In the Meantime...

I decided while we wait for things to happen in the Myriad appeal to post the selection below, a Foreword I wrote for the upcoming book A Question Mark Above the Sun by Kent Johnson, to be released in the next few weeks by Starcherone Books. Because the question of "creation" is vital to my argument about rights of inventors over sequences they didn't write, but merely found and copied, I thought readers of this blog might see the nexus between authorship, creativity, and ownership in other media. I loved writing this, and hope you'll enjoy, and I urge you to support Kent Johnson by buying his book, because it's great:


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A Question of Authorship?

David Koepsell

The relations between authors and texts are as complicated as any human relationships – perhaps even more so. Who counts as an author, and what connects the author and a text once written are much debated, and long have been. Academic arguments, for instance, about the “true” author of Shakespeare’s work rage still, many hundreds of years after the canon was written. Arguments in academia often focus about who counts as an author, and who should be so named on journal articles. Credit for authorship is a much older, established right for which duties might be owed than, for instance, the relatively modern institution of copyright. But the connection between author and work has always been tentative, and theories of literary criticism have wavered between those who insist upon authorship’s critical importance and others who maintain the absolute irrelevance of questions of authorship or author’s intention. Simply put: should we care who wrote something, really? Does it ultimately matter? And to what extent are authors really responsible for a text, or owed some duty of attribution? Finally, are “errors” of attribution harmful? These are deeply philosophical questions of ethical import raised intriguingly in the following pages by Kent Johnson. But before we get to “his” text, I’d like to address the fundamental, metaphysical and ethical issues underlying both his work and the controversy around which it dances so eloquently.

For almost two decades now I have turned my attention to the metaphysics of expressions. Specifically, I have been interested in what counts as an expression, and how expressions differ from other sorts of things. In that time I have mostly concentrated upon the legal category we call “intellectual property,” which most of us know as copyrights, patents, and trademarks. In the course of this work I’ve come to a theory of expression that has implications broader than IP law, which concerns legal monopolies to profit from expressions. My work has led me to critique the foundations of IP law for various reasons that are not relevant to this text. But the broader implication of what I have come to believe is, namely: expressions, once expressed, do not belong to the author. To get to this point, and its obvious implications for the remarkable events behind A Question Mark Above the Sun, let’s look at what it means to be an author, and what an expression is, stripped down to their elemental forms, and without worrying for the moment about what we think ought to be the case.

An expression is the extension of some idea into the “real” world. Ideas exist as thoughts in minds until they are expressed, and then they take on lives of their own. In fact, this is why modern intellectual property (IP) laws were created: because once an expression “leaves” the author, it is simply no longer physically (and maybe morally) beyond the realm of his or her dominion. The expression is free for all to adopt, appropriate, alter, or re-express. So we should be skeptical of claims about any “exact” connection between an author and an expression. This is certainly true for expressions that have been around a long time. The works of Homer, for instance. Homer’s works were recited for ages before they were written down as poems and songs that were part of an oral tradition that predated modern, mass-produced copies of either. Whose expression is “The Illiad”? even assuming a largely mythical Homer did exist, “his” epic poetry was told and re-told many thousands of times, doubtless changing over time, with new riffs and tweaks added by balladeers over the ages before someone first published a written copy, or before a standard Homeric canon was created some centuries later. Then translated, the meanings and nuances added or lost are the result of the translators. Whose voice remains? Is it Homer?

Of course Homer’s works are no longer truly Homer’s, and may never have been. In a very real sense, they ceased to be Homer’s (or the author(s)?) once released into the wild. There they took on new forms, and their current iteration, while still attributed to some author we call “Homer” (or someone, the joke goes, not Homer but with the same name) is a text whose authorship is very much literally doubtful. It is the work of legions, now, unnamed and unimportant in the grand scale of literature. Works such as Homer’s, like the Bible, for example, historically remote and oft-changed, altered and translated over millennia, are most clearly distinct from the expressions of their “original” authors. These sorts of works raise not just metaphysical, but ethical questions about the role and importance of authorship to a particular text. Does it matter, for instance, if Homer did not write, originally some particular verse or phrase, or for that matter, Homer’s works in their entirety? Is there some right or duty relating to the first expression of some idea, and its ultimate fortune?

While we may be responsible for our expressions when they are made, the root of that responsibility is in the choice of making the expression and in its initial content. It is a terrible risk to express an idea, one imbued with more chance of failure, ridicule, and numerous other potential liabilities than with “success.” Success generally means finding an audience that appreciates or at least acknowledges the expression. Most expressions drift away into the winds, never to be remembered. This is often thought of as the worst sort of failure for an author. But is this sort of failure linked to the fate of the expression, or the fate of the expression’s linkage to the author? The answer to this, which is in many ways the question underlying Kent Johnson’s musings and research, depends on what is important to the author as much as what is appreciated by an audience. What if there is no one “Homer” or what if Shakespeare either didn’t write some or all of Shakespeare’s works? What does this mean for us, as an audience, the worth of the works, and the value of Homer or Shakespeare as poets?

Most authors want to be connected to their works. Their expressions are personal, and this is the great risk of authorship. The courage to express means also accepting the great risks of expressing. Oblivion, ridicule, criticism, and obscurity are one’s most likely fates, but all authors dream of making some lasting impact on the world through their expression in some medium. Sculptors and architects do so with real, lasting monuments, and those who write attempt to do so with materials more ephemeral. Balladeers’ and dancers’ mediums of expressing are more fleeting still. Some people believe that taking the risk of expressing an idea in some medium requires that the community of potential observers and appreciators acknowledge that risk through such things as attribution and more recently, monopolies. Some authors (and clearly, I am using this term very loosely because I view expressions as occurring in many types of media, at the hands of a range of artists and even inventors) choose to produce their expressions anonymously, or