stories aren’t “true” in the strictest sense: “They are perfectly aware of the strengths and weakness of the narrative form. They know what a story can and can’t do, and they understand that narratives sometimes begin in one place and end in another.” It would be touching if Gladwell really believed in an enlightened readership who recognize that his work is faulty and not “true” in a scientific sense, but we all know that isn’t the case. An entire industry has arisen to translate Malcolm Gladwell books into business consulting opportunities, and when Gladwell tells us that he can’t waste space acknowledging contradictory evidence or muddy his narrative with qualifications or doubts, he is, frankly, acting like a pseudoscientist. As a New Yorker journalist he knows damn well—and I speak here as a trained, degree-holding journalist—that acknowledging the messiness of real life is an essential part of the storytelling process, and it is a fundamental component of an honest appraisal of facts.
Lastly, in my review of Wolter’s book I made occasional reference to copyright and ability to quote from a copyrighted work for the purpose of comment or criticism (fair use). U.S. law is terribly restrictive on this point, though there is no fixed formula for determining how much quoted material constitutes fair use. I, therefore, erred as much on the side of caution as possible, limiting my quotations to a scant few lines, in order to forestall lawsuits. (Copyright does not cover ideas, only their exact expression, so if I so desired, I could have rewritten every claim in the book in different words and then sold them to you as “original” work.)
I thought it worthwhile to link to this essay from yesterday’s Slate Book Review, which discusses the devastating way copyright law has been used to suppress scholarly investigation and criticism of authors. In this case, the estate of Shel Silverstein wielded copyright as a cudgel to prevent scholar Joseph Thomas from using any excerpts of Silverstein’s work in a biography of Silverstein. This is a problem that I have experienced myself. In The Cult of Alien Gods I was not able to discuss songs or poems that featured Cthulhu-themed lines in the way I wanted because to use even a couplet required permission from the rights holder, and they, in turn, make a list of extortionate demands (while of course reserving the right to quote from my work for free) for controlling how the work is used, along with a bill that would easily exceed the profits of the entire book.
Similar issues arose with my Jason and the Argonauts book, the manuscript for which I have boxed up and mailed off to the publisher this week. Rights holders charge extortionate amounts of money for the use of a single photograph, which has more de facto protection under copyright law than an entire book. One museum, which I won’t name, “generously” offered to allow me to use a photograph of an Etruscan piece in their collection, but only if I paid them $500 for a thumb-sized version or thousands for a full-sized photograph. Technically, the work is out of copyright (by 2,500 years), but they control “access” to the item and thus ransom its image. I drew a picture of it because, among my talents, I am also a fairly decent pen-and-ink artist, and the Museum cannot control a drawing.
Photo archives like PhotoFest go a step further: They provide “access” to photographs for a fee in the hundreds or thousands of dollars, and then the fine print tells you that you also have to contact the rights holder, secure permission to use the photo from them, and pay them another fee of hundreds or thousands of dollars.
But a book, by contrast, can be rewritten and resold, and hundreds of words can be copied and used without permission or payment.
It gets worse. In the U.S., under the terms of the 1909 copyright act and the 1976 revision, works published between 1923 and 1963 had to have their copyright formally renewed in order to stay in force. If a copyright wasn’t renewed, the work should fall into the public domain. However, the copyright law fails to specify a method for determining public domain status. Currently, it’s a guessing game based on whether you feel confident that the copyright renewal logs are accurate or, as rights holders often claim, whether they might have a “mistake” or “accidental” omission. The government helps with research at around $150 an hour, but even then it’s not definitive and an ex-rights holder can still go to a judge to litigate copyright status, at which point the question isn’t whether the work is public domain but whether the criminal—I mean, author—spent enough money researching its copyright status. There is no definitive way to determine whether a work published after 1923 has entered the public domain.
Ex-rights holders use this as a cudgel to keep control over public domain works. Many companies, including most major television networks and movie studios, continue to sell “permissions” to use publicity photos and other works for which they failed to renew the copyright. In one instance, I negotiated with a major network on behalf of a friend to get a major media company to waive $5,000 in licensing fees for some Depression-era material by the simple expedient of telling them that the publisher would only authorize payment upon receipt of proof of copyright, since anyone could claim to own a photograph and if they wanted to bill for it, they needed to demonstrate they owned it (not unlike those foreclosing on mortgages, actually). When they could not provide proof of ownership, they agreed “license” the images for free (mostly so no one else might discover this). But of course if they really pressed it, what could one do if they said no? Go to court and spend even more than the original fees?
Similarly, Columbia Pictures wants hundreds or even thousands (depending on final print size) to license a single still from Jason and the Argonauts. I went through every copyright renewal log in the government records and found no evidence that the promotional photographs (published under their own copyrights, and not actually depicting frames from the movie) had ever had their copyrights renewed. But would you be willing to risk going to court? My publisher agrees that it is fair use for a single still to illustrate a movie for purposes of comment or criticism.
I’ve even had people try to tell me I owed them money for using pre-1923 public domain material because they “owned” the original physical copies and demanded “access” fees. That’s why I maintain my own physical library of Victorian-era art books, a ready source of public domain art. Showing these vultures that I own the book from which the pictures come usually shuts them up.
In short, it’s all a big scam designed to give large corporations absolute control in perpetuity over pretty much every aspect of culture. This is the fault of the Walt Disney Corporation, whose lobbyists pushed through the 1998 Sonny Bono Copyright Extension Act to prevent Mickey Mouse cartoons from entering the public domain, and the Supreme Court, whose members ruled that the constitutional demand that copyrights be for a “limited” time referred to a geological time scale.