Shakespeare. The name reverberates across English culture as the pinnacle of artistic expression, after perhaps Tina Fey. His stories are timeless and are immediately recognizable: Romeo & Juliet, Hamlet, Macbeth. Modern adaptations of his work are somewhat less recognizable, but have had significant impacts of their own: The Lion King, West Side Story, My Own Private Idaho, 10 Things I Hate About You, and Strange Brew are but a few examples.
In many ways, Shakespeare serves as a foundation for our English culture, and even our language. His works, being more than 400 years old, are freely available to anyone who wants to adapt them, and artists all over the world gleefully celebrate this fact.
A much less-known fact about Shakespeare is that the man, himself, was a masterful adapter of existing work. In fact, almost nothing he ever wrote was 100% original.
As a bit of a thought experiment, I have been wondering how successful Shakespeare would have been at getting his plays produced if the current Canadian Copyright Act applied to him (or whoever it was that was pretending to be him) during his lifetime. I wonder about this, because I truly believe that modern copyright law has become a horrifyingly mutated corruption of its original self.
First, then, here are a few terms of reference for those who are unfamiliar with the current Copyright Act in Canada. I’m using the laws of my own country for two reasons — first, the copyright debate is often overshadowed by the laws of the country whose culture dominates the world (America), and second, because the Canadian law doesn’t extend as long a term of protection; I want to give Uncle Bill Shakespeare as healthy a chance at surviving this experiment as I can. Currently, in Canada:
- plays are automatically considered copyrighted once they’re written (as are books, videos, music, and all manner of other forms of artistic expression)
- International treaties protect Canadian works from copyright violation in most other countries
- copyright remains in effect for the duration of the life of the creator, plus 50 years (in America, thanks largely to Disney, I believe this is now 70 years for individuals and 95 years for corporations; and once 95 years is up, Disney will ask Congress to have it extended again, and so on)
- under “fair dealing” provisions, certain uses of copyrighted material are exempted: news reporting, comment and criticism, and private study, for example
So. Applying these rules to some of Shakespeare’s most popular works — assuming Uncle Bill was not the sort to rush out and ask existing content owners permission to rewrite their stories — could they have been written today without fear of prosecution?
Let’s take a look at some of his most popular works, one at a time.
Hamlet
At first glance, the Danish play seems safe. Shakespeare based it on the Norse folk tale of Amleth, jotted down by a Danish historian in about 1200 AD. But hang on. The story was expanded by a French author, François de Belleforest in 1559, and M. Belleforest died in 1583. One version of Shakespeare’s Hamlet was entered in the Stationers’ Register as having been acted by the Lord Chamberlain’s Men in 1602. We may never know exactly which source served as Shakespeare’s primary inspiration, but it’s clear that the French version falls well within our copyright period, and Shakespeare clearly could have been sued for stealing it.
You may think this one is nebulous, but Disney stole most of their fairy tales from the Brothers Grimm. Try writing a new musical version of Snow White now, and see how far you get.
Copyright 1, Shakespeare 0.
Julius Caesar
This one, thankfully, is quite clear-cut. The story is absolutely unoriginal, but Shakespeare took it from Plutarch’s Lives of the Noble Grecians and Romans, written almost 1500 years before. We can cut the Bard a little slack on this one.
Copyright 1, Shakespeare 1.
Macbeth
The Scottish play falls into a broad category of stories that Shakespeare adapted from history as transcribed by a scholar, translator, and historian named Raphael Holinshed. Master Holinshed died in 1580, shortly after publishing his highly-influential Chronicles of England, Scotland, and Ireland 1n 1577. Shakespeare drew heavily from this work, using it as the primary source for all of his history plays. This would certainly represent a problem for Macbeth, which was likely first performed in 1606.
At this point, infringement is readily apparent. But there’s more: Shakespeare almost never drew from a single source.
Another work from which the Scottish King’s harrowing tale was derived is Andrew of Wyntoun’s poem, Orygynale Cronykil of Scotland [read that title as spelled, out loud, and you get an instand Scottish accent!]. We don’t really know when the Chronicle was first published, but Mr Wyntoun died in 1423. Technically, then, Shakespeare is safe from the lawyers of the Wyntoun estate, and this is a good thing, because the Chronicle is where he got the idea for the three weird sisters.
He also likely borrowed from another contemporary playwright named Matthew Gwinne, whose short play Tres sibyllae celebrated the prophecy of endless kings descended from Banquo. That play was presented to King James (who, FYI, also claimed to be descended from Banquo) in 1605, a year before Shakespeare’s Macbeth was confronted by his vision of an endless line of Banquo-based bosses. Whoops.
