Recently, novelist and attorney Scott Turow and other members of the Authors Guild wrote an op-ed piece for the New York Times called “Would the Bard Have Survived the Web?” in which the authors bemoan the prevalence of copyright infringement and piracy on the Internet. They warn of a dire future if copyright is not strictly protected:
Certainly there’s a place for free creative work online, but that cannot be the end of it. A rich culture demands contributions from authors and artists who devote thousands of hours to a work and a lifetime to their craft. Since the Enlightenment, Western societies have been lulled into a belief that progress is inevitable. It never has been. It’s the result of abiding by rules that were carefully constructed and practices that were begun by people living in the long shadow of the Dark Ages. We tamper with those rules at our peril.
Oh noes!!!1!!1 teh internets will send us hurtling back to the barbarity of the time before teh movable type printing press! I can’t imagine what relevance the early Middle Ages could have to the question of modern copyright law except to suggest an over-dramatic sense of Badness. Oh, and they also talk about Shakespeare for some reason. I say “for some reason” because, as the authors make clear, the first copyright law was enacted in 1709, almost 100 years after Shakespeare’s death. I don’t know, there’s something about the playhouses’ admission charge being a “paywall.” Plus, hey, Dark Ages=Bad; Shakespeare=Good.
The Turow piece has inspired a response from Kevin L. Smith, the Scholarly Communications Officer at Duke University. According to the Scholarly Communications Office, Smith is “both a librarian and an attorney experienced in copyright and technology law.” Smith says,
It seems a little bit unfair to critique these editorials because they are usually manifestly uninformed; several critiques of Turow have already appeared, and I don’t want to seem to be piling on.
Nevertheless…
…he does so. And I’m afraid I have to say, “A plague o’ both your houses!” On the one hand, I admit that my immediate reaction is “Oh, boo hoo, Scott Turow isn’t making enough money.” In addition, using a writer who made a nice living without modern copyright protection as an example of why authors need copyright protection is definitely a bit problematic. Also, they were rude about my beloved Middle Ages.
On the other hand, Smith actually strikes me as “manifestly uninformed” and perhaps a bit hard of reading. For one thing, he attributes the New York Time piece to Turow alone. In fact, Turow has two co-authors, Paul Aiken and James Shapiro. Shapiro is the Larry Miller Professor of English and Comparative Literature at Columbia University. Among Shapiro’s publications are the books Rival Playwrights : Marlowe, Jonson, Shakespeare; Shakespeare and the Jews; 1599: A Year in the Life of Shakespeare and Contested Will: Who Wrote Shakespeare? He is currently working on a book called The Year of Lear: Shakespeare in 1606. Granted, Turow is the best-known of the three authors, but under the circumstances, it seems borderline dishonest to ignore the contribution of so eminent a Shakespeare scholar. Who do you think knows more about Shakespeare, Smith or Shapiro?
Smith summarizes Turow, Aiken and Shapiro’s argument as follows:
The core of the argument is that Shakespeare and his contemporaries flourished because their work was rewarded financially, owing to the innovation of producing plays in an enclosed environment and sharing the income from theater admissions with the playwrights. Turow then analogizes this physical barrier to theater admission with the “cultural paywall” of copyright in order to argue that the Internet threat to copyright must be addressed with stronger laws.
This is a fair summary, as is Smith’s criticism of the analogy between theater admission and copyright. However, Smith goes on to say,
First, Shakespeare lived before there were any copyright laws in England….so his productivity is evidence that there are ways to support authorship other than with copyright. In truth, it was not so much his share of theater revenues that paid Shakespeare’s bills as it was patronage.
In the first place, it should be noted that Turow, Aiken and Shapiro themselves note that the first copyright law was not passed until well after Shakespeare’s time. Secondly, the assertion that “patronage” was Shakespeare’s main source of income is simply not true. The acting company to which Shakespeare belonged had a patron. It had to: according to the 1572 Act for the Punishment of Vagabonds and for the Relief of the Poor and Impotent, any acting troupe that lacked an aristocratic patron was regarded as a group of vagabonds. Shakespeare’s livelihood, however, did not depend primarily on the company’s patron; he made a good living from the company’s earnings and business deals.
We don’t really know if Shakespeare himself ever had a patron. He dedicated two poems to the Earl of Southampton (perhaps significantly, he produced these poems when the theaters were closed because of an outbreak of plague), but we don’t know whether or not Southampton actually was Shakespeare’s patron. Regardless, any money he may have received from Southampton for these two poems is trivial compared to the income he earned as actor, shareholder and principal playwright for the Lord Chamberlain’s/King’s Men.
