Copyright and a Commons for Writers. A Novel Approach Applied Stupidly.


I wrote a novel and in that novel I decided to attack copyright by breaking it.

 You’ve no doubt spotted the problem, already.

 It took me five years and 152,000 words to get to where you are in one sentence.

 Think about that; because I certainly didn’t.

In posting the fine arts paintings on many of these posts, am I breaching copyright?

I haven’t got a clue. Probably. The internecine intricacies of copyright in the arts are terrifying and you need a mortgage to query an intellectual property lawyer.

I’ve written a creative manuscript; it’s not a novel, per se, per – shall we say – convention, it’s deliberately bastardised, however, for this purpose I’ll refer to it as a novel. Because I have good judgement on the novels of others, but none on my own (at all) – over the five years writing it in the spare time I could crib from work, swinging wildly between ‘yeah, yeah, that’s good’, to meltdowns of confidence so poignant they hurt – I’ve decided to pay manuscript assessor Stephen Stratford to read and answer me a simple question and a hard one: did he want to turn the page, and then, not so simply, is my dastardly clever ruse to attack copyright while trying to stay within New Zealand’s fair dealing exemptions dastardly clever enough. For the Americans, our (Commonwealth) fair dealing copyright exemptions are similar to your fair use, but less flexible. I suspect, even before sending my manuscript off, that Stephen’s answer will be a nice version of what sort of idiot are you, Mr Hubbard?. So I guess I have sent it only because I vaingloriously wanted to know from one member of the book community – a book community I have respect for – if any of the words I strung together, and the manner I strung them together, had merit, or were they, and my endeavour, as clumsy as ill-conceived. Five years is too much time to simply hit a delete button and extinguish it for all time.

My premise stated, let’s travel to the heart of (my) idiocy: copyright … why did I attack it?

No! Hang on, please note there may be the odd Objectivist pass this way looking to pass harsh judgement from my subject line, because Objectivism is harsh in applying Ms Rand’s judgements. That’s why I, for a long time, wouldn’t call myself an Objectivist; I’ve been growing softer edges as I age (well, a little – it might be the alcohol) and there are issues, such as copyright, I think need redress. Although, that said, note it’s consistent to say I support copyright and know intellectual property is property, and yet still write the below in regards to a draconian copyright that is an impediment to free, artistic expression. Probably the only place you’re going to get to read any of my novel is this blog, therefore, quoting it:

If you are a researcher, literary critic, or (even) journalist, y/our literary tradition/culture is available to you. You can publicly quote it, critique and ponder its meaning in your life out loud. The only group of individuals forcibly estranged from their Tradition/Culture, by modern copyright, including the ability to directly comment on same in their art – an author can’t quote an author in their manuscript without permission – are the artists, writers and creatives themselves, to whom that Tradition is most valuable. To whom that Tradition is a blood line. I bet it wasn’t artists, writers and creatives who created this particular solitary confinement to the tatty outskirts of the village called society. Imagine the furore if laws were made separating ethnicities from their cultures? Well why am I, as a writer, different?

I see artistic expression, which is free expression, as different to IP issues in commerce. Art needs a commons. It’s ludicrous to me that I can quote a novel in a review or literary criticism, with credit given, but not in a creative manuscript without the author’s permission. And let me say I’ve been through the permission process for such a quotation, once, on completion of my manuscript’s first draft, but never again. It took weeks to find the literary agent for the applicable (long) deceased writer’s estate; it took them weeks (months?) to send back their blanket-in-all-cases single sentence denial of permission – ironic given I know from the deceased writer’s essays he would have been appalled. Small wonder publishers aren’t interested in manuscripts where permissions are required.

[Of course, on the second draft of my manuscript I included that literary agent’s thoughtless sentence (on me), incorporating it into my novel… another story.]

Because I have a pattern of digging deep holes for myself, my novel further uses the symbolism of characters from two different authors’ works – both dead, but their combination of words still under the confinement of a 70 year copyright – to show how in the twenty first century one of those author’s heroes would have perversely been the victims in the other’s work – and that, I reckon, being a worthy comment on Western society circa 2017 – if you were to read it and learn who the authors are. But that – you reading it – will not be, (at least, I suspect as much – I’ll leave one ray of hope until I hear back from Stephen, but fair to say I’m keeping my expectations as low as both dead authors’ current residences; below ground level).