But perhaps there is a case to made for parody? After all, Macbeth was written in the aftermath of the infamous gunpowder plot, and contains numerous references to equivocation and treason. But most of that takes place in the Porter’s famous scene, and so I’m not sure that would hold up under “fair dealing” provisions.
Copyright 2, Shakespeare 1.
King Lear
There are several egregious disregards for copyright in the case of everyone’s favorite mad king, starting with Holinshed’s Chronicles. Most glaring is The True Chronicle History of King Leir and his Three Daughters, published in 1605 but written some fifteen years earlier and, as it would happen, acted in by Shakespeare himself. Thankfully, that play was written anonymously… or there’d surely be trouble. There is also Sir Philip Sidney’s Arcadia, though, which details the Lear subplot of Gloucester and his sons. Sidney wrote Arcadia in the 1570s and lived until 1586 — which definitely falls within our copyright guidelines. Whoops again.
Copyright 3, Shakespeare 1.
Romeo and Juliet
Arguably the best-known of Shakespeare’s plays — maybe due to the countless throngs of students who are driven to hate it by having it taught badly to them by English teachers in secondary school — Romeo and Juliet is hard to accept as a work that didn’t spring directly from Shakespeare’s head, fully-formed, sometime around 1595.
One early record of a story of star-crossed lovers dates to 1474’s Il novellino, written by Masuccio Salernitano. Shakespeare likely got his idea for the setting and the main characters’ names from Luigi de Porto’s Istoria novellamente ritrovata di due nobile amanti, whose sad tale of Romeo and Giulietta, set in Verona, dates to 1535. This story was adapted again in 1560, and appeared in English in William Painter’s Palace of Pleasure in 1566. Arthur Brooke published a poem in 1562 called The Tragical History of Romeus and Juliet (which also served as a source for Shakespeare’s Two Gentlemen of Verona — but we’ll let that one go). Shakespeare also pulled from Chaucer, and other sources.
Since several of these source documents were written perilously close to the date when Romeo and Juliet first appeared, we have to give this one to copyright, too.
Copyright 4, Shakespeare 1.
The History Plays
Well, at this point, we’ve set a bit of a precedent, haven’t we? And if we prosecute Shakespeare for Macbeth and Lear’s reliance on Holinshed, we also have to nail him for his other history plays. Thus, copyright law rules over ten more: King John, Richard II, Richard III, Henry IV Parts 1 and 2, Henry V, Henry VI Parts 1 through 3, and Henry VIII. Sorry, Uncle Bill.
Copyright 14, Shakespeare 1.
Crying ‘uncle’
So far, in our little thought experiment, we’ve covered a little less than half of the canon of work attributed to Shakespeare. I haven’t discussed As You Like It’s intense similarities to a play written only ten years earlier, the Merchant of Venice’s borrowing from Silvayn and Marlowe, or the characters for Midsummer Night’s Dream that were stolen from Robert Greene and Reginald Scott. It’s quite clear where this is all heading.
It is not “plot” that elevates the Bard to the universally luminary status he has attained. No; what makes Shakespeare’s version of Hamlet or Romeo & Juliet the one we remember is the way in which the story is told: the way William Shakespeare was inspired by what he saw around him, in his own time, and how he used that inspiration to reinterpret and reinvent those stories for his own time and for the benefit of those who have come after him.
The Statute of Anne, in 1709, established a 14-year copyright term for authors in attempt to balance the right of artists to profit from their work with the right of humanity to profit from artists’ work. Corporate interests have twisted that profit into a purely monetary model and, as a result, our culture suffers.
Personally, I think any artist should have the right, on their own terms, to define how they’d like their work used. Creative Commons licensing is terrific for exploring this idea. But I also think that artists do our culture a great service by setting their work free for other people (all people are artists if given the chance) to build upon it. Shakespeare himself, I suspect, would expect no less of those who came after him.
{ 14 comments… read them below or add one }
I couldn’t agree more with your conclusion that artists should have the right to define how they would like their work used, to “set their work free” either in whole or in part. But the ability to do so comes from having a strong copyright as its basis, so that the artist then has these rights to set free – this is not the idea one would get from your post leading up to your conclusion.
I think you also have some significant mistakes of copyright law in your argument. From what I can tell, Holinshed’s chronicles is an accounting of historical events (facts) and those cannot be copyright. Only the original creative work embodied in the chronicle can be. I’m sure that there is some original creative work in there, and given the importance given to this as a source for Shakespeare he probably did borrow from that original work, but he did so in an environment without copyright law and so his choices were made accordingly. If Shakespeare really is the creative genius, he certainly could have found ways around these limited restrictions.
