An hour or so ago I heard a story on NPR about California's new "Dead Celebrities" law. In a nutshell, it allows the heirs of a celebrity to control the use of that celebrity's image after said celebrity's death... even if at the time of the celebrity's death, the right to bequeath this power didn't exist.
I always find these sorts of stories depressing, because there is an important perspective that is lost. In the story, we hear that one side of the legal thinks it boils down to one simple question:
"How can a celebrity's legacy be protected, and who can do that?"
But he's wrong. There is another simple question we could be asking here:
Are we such a celebrity-obsessed culture that we will give celebrities the power to limit our freedom of expression even from beyond the grave?
To often, in stories about expansion of what is called "intellectual property rights" (i.e. exclusive copyrights, patents, and trademarks), we hear about how it's "property," and how violation of these things is theft. Very, very, rarely do we hear the fact that these things are also limitations on freedom of expression.. Indeed, the conflict this NPR story focuses on is entitled "Whose Property?", and the other side of the lawsuit is a guy who wants to continue to profit by selling licensing rights to his father's photographs:
"It's against the Constitution to take away someone's property," Greene said. "Somebody can't come in and take away your property. You own it. Your father, let's say, composed a piece of music. Now, all of a sudden, someone else is going to come in and say, 'We're going to take over your rights.' I beg your pardon?"
Here, the side against this expression-squelching law has completely accepted the notion that "intellectual property" is just like other forms of property.
I'm not saying that we shouldn't have copyrights or trademarks at all. I am saying, however, that the very terms of the debate stilt the debate towards copyright maximalism, and ever expanding copyright restrictions and terms... and that we have lost sight of the fact that copyright is a sacrifice of our freedom of expression, and its benefits need to be evaluated against that sacrifice.
Let us suppose this California law becomes the standard, a federal law or widely adopted amongst all the states. Now suppose that 50 years from now somebody writes an article entitled "Where It All Went Wrong" about early 21st century American presidential politics, and wanted to include the following image (which I grabbed from the US Dept. of State website):
To do so, the article's author would have to get permission from four estates: the estate of G. W. Bush, the estate of D. Cheney, the estate of C. Rice, and the estate of the photographer.
Does this sound to you like the legal landscape of a society that values freedom of expression?