Take it back

Copyright reversion, bargaining power, and authors’ rights.

Few labor markets are as dysfunctional as the market for creative labor. Writers, musicians, graphic artists and other creative workers often produce because they feel they have to, driven by a need to express and discover themselves. Small wonder that creative workers are willing to produce art for lower wages than they’d accept for other types of work. This leads to a vast oversupply of creative work, giving publishers, labels, studios and other intermediaries a buyer’s market for creative labor.

For the most part, arts policy pretends this isn’t true. When economists and business-people talk about labor markets, they lean heavily on the neoliberal conception of “rational economic actors” who produce when it makes sense to do so, and move on to another form of work when it doesn’t. Homo economicus is a nonsense — behavioral economics has repeatedly demonstrated all the ways in which “economic actors” don’t behave the way economic models predict they will — but it’s especially absurd when applied to creative labor markets.

To be fair, policymakers have been abetted by creators who insisted that they were only acting rationally — think of Samuel Johnson’s “No man but a blockhead ever wrote except for money.” But no amount of pretense could fully obscure the irrational and exploitative nature of the market for creative work, which is why we find odd glimmers of reasonableness in arts policy.

Take the first US copyright law, the “Framers’ Copyright,” which established a 14-year term of copyright. This was, and still is, the term of commercial viability for the vast majority of works. However, if your work happened to be among the lucky, tiny minority of books that were still commercially active after 14 years, you could get another 14 years of copyright — but only if you, personally, applied for it.

Did you catch the labor policy latent in that copyright law? If a work was commercially viable after 14 years, the creator could extend its copyright for another 14. The publisher couldn’t.

The vast majority of creators who sit down to dicker over the price of a new work with an investor — a publisher, a label, a studio, etc — have virtually no negotiating power. Not only are there…