A non-rhetorical question to which I’ve not arrived at a really satisfactory answer: is there a certain amount of money that an artist can make, beyond which we’re entitled to say “This work ought to be free”?
I’m thinking about this as I read a decent article on the BBC’s website covering Larry Lessig’s new book, DJ Danger Mouse’s Grey Album, and the DVD of Peter Jackson’s Return of the King. The author of the article writes,
Both Prof Lessig and I can appreciate the difference between listening to the Grey Album and watching Return of the King.
Danger Mouse wants his music to be heard and is being stopped by a large corporation and its lawyers: his only route to an audience is through the web.
Peter Jackson wants to control the circulation of his films in order to recover the costs of making them and pay for more, and it is reasonable for him to do this.
Nowadays we tend to view copyright as a balance struck between the public’s right to have a rich public domain from which it can build other work, and artists’ rights to get paid for their work. This is why we tend to view EMI’s attacks on The Grey Album as offensive: the public loses an artistic work if EMI wins, and we’re not likely to get any more art out of The Beatles or Jay-Z.
The public also doesn’t seem terribly upset about denying The Beatles a few more million dollars. Paul McCartney is a billionaire, after all; denying him a bit more money wouldn’t hurt him all that much.
I think it’s safe to say that the public very strongly supports funding “starving artists,” but less so funding wealthy artists. Put another way: downloading the MP3s of wealthy artists, and not paying for those MP3s, doesn’t upset people all that much.
Is this ethically defensible? One good justification for the claim that an artist has “made enough money” once he’s passed some amount is just an extension of the traditional defense of copyright: past a certain amount of money, artists are unlikely to produce much more work. Put in economic terms, the artist’s marginal output is decreasing in the amount of money that he brings in.
Relatedly, the amount of money that an artist brings in is just as much of a legal construct as copyright is, and is in fact coextensive with copyright: if all work went immediately into the public domain, artists would make no money. (Assuming that people don’t pay for works in the public domain, which is a false assumption. But that’s a separate topic.) If copyrights were eternal, artists would make lots of money. It seems to me that the argument for copyright ultimately reduces to the argument that “you’ve made enough money; now give the work to the public.”
Or should the artist be able to make as much money as the public is willing to give him? Is that question even coherent? What “the public is willing to give him” is certainly bounded by what the law says the artist deserves; the public is willing to pay what it pays for Mickey Mouse merchandise because Disney still owns the copyright on it. There’s artificial scarcity in Disney products, backed up ultimately by the state’s use of violence. The public would presumably pay less for Mickey Mouse products if other companies could compete with Disney to produce such products. Hence the law decides for us what the price of Disney goods should be; it doesn’t even make sense, it seems to me, to ask what the public would be willing to pay for such goods if there were a totally free market. There isn’t such a market, and asking a counterfactual is kind of pointless.
If the price of a good subject to government regulation is viewed as a pure fiction — even more of a fiction than a free-market price — then it seems that there’s nothing wrong with saying “This artist has made enough money; now let the public have his work.” The government already does this in the form of copyrights. If you want to move to a pure free-market system in which the government doesn’t maintain artificial scarcity on goods, then fine. It seems likely, though, that the price the artist receives would actually drop; such is the traditional justification for copyrights and patents.
If the best approach for artists, then, is some copyright, it becomes a question of how best to strike the balance between the rights of the artist and the rights of the public. Returning, then, to the topic of Peter Jackson: is the BBC author’s claim that
Peter Jackson wants to control the circulation of his films in order to recover the costs of making them and pay for more, and it is reasonable for him to do this.
really true? If Peter Jackson’s legal right to protect his DVDs from “piracy” is viewed as a compromise meant to keep him producing films, then he should have a right to earn money from DVDs precisely up to the point that the money stops buying the public any more of Jackson’s art. It is not a priori true that Jackson deserves to control the distribution of his DVDs, any more than it’s a priori true that the public deserves the right to copy those DVDs without paying Jackson. The right to distribute DVDs for money is a legal fiction, which we can change whenever we want.