Smith further argues that
The second reason Turow’s choice of a hero for his piece is unfortunate is that Shakespeare was, himself, a pirate (in Turow’s sense), basing most of his best known plays on materials that he borrowed from others and reworked. If Boccaccio, or Spenser, or Holinshed had held a copyright in the modern sense in their works, Shakespeare’s productions could have been stopped by the courts (as unauthorized derivative works).
While it is certainly true that Shakespeare’s plots are not original, Spenser and Boccaccio also borrowed material. Since none of them were affected by modern copyright law, it seems unfair to imagine what would happen if only Shakespeare were constrained by it. In addition, Boccaccio’s work would, I assume, have been out of copyright by the time Shakespeare was writing. Holinshed was writing non-fiction, so I don’t think he could have won a lawsuit against a playwright (think about what happened when the authors of the non-fictional Holy Blood, Holy Grail tried to sue novelist Dan Brown for plagiarism).
What I suppose I find most odd about both the Turow et al. piece and the Smith piece is that neither discusses the publication of Shakespeare’s works. We know there were pirated editions of Shakespeare’s plays printed in his lifetime; we also know that the acting companies, which owned the plays, weren’t too happy about such piracy. Shapiro discusses the publication process in Contested Will, so he knows all about it, and it seems more germane to the issue than the performance of those plays.
Shakespeare, what do you think of these two articles calling on you to defend two opposing positions?
That’s what I thought.
ES
Big shout out to Maria Walters, a.k.a. Masala Skeptic, of skepchick.org for pointing me toward the Smith article.
Skeptical Humanities 
“the non-fictional Holy Blood, Holy Grail”
Truly a phrase worthy of deep meditation.
True, but whether a book is classified as “fiction” or “non-fiction” has nothing to do with its accuracy (or honesty). It’s not a novel, and the authors seem to think, rather hilariously, that it’s a serious piece of investigative scholarship.
Actually the copyright issue and Shakespeare is also problematic with Shakespeare for another reason. Not just that Shakespeare took plots from older material but that Shakespeare and his felllow playwrights ripped off each other all the time, further it is my understanding that they frequently copied and took plot points from other plays by their fellow playwrights. For example it my understanding that before Shakespeare’s Henry Vth there were similar plays, which have not survived by other playwrights and from which Shakespeare may have ripped off plot elements.
As for the rest a little too much moaning.
Yes, the plots of plays got recycled. There are, for instance, references to a play called Hamlet as early as 1589, a good ten years before Shakespeare is thought to have written the play we know. Admittedly, some scholars have theorized that the Ur-Hamlet was an early version of the Shakespeare play. Others suggest that it was by Thomas Kyd (and of course there are other theories, as well). Of course, since the plots weren’t original anyway, I don’t know exactly how the playwrights would have been affected by copyright law if such a thing existed at the time.
Popular themes were reworked. Some older plays were updated. Ben Jonson got paid to write some new scenes for Kyd’s The Spanish Tragedy; Thomas Middleton seems to have made some additions/changes to Macbeth. And the plays continued to get modernized to suit the times. There’s a version of King Lear that ends happily, if I recall.
Poets and playwrights also sometimes borrowed a turn of phrase from other writers. You could call it an homage or parody or plagiarism.
Your reference to King Lear is exactly right. It is my understanding that after Shakespeare’s lifetime when King Lear was revived they used an “improved” version that had a happy ending for over a century and Shakespeare’s original version was not staged because it was too unhappy. So in the late 18th century some company when it revived King Lear and, god forbid, had Shakespeare’s actual ending so many people protested, including literary critics that it put off reviving the original until the early 19th century. You see Shakespeare’s actual ending was too “coarse”, “upsetting” in “bad taste” and “immoral”. In fact many people thought the happy ending improved the play?! All I can do is shake my heads at such a no-nothing literary atrocity. Oh and I’ve read this version of King Lear, the ending is a smarmy, sentimental maudlin and treacly mess. It is vile.
Unfortunately this desire to “improve” great plays by adding cliche, sentimental endings has not ended. Look at My Fair Lady a musical version of Pygmalion by Shaw. The makers of the musical decided that Shaw’s ending was just so inferior and that they could improve it by adding a treacly, stomach turning “happy” ending. Several movie versions of the play before the musical had the same “improved” “happy” endings. Ugh!!