I miss Ayn Rand. Actually, I miss her voice in my new book. And I blame copyright law.
For the last year or so I have been working on a book that tries to respond to paralyzing partisanship in U.S. politics by finding something all Americans share. Unfortunately, there is no one American idea, no common American creed. But we do share both a collection of core texts “we the people” regard as authoritative, and a longstanding tradition of debating what these voices have to tell us about “America” and “Americans.” Whereas Catholics come together to participate in the Mass, Americans come together to argue about the speeches, songs, and sayings I refer to as “The American Bible.”
This canon includes founding documents such as the Declaration of Independence and the Constitution as well as songs such as “God Bless America” and presidential addresses by Jefferson, Lincoln, FDR, and JFK. It also includes novels, from Mark Twain’s Adventures of Huckleberry Finn to Rand’s Atlas Shrugged.
When I began the American Bible project, I had no idea what a nightmare the permissions would be. Happily, presidential speeches are in the public domain, as are publications from before the 1920s. But I was keen to explore not only the classics of American public life but also their “afterlives”—the commentaries that keep these “scriptures” alive by applying them to new circumstances. So I found myself, hat in hand, begging for the rights to reprint excerpts from hundreds of blogs, poems, op-ed pieces, and letters to the editor.
J.D. Salinger’s estate said no, of course. (Why did I even ask?) I had better luck with Alan Greenspan. Thanks to a friend at the Washington Post, I was able to track down the notoriously elusive former Federal Reserve Board chairman, who in 1957 came to the defense of Atlas Shrugged in a letter to the editor of the New York Times, and I received permission to run the entire letter.
Ayn Rand was trickier. Since her death in 1982, a cult of sorts has grown up around the memory of this Russian-born philosopher, novelist, and prophet of free thought and the free market. In fact, her estate safeguards her memory like the Soviets used to guard Lenin’s tomb. After a flurry of e-mail exchanges, Rand’s estate refused to allow me to run an Atlas Shrugged excerpt on the grounds that it didn’t want her words to appear alongside negative reviews. I told them that by my count the positive commentaries in my Rand chapter outnumbered the negative ones, but to no avail.
I hit a similar roadblock with the estate of Zora Neale Hurston. In 1955, this Harlem Renaissance novelist and folklorist wrote a letter to the editor of the Orlando Sentinel denouncing as “insulting” the Brown v. Board of Education decision that had just ruled “separate but equal” public schooling unconstitutional. I worried that her estate might find this 184-word letter embarrassing—who opposes desegregation nowadays?—but I hoped for the best. As it turned out, the estate did not refuse. Instead it quoted me a figure of $5,500—more than I earned on my first three books, and not even in the ballpark of my budget for this one.
When Noah Webster agitated for copyright law in the early 19th century, the bootlegging of books was even worse than the bootlegging of music in Napster days. Copyright law was intended to protect the livelihoods of writers by protecting their rights to be compensated for their creations. As an author, I applaud that goal.
While working on this project, however, I learned the hard way that many rights holders use copyright law not to get paid for their work but to control how that work is received. This has a chilling effect on the production of critical work—an odd outcome for a law intended to unleash the creative energies of Americans.
What to do? In my view we should extend the “fair use” provision already written into copyright law to cover situations where rights holders use their copyrights not to get paid for their writing but to control their reputations. Authors have a right to make a living off their work; they do not have the right to determine how it is interpreted. That job is up to “we the people,” and copyright law shouldn’t get in our way.
Stephen Prothero is a professor in the religion department at Boston University and the author of The American Bible: How Our Voices Divide, Unite, and Define a Nation.