Similarly, in your examples where there are earlier works and more recent works that Shakespeare drew upon, anything that is in the original work would be fair game – the fact that it was included in the more recent work does not make that part of the copyright of the new work. Your example of Snow White is flawed here – as effective as the Disney lawyers are, they could not stop you from using anything from the original work in your new musical. The problem is that anyone wanting a new musical would want to use elements from the Disney work that are not part of the original. (OK, I know there are issues with that particular title, but from what I understand they don’t relate to elements of the original fairy tale, but rather to ideas that were in other interpretations of the original fairy tale).
But the idea that artists should have the freedom to take their copyright and make it available for use in any way they choose to allow makes perfect sense.
I think you got the main point of the post, even though I went about it rather indirectly. The basis of the whole thought experiment is a little dubious, to be honest, and too difficult to map directly into a modern context. I thought of a bunch of “buts” as I was writing… but hey, it’s a blog post and not an academic essay, so I can have some fun.
I’m certainly not arguing that all copyright is evil; I think we absolutely need to protect creators. Balance of ownership and “the greater good” is key, and tricky, and for my money I’d say that Creative Commons licensing comes closest to the mark right now.
That said, the notion of Holinshed as “fact” is certainly not solid; much of it was based on aural and folk history — it was based largely on [tall] tales by Geoffrey of Monmouth — and even within Shakespeare’s lifetime massive tracts of the work were discredited as inaccurate or fictional, and other more rigorous accounts of history were created.
Copyright law (of sorts) did exist in Shakespeare’s day, but ownership at that time was based on who printed the work first. It was for this reason, among others, that so many playwrights at that time never bothered putting their name on their work. They were paid up front by the theatre to write a piece, and then to have it performed; and then if a printing house got hold of it and printed copies of the script — with or without the author’s assistance or permission — the printing house received all of the proceeds from the sale of those copies. In preparing for my work in A Christmas Carol, I learned that even in 1843 English copyright didn’t extend to the theatre — so when Dickens published his novella in November of 1842, stage adaptations were created almost immediately; three months later there were three different versions in local theatres, and one year later there were an additional five. Dickens had no right to any of them.
With the Snow White example, I was VERY clumsily trying to get at notions of transformative use, which are trickier to define and dealt with much more comprehensively in work such as Brett Gaylor’s RIP: A Remix Manifesto, which I’d recommend to almost anyone. Your points on Disney are well-taken; I just can’t resist taking pot shots at the Mouse House because I know YOU’LL notice, DK. And there is no denying the fact that Disney’s lawyers have had a great deal of input into the current state of American copyright law, for better or for worse.
All that said, we agree on the bottom line, which is that we all win when creators get to decide for themselves how they’d like their work used (today’s legislation automatically decides for me as soon as I create my work, unless I explicitly state otherwise). I’d love to advocate for creating work and setting it free right away, as fine modern artists like Cory Doctorow and Nine Inch nails have been doing — with tremendous success.
Great post.
I like that fact that you pick Shakespeare for this discussion because the copyright concerns you raise neatly dovetail with the perennial question of whether or not he actually wrote all the plays himself.
The uniquely modern obsession with authorship is, I think, rooted in the historical development of copyright law.
For me, it’s an open question whether or not these laws were created to serve the needs of the artist or the people and companies who took control of the art.
Did you catch Eternal Hydra at Magnetic North? It deals with these kinds of issues with incredible finesse and intelligence.
It’s SO hard to talk about where Shakespeare’s plays come from without getting into issues of authorship. I will state, though, that in my view the fact that he “stole” so much from existing sources provides a compelling and convenient response for the accusation that “one person couldn’t have known so much about all the things Shakespeare wrote about in his plays”. Certainly, Shakespeare got a lot things [hilariously] wrong.
On top of that, theatre is collaborative. And on top of that, although I’m interested in discussions of who wrote Shakespeare, I find most of them moot: in the end, we have the plays. And it’s the work that counts.
In terms of the modern discussion of who copyright “serves”, I don’t think it’s quite so open: one doesn’t need to look for to see who’s most interested in making copyright laws more strict. It’s almost universally NOT the artists themselves.
Brilliant! –> RT @SterlingLynch @krisjoseph: New Blog Post: Taking #Shakespeare to court — http://bit.ly/lt5Pv #theatre
This comment was originally posted on Twitter
Great post, Kris, it’s excellent to knock these ideas around to try and get some sense of perspective.
