The lede is an indictment of all that is wrong with modern copyright law:
"Rod Stewart is being sued over the rights to an image of his own head."Seriously. We've gotten to the point where someone feels as though they actually own the concept of snapping a picture of someone else's head. Imagine all of the pictures that have been taken of the Eiffel Tower, or Big Ben, or Mount Rushmore, and the death of photography if we as a society were to allow such an idiotic concept to stand. Nevertheless, I fear that it completely plausible that our government and our courts have become exactly that stupid.
I encourage you to read The New Yorker piece. It's SO close to right, with a couple of minor flaws. Here's one:
"...if you are a natural-rights person and you think that individual rights are inalienable, then you don’t recognize the priority of the public domain. You think that society has no claim on works created by individuals. The right to control one’s own expressions, to sell them or not, to alter them or not, is not a political right. It’s a moral right, and it cannot be legislated away."No cigar. I am a "natural rights person", and my take on this is completely different. It's obvious to me that the Menand's understanding of the public domain is severely skewed by interpretations of modern copyright. It certainly does not jibe with the classical understanding of the public domain:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."That's the purpose of copyrights and patents according to the Constitution of the United States of America. Note the language. That "right" is not secure. It is not inalienable. It is granted by the government. In point of fact, you do have an inalienable natural right to those concepts contained in your brain, but if you want full and unfettered control of them, you should shut your mouth and keep them to yourself. Once you communicate them to another, they become the contents of the receiver's brain, and that person has the same natural rights as you. Those ideas that you have are built upon the input that you received from your senses, as much as from your imagination. When you communicate an idea, you have released it back into your environment, where others may build upon it in turn.
This just makes sense: Everyone has the same natural right to think, to observe the world around them, and to build on what they learn. There is no person anywhere on the face of the Earth who has any legitimate claim to any right to control the contents and workings of another person's brain. Think about how mind-bogglingly obvious that assertion is.
This is why copyright is not a "natural" right, but an artificial one imposed purely by law. It's not to protect your "right" to ownership of an expression of thought... in natural terms you have none. Rather, it's intended to get you to share in spite of everyone else's natural rights. Society has agreed to give you limited exclusivity in exchange for your sharing. And even 14 years is very generous; the only exclusivity you have by nature is in not sharing.
In short, the entire concept of "copyright" is a matter of appeasement to encourage you to contribute to public commons when you may otherwise be inclined to be a tight-lipped, close-mouthed, and generally non-communicative miserly oxygen-sink. Of course, it's your right to be those things. You can keep inventions to yourself (we call them "trade secrets" and protect them by law), and you can keep your writings to yourself. You have the unassailable right to hide your light under a bushel. But it benefits society to have you contribute to the public discourse, in that it enriches our intellectual environment and feeds our creativity. It benefits our natural right to create and build in a responsive fashion.
And it's a great deal for you. Copyright is in direct opposition to freedom of expression, which is a natural right. The citizenry have agreed to subordinate their natural rights in order to encourage you, dear Author, to contribute something. And it's only fair that this generosity have limits, lest you abuse it. And abuse it you have. Copyright has been extended from 14 years to 28, to 70, to 95 years after death to 125 years, depending on the nature of the work. And still there are those who think it's not long enough, or comprehensive enough. For all practical purposes it is now unlimited, and society suffers to the point where it's seriously argued in a court of law that Rod Stewart must pay someone to use the image of his own head. And worse... that argument is seriously heard and considered.
Copyright has been repeatedly abused and twisted until people who generally have their hearts in the right place have their heads screwed on backwards, like poor old Menand up there. He's sadly accepted the fallacy that you somehow have a "natural right" to control the public discourse from the time that you injected a statement into it. Preposterous!
It has been said, with justification, that if you repeat a lie often enough, people will believe it, and you will even come to believe it yourself. And the misstated purpose of copyright is a lie that has been repeated oh, so many times. Our currently broken system is the result.
When the law ceases to provide for the public good, the public will either change the law or find ways to work around it so that the public good is satisfied. The time has come. Thus we the Public have invented the Creative Commons. Free software, free artwork, free music, free literature, made free not by the ridiculous laws that constrain a work by default and trample natural rights; but by the express wishes of citizen-creators who truly understand how the commons work and should work. Free, not in the sense of price, as should and do get paid, but free in the sense of liberty.
I encourage you to not only contribute to the Creative Commons; but to preferentially use creative commons-licensed works, and contribute financially to their creators when some means for payment exists.