Posted 10:06 AM by Robert

Kitty Litter Is Not A Public Good

From time to time the Man Without Qualities sets his face against the considerable number of internet users who deem copyrighted material to somehow constitute a "public good" whose full value is suppressed by the nefarious property right. Sometimes the assertion is made that copyright depends on "market power" as the return and incentive for originality - and the argument is then spun that ordinary competitive neoclassical economics just doesn't apply. But the huge majority of copyrighted properties obviously possess no market power at all, and, to the extent there is market power it is derived from the originality and uniqueness of the author's work - which almost never confers more market power than the distinctive properties of, say, a given, well-positioned parcel of real estate. Indeed, the common law respected the notion that every parcel of real property was unique. Yes, an original and unusual copyrighted work is not fully interchangeable with other works, which therefore do not compete fully against them (hence the market power). But that is also true of any given parcel located in, say, midtown Manhattan. The value of that parcel is not all in the "scarcity rent." The peculiarity of the "market power" argument is even stranger given that some of the people making this argument (Professor Lessig, for example) seem particularly concerned with copyrights in materials - such as old photographs - so obscure that the copyright owner can't even be identified. Apparently, we are to take seriously the suggestion that a photograph of, say, a San Francisco street corner has "market power" sufficient to abrogate competitive analysis, but the actual real property located on that corner does not. I demur.

But perhaps the most peculiar argument offered up by the "common good" enemies of copyright is the assertion that use of copyrighted material doesn't degrade the value of the original. That assertion is not equivalent to the putative "public good" claim, but it's a step along the way. Here is yet another counterexample of that assertion from today's OpinionJournal:

Dr. Seuss the great author has become "Dr. Seuss" the commodity. ... All this is overseen by his widow, Audrey Geisel, who authorizes (or not) everything having to do with the author. It's a law of nature that books, plays and other cultural treasures will sooner or later be leveraged and adapted and made to yield multiple varieties of financial return. A corollary is that, without careful watch, travesty is the result, or kitsch, or the kind of distortion that does damage to the original itself.

A.J. Rowling famously negotiated ironclad agreements with Warner Bros. to make sure that her Harry Potter books made it to the screen in the right way. (What you saw was what you read.) The stewards of Beatrix Potter have kept a watchful eye, too, permitting animated versions of her stories that hew to the letter and spirit of her work.

The legacies of A.A. Milne and Rudyard Kipling have not been so lucky, however. Their literary greatness is unrecognizable in Disney's adaptations of "Winnie the Pooh" and "The Jungle Book." More grotesquely, Dr. Seuss, in movie form, has suffered the same fate. Hollywood cashed in as Mr. Carrey and Mr. Myers mugged and romped, earning each film about $250 million. (With its imminent video release, "Cat" is set to earn more.) But such success nearly wrecked the brand.

As a writer, Geisel was the heir of Lewis Carroll and Edward Lear. ... But if the literary Seuss is Edward Lear, the Hollywood Seuss is "Saturday Night Live"--adult-themed humor that gets its laughs by pushing the envelope and trading in adolescent versions of sex, violence and scatological humor. The characters themselves are slightly frightening, as if in the grip of dark impulses.

These blowsy, mega-hyped film adaptations transformed Dr. Seuss ....

But the spirit of his work and its genius--the wild invention, the meaningfully meaningless patter of the words, the quiet truths of the characters (however odd they may otherwise be), the subtle mix of their motives--lose their logic and force when, say, Rosie O'Donnell turns Dr. Seuss into a Broadway star-turn or when the Cat in the Hat becomes a theme-park goofball. A similar sort of travesty can be seen in the mounting pile of licensed tchotchkes--excuse me, merchandise: "One Fish Two Fish" switchplate covers, Horton trash cans, "Green Eggs and Ham Pinball," "Cat in the Hat-opoly," a board game fusing Dr. Seuss and Monopoly. ...

Never mind that "Cat" was based on a Geisel book. Since the movie's release, bookstores have been selling "The Cat in the Hat Movie"--not the original text but a Dr. Seuss novelization based on the film and written by another author.

"Brand" here is not limited to just the trademarks and goodwill involved. The value and public perceptions of the copyrighted original is at stake. For example, people are buying the degraded movie-ized books instead of the the originals. In this case the debasement of the copyrights is attributable to bad judgment on the part of a poor licensor. That's bound to happen sometimes - and does not contradict the rather obvious and correct observation that the value of the original is probably devalued by the "copies" and the uses to which they are allowed to be put. The complete abrogation of the Seuss copyrights would allow any user to use (and degrade) the property - and in that sense differs from the effects of poor licensing. But the evidence that the original is devalued by the copy remains.