Other people are blogging too! @sterlinglynch http://bit.ly/2250A4 and @krisjoseph http://bit.ly/lt5Pv I like blogs! #theatre #blogs
This comment was originally posted on Twitter
Very interesting, Kris, and *very* pertinent to me, what with all my shameless (and quite deliberately Shakespeare-inspired) adapting of existing works.
I think your premise of applying CCA principles to evaluate legality of Shakespeare’s use of source material may be missing a significant point:
I’ve always relied on public domain source material to ensure adaptations I create steer well clear of copyright infringement. Just in the last month, I’ve started contemplating another Shakespearean-style rip-off—er, make that “inspired by”—adaptation using clearly copyrighted material. Specifically, I want to create a new work that makes the connection between Ionesco’s Rhinoceros and the current Zombie craze. As a result, I’ve been digging around on what constitutes sufficient transformation of a source work to be clear of copyright restrictions, as I don’t want to be legally or financially under the thumb of Ionesco’s estate.
The Canadian Intellectual Property Office claims on their website that “plots or characters” are specifically NOT subject to copyright (http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr00506.html#no4). Reviewing the CCA itself, I see that restrictions regarding transformations of original work are focused on protecting against:
-translations
-performances
-change a non-dramatic work into a dramatic work or vice versa
-in the one instance of “adaptation” in reference to protected uses, 3 (e) states “adapt and publicly present the work as a cinematographic work”
As far as I can make out, the CCA does NOT extend copyright protection to creating a new work in the same form (e.g. a new play based on an existing one) which uses key elements such as plot, characters, etc. but which is clearly not the same work (whereas if you tried to change an existing work while passing it off as the same you could be violating the moral rights of the author to have the integrity of his work preserved EVEN IF you have copyright permission to use the work or hell even OWN the copyright, as per court case re the Christmas red ribbons the Eaton’s Centre in Toronto put on its famous sculpture of Canada geese). I’m still a little dubious where the line lies: surely extensive use of the same dialogue would make the “new” work not be “new”, but signs seem to point to consistently new dialogue sufficing to make the difference.
By this standard, I THINK most of Shakespeare’s would be safe in Canada by dint of being sufficiently different from the, yes, would-have-been-copyrighted-by-Canadian-Law source material he used.
By contrast, the U.S. 1976 revision to their Copyright Act extends a very broad coverage for copyright holders to control the right to create “derivative works”. While this covers much of the same “translation/transformation to a new medium” as the CCA, the “derivative work” definition extends much broader rights:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, OR ANY OTHER FORM IN WHICH A WORK MAY BE RECAST, TRANSFORMED OR ADAPTED. A work consisting of editorial revisions, annotations, elaborations, OR OTHER MODIFICATIONS WHICH, AS A WHOLE, REPRESENT AN ORIGINAL WORK OF AUTHORSHIP, is a “derivative work”.
The CCA does not contain the word “derivative” (it uses “derive” once in reference to the source of a photograph [as in, a negative or a plate]), and as noted only once uses “adapt” in reference to creating a movie from an existing work in another medium.
It seems, from my limited research so far, that characters and plot are understood to be encompassed by this broad American definition of “derivative work”. Shakespeare would be sore out of luck there. If he were making comedies based on tragedies, he could lean on U.S. “fair use” allowances for parodies. I see no such equivalent in Canadian legislation, presumably because parodies are in Canada sufficiently different, original works that they are already inherently free of copyright protections from the sources they parody, as are other new works based on original sources under copyright.
All this is IF my reading is right. Big IF.
And IF my reading is right, the CCA versus the American legislation represents a HUGE difference in the two countries’ laws, and the freedom accorded artists like me who would like to follow Shakespeare’s lead in drawing inspiration from the cultural sources around them to go about creating new works and thus adding to our cultural richness.
Then there’s other issues like whether Canada’s obligations from having signed on to international copyright conventions like Berne in fact extend greater protection than the CCA grants. Or whether other related rights legislation might cover instances not covered in the CCA (e.g. in the U.S. there are lawsuits via Unfair Competition law to preclude profiting from the use of material derived from someone else’s work, even if it is not a case of copyright infringement). So I have a fair bit more work to do before I can say that I’m safe to create my Rhinoceros-inspired new Zombie musical (oh yes, it’s to be a musical; and I’d like to go beyond Creative Commons licencing to get specific commercial use permissions from Jonathan Coulton for “Re: Your Brains” and maybe other songs, because I’m willing to deal with copyright permission issues with Jonathan Coulton but not with f(*&king Ionesco’s estate).
