United States: Shakespeare And Copyright: 5 Things You Should Know

Last Updated: April 15 2016
Article by David A. Kluft

Last year, I made a terrible mistake. When I published Harry Potter Lawsuits and Where to Find Them on this blog, I pronounced that "Ms. Rowling and her works pop up in court more than any author since Charles Dickens." I missed someone big. Of course, it was William Shakespeare, who beats them all even when it comes to legal citations.

April 23, 2016 is the apogee of "Shakespeare400," a worldwide celebration of Shakespeare's life on the 400th anniversary of his death. We are joining in, and also making amends for the above-mentioned omission, by offering five things you should know about the intersection of Shakespeare and copyright law.

  1. Shakespeare was not incentivized by copyright protection

When London publishers and their lawyers were casting about for arguments to justify the perpetual printing monopolies that were the precursor to the 1710 Statute of Anne, they turned to Shakespeare. As discussed by Professor Liam O'Melinn in The Recording Industry v. James Madison, the publishers argued that copyright protection was not a recent invention by business interests, but an extension of the "timeless moral" right of an author to profit from his labor. And if not for this ancient right, the publishers argued, Shakespeare never would have bothered putting pen to paper.

Shakespeare's role as the poster-child for the copyright-incentivized author persisted right up to the 20th century. A 1959 Harvard Law Review article asserted that "progress is promoted by granting to Shakespeare the exclusive rights in Romeo and Juliet." But as Professor O'Melinn put it, this "is an odd thing to say about a play that did not enjoy copyright protection, that Shakespeare himself never put into book form, and that was copied and printed shortly after his death without payment to his estate."  Therefore, "whatever Romeo and Juliet may show about the need for copyright law, it does not support the incentive argument."

  1. Shakespeare's ideas are not protected

Shakespeare has been invoked more than any other artist to explain the idea/expression dichotomy in copyright law, in other words, the notion that ideas are not protected but the fixed expression of those ideas may be. Judge Learned Hand ignited this discussion in Nichols v. Universal Pictures Corp., a case brought by the author of the 1922 play, Abie's Irish Rose, against the author of the 1926 film, The Cohens v. The Kellys. Both works told the story of the racial antagonism between an Irish family and a Jewish family whose children fall in love with each other.  Judge Hand, in affirming judgment for the defendant (and 27 years before West Side Story), opined that:

If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare's "ideas" in the play, as little capable of monopoly as Einstein's Doctrine of Relativity, or Darwin's theory of the Origin of Species . . .  We have no question on which side of the line this case falls. A comedy based upon conflicts between Irish and Jews, into which the marriage of their children enters, is no more susceptible of copyright than the outline of Romeo and Juliet.

  1. Your ideas about Shakespeare, on the other hand, may be protected

Even though Shakespeare is often Exhibit A to illustrate the fact that copyright law does not protect ideas, his work was also the vehicle for one of the most high-profile cases involving copyright law's weird California step-sister: the protection of idea submission. This is basically a breach of contract action in which the plaintiff has presented a creative idea to the defendant under circumstances giving rise to an implied contractual obligation to pay the plaintiff if the idea is used (e.g., where defendant has solicited plaintiff's ideas through a literary agent).

In Blaustein v. Burton, the plaintiff presented the defendants with the idea of making a film based on a Shakespeare play, starring Richard Burton and Liz Taylor, directed by Franco Zeffirelli, and giving extra emphasis to two scenes that occur off-stage in the play. The defendants made this film, the 1967 version of The Taming of the Shrew, but they did not credit or compensate the plaintiff.  The Superior Court of Los Angeles granted summary judgment against the plaintiff, but the California Appeals Court reversed, holding that even such conspicuously commonplace ideas could be protectable and compensable if the circumstances gave rise to an implied contractual obligation to pay for them.

  1. Shakespeare having writer's block is not a "Scénes à Faire"

In 1999, two authors brought a copyright infringement claim against the makers of Shakespeare in Love, alleging that the film infringed their screenplay, The Dark Lady, which was also "about William Shakespeare writing a new play and falling in love." The defendants in Miller v. Miramax argued that the similarities between the works were mere scénes à faire; in other words, they were elements so typical of or absolutely necessary to the genre that they were not original enough to be subject to copyright protection (for example, a gladiator fight in a book about ancient Rome, or an Italian mother character in a mafia film).

On the defendants' motion for summary judgment, the Central District of California agreed that certain historical characters and locations were indeed scénes à faire in any work about Shakespeare. However, the Court was also troubled by the many creative choices that appeared in both works, and that were neither necessary to nor necessarily typical of depictions of Shakespeare. Both works feature Shakespeare suffering from writer's block while under pressure to write a new play, burning the manuscript in frustration, meeting a literate noble woman who knows his work by heart, having an affair with her and being inspired by her to overcome his writer's block, watching her star in the new play and then having his heart break as she escapes to the New World. In other words, there were enough similarities in protected expression to survive summary judgment. So Shakespeare having writer's block might not be the most original idea in the world, but neither is it an archetype of the genre. The case settled before trial.

  1. Shakespeare was an inveterate plagiarist

So frequently has Shakespeare been trotted out as the example of an author whose work needs copyright protection that it's easy to forget that his contemporaries covered up their laptop screens when Shakespeare walked into the Stratford Starbucks. Some argue that Shakespeare's success was so dependent on stuff he stole from others that even half-decent copyright protection would have ended his career rather quickly. Fellow author Robert Greene accused Shakespeare of being a rank plagiarist or, in his words, an "upstart crow, beautified with our feathers."

Greene has been conclusively drubbed by Shakespeare in the battle for historical relevance, but perhaps he can take comfort in two things. First, the earliest mention of Shakespeare in a published U.S. copyright case was principally as a plagiarist, not as a creator. In his 1845 opinion in Emerson v. Davies, Justice Joseph Story supported his argument that copyright protection should be afforded to mere compilers of pre-existing materials (i.e., the "sweat of the brow" doctrine) by referring to Shakespeare as having "gathered much from the abundant stores of current knowledge" of his day. Second, a new BBC sitcom about Shakespeare (premiering in 2016 and starring the brilliant David Mitchell . . . no, wait; the other brilliant David Mitchell), is going to be called The Upstart Crow.

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