Because I have a pattern of digging deep holes for myself, my novel also built its world, ground up, by pastiche from my literary Tradition, in the same manner and for the same reason Mr Eliot did viewing The Wasteland he saw around him. To honour that Tradition, while suggesting  we are living in the ruins of a once Enlightened civilisation, from which wrong turns were taken with the best of intentions that have turned our minds into prisons for each other.

Because I have a pattern of digging deep holes for myself, you’ll have noted I wrote a novel saying something about the world I live, horror of horrors, with a message, while trying to break, to boot, not just copyright, but pretty much everything. And that is an unforgivable crime against the modern aesthetic since Proust and the Bloomsbury set, let alone the ethic, worshipped by the Publishing Channel. But that’s for another post, also, perhaps…

All of which returns me to idiocy. And, Art needs a commons for me to even enter Literature at the lowest rung: self-publishing.

Finally, this.  Artistic expression (and free speech) under New Zealand’s fair dealing provisions is further confined over the US, (again), but also our Commonwealth friends, by dint of parody in New Zealand having no statutory protection via exemption from the jail of our copyright strait jacket. Think about that. Every parody written here is a copyright infringement (because a parodist has to use a substantial amount of their target for the parody to be recognisable).

If I think about it, forget my haughty calling on Culture and Tradition: simply put, why can’t writers have a conversation – or, as good, a feud – through their works? Why side-line that to the musty, pedestrian tomes only read in fusty old ivory towers? How goddamned grey, repressive and autocratic. That’s a death for Art as the Meaningful.

In respect of the writerly arts, for me the answer to the restrictions of copyright are easy.

Copyright on a written work should only last the lifetime of the writer, so other writers can deal directly with the Creator (because it is impossible to negotiate Art with the professionals who run writers’ estates in a manner the beneficiaries can feast as long as possible on the corpse of the deceased. The Art is lost with them.) For those writers dealing artistically with contemporary life, a 70 year copyright may as well be eternity. [Note, with the TPPA now scuttled, I guess the American 70 year period won’t apply to us, but – and I can’t be bothered looking it up – I think it’s still 50 years or other equally pointless, arbitrary, figure.]

The writer should have the same licence and freedom with and within their Tradition as, at least, the literary critic and (for New Zealand) the parodist in every other jurisdiction. They should be allowed to quote without permission, and invoke a structural literary symbolism, so long as there is full attribution back to the original work (noting copyright is a different issue, entirely, to plagiarism). It’s rather strange they don’t, and this can only be the result of the suits who parasitically feed off and control Art by herding it within what has become a draconian state coercive copyright for their own ends. Let’s get the state sector, the lawyers and the accountants, out of the way of free expression in Art, and off the Commons. And that means the Copyright Council of New Zealand, also, which has no interest in creating a Commons for Art, or arguing the rights to parody, only using our modern copyright to close down an artist’s voice – albeit they’ll invoke alternative facts to convince you of the opposite.

Don’t get me wrong. Those who pirate an author’s works peer-to-peer on the nonsense legitimacy-of-pure-theft that is copying is not stealing (bullshit) are tautilogious scum. I’m not advocating their form of anarchy, anything but. The writer must have property in their work and thereby the means to profit by it. For this, however, Art doesn’t need the state copyright (because the state, and state patronage, is the death of Art); it only needs the pre-existing common law tort of damages, which is consistent with the free society that Art needs to Art. Damages, that is loss, against peer-to-peer stealing is obvious, actionable and worthy (nothing stopping artists forming Artists-Co to go after these criminals, especially given the state authorities are proven hopeless at it). However, it would be interesting watching the arguments of the estates of dead authors proving loss from me quoting with full attribution the benefactor they’re feeding off in a creative work. Mention of another author, via quotation or construct, is as likely to encourage interest in the work quoted or used symbolically or otherwise. Indeed, more likely to increase or reinvigorate the sales of that original work. Moreover, how does the lawyer argue for a loss from an income stream that would never have existed without the derivative work? A non-existent cash flow cannot be lost: it never existed until someone like yours truly comes along putting the Original into a further original context as a comment on the society their Art lives.