PLEASE PLEASE PLEASE anyone who can help to confirm, deny or refine my understanding of the nuances of copyright protection as regards “derivative” works, adaptations and “inspired by”-s, give me a shout before I get sued by Ionesco’s estate! david@ncf.ca
Wow — lots to chew on there, David, and you’re definitely in the realm of legal opinion. The little bit of digging I’ve done in the past few minutes suggests that these questions have generally been tested in the courts, even in places like the USA where “derivative work” and “transformativeness” are more clearly defined. Yech.
At the bottom line, what I find fascinating about your dilemma is that the very nature of it suppresses your expression. You’re caught up in questions of what is or is not allowed — questions which you and I cannot even answer — and those questions are now in the way of you going ahead and improving upon Ionesco with zombies. Who wins?
Lots of heady discussion on my latest blog post re: applying modern copyright law to Shakespeare. Check out: http://bit.ly/2C2PsC #copycon
This comment was originally posted on Twitter
The only point I would add to the excellent points made above is that much of the problem and lack of clarity with modern copyright law lays not so much in the laws themselves (not that they aren’t problematic) but with the inevitable power imbalance between the parties involved. You can allege the strangest interpretations of copyright law you like as long as you sue people too poor to defend themselves. Take the RIAA file-sharing lawsuits as an example. Many lawyers agreed that they had little chance of success, but the vast majority of people sued settled rather than fight it out in court.
As a copyright lawyer myself, I would argue that Shakespeare is likely in the clear for all of his plays because, while the ideas, basic plots and facts may have been borrowed, the actual text of the plays themselves is original. It’s the expression of the ideas that is protected, not the ideas themselves.
That being said, if DanishCorp, Inc., the Elizabethan multinational corporation (makers of fine products such as Hamlet™ brand grave digging services and the ever-popular Ophelia™ brand swimsuit) had decided to take a run at poor Will with a massive lawsuit alleging defamation, copyright infringement and/or trademark infringement and demanding an injunction against the play, huge amounts of damages and all of his profits, who could blame him for knuckling under? You may win in the end, but who wants to pay the legal bills in the meantime?
As you say, the problem now is what sort of chilling effect is this uncertainty having on artists and writers? What works aren’t being created or published because the author is afraid of getting sued?
For sure it’s frustrating, as you point out Kris, that my efforts (and far more importantly, those of countless other aspiring creators) have to be directed towards understanding copyright OR ELSE they must shy away from “inspired by” creation because of uncertainties or misconceptions surrounding it (e.g. taking the lead from more restrictive American law and not realizing what’s legally possible here in Canada).
And Bart, absolutely the “chill factor” is a very serious extension beyond the limits imposed by the law. As I say, the Canadian Intellectual Property Office makes it clear that in Canada plot & character are fair game, YET who’s to say Ionesco’s estate (or for someone else, Disney Corp. or whoever) won’t drum up an excuse to launch a suit in spite of this, which poor little individual creators have no resources to defend against.
I suppose the only compensating thought I can have is: what brilliant publicity would it be for ZOMBOCEROS (as I’d really like to call it if I had the courage to risk the suit) to generate a lawsuit against me. And really, what’s the financial risk? A Cease and Desist Order? Pay the value of the rights had I obtained them? (I’m reminded of Craig Walker’s decision to ignore a Stratford Festival lawyer’s letter threatening a suit if Theatre Kingston proceeded to use an image of Shakespeare owned by the Festival to publicize a Shakespearean production, on the basis that the attention gained would be much better for the company & production than any financial compensation they might be forced to pay.) But the fear of it being much more than that—hell, the fear that I’d actually have to resort to hiring lawyers alone, or that I’d have to pay Ionesco’s estate’s legal fees—quickly dismisses that fanciful thought.
Actually David, despite what I said earlier, you might be able to convince someone to take on your case pro bono for the very reasons you mention. Canadian copyright lawyers don’t get that many chances to cut their teeth on a juicy and public issue like defending a play called ZOMBOCEROS. My old senior partner would probably adore standing up to Ionesco’s estate over something like this, just on principal and for the publicity.
Bart: TOO FUNNY! Oh man, if I had pre-lined-up pro bono support for a potential suit, I would TOTALLY go ahead with ZOMBOCEROS, deliberately using that Ionescovian reference in the title, and possibly even bait the estate for publicity purposes by making good and sure they knew I was creating a new “inspired by” work. If you’re serious that your old senior partner might be in, let’s totally talk: david@ncf.ca.