Although this all, now, becomes academic for yours truly.

I wrote a novel and in that novel I decided to attack copyright by breaking it, in the cause of a Commons and Free Expression.

You’ve no doubt spotted the problem, already.

It took me five years and 152,000 words complete with footnotes and bibliography to get to where you are on me merely writing I wrote a novel and in that novel I decided to attack copyright by breaking it.

Think about that; because I certainly didn’t. I am, you see, an Idiot.

So, to one of my favourite contemporary painters, not an idiot, Englishman Pete Rumney, who appeals to the child in us all … well, okay, me: the featured painting heading this post is called Windy Walkies Dog Brolly Fun [as you can see by the watermark: copyrighted – that painting has just sold on Ebay, but if you follow the link there’s more paintings available, and they’re great. Now you tell me what Pete has lost by this post?]

I like this one…



8 thoughts on “Copyright and a Commons for Writers. A Novel Approach Applied Stupidly.

  1. First off let me state I enjoy reading irreverent comment and viewing graphic art.

    I believe the point you make is valid and suggest the author of the painting loses nothing by its inclusion in you article. Of course It changes when you attempt to profit financially from its inclusion in your work.

    The argument could be put by the painter, that in his opinion, the subject matter of your work, does not compliment his work in a way which he wants his work portrayed.

    Because you are writing a novel, why not create fictional characters, be they writers, painters, musicians to illustrate you point? Create famous people for the sake of your own art and cut out the middle man.

    Liked by 1 person

    1. Thanks for your reply Mark.

      Regarding your last point first. Yes I could simply create fictional characters, but the work loses so much because it’s their symbolism commenting on contemporary events that draw out the themes so well. Also, they’re characters in their own right, but not just characters from a single other author, rather composites of two other authors 🙂 An argument made in the novel – which gives its own defence – is because the characters are composites (and real people – there’s little boundary between fiction and real life) then it can’t be breaching copyright. This character can’t be so and so’s character, because it’s also the character of another work, but not that either, as they exist in face-to-face world. (As I said in my title: a novel approach applied stupidly).

      Regarding your point about not ‘complimenting’ the original author, I don’t think that applies (or it wouldn’t for me). I’m currently in a Facebook discussion (secret group I’m afraid) and I wrote this pertaining to your point:

      ‘Re aesthetics, I don’t see how a derivative work ‘waters down’ the original, with attribution: they are two different works. I see that more as a conversation between writers (which I would love to see).’

      I also reiterated my points re income made in the original post, as follows:

      ‘Re income stream, my thoughts on that were at the end of the post, namely, there can be no loss of income for the original author from an income stream that wouldn’t exist without the ‘derivative’ work. Indeed, the derivative work is far more likely to create reinvigorated interest in the original work. I can only see how the original author gains. (That’s why I would rather see tort of damages used than copyright.)

      [Note I’m not talking about peer-to-peer pirating (I made that plain: pirates should be sought out and prosecuted – although the state doesn’t do that well at all). Also, I’m not talking about plagiarism, which needs to be illegal and is quite different to the copyright issue.]’

      Again, thanks for commenting Mark! Easy to feel we’re all rambling around alone in here 🙂


    1. Thanks, colonialist (and for joining). You might be talking about (US) fair use; I’m stuck with fair dealing, and even with attribution, permission has to be held – which is rarely given, and publishers generally can’t be bothered with waiting for, they just pass you over. (And that’s plagiarism aside, which is a different topic.)

      All I want is for the novelist to have same ‘use’ as the literary critic, and I don’t see what’s so difficult about that, or what, possibly, the loss is to the original (they only gain as does literature by ‘the conversations’ that can be had in books.)

      Liked by 1 person

      1. Indeed. I wanted to use a section by e.e. cummings in the front matter of my latest fantasy. Fortunately that particular work is out of copyright. otherwise I would probably get a refusal or wait for ever for a response.

        Liked by 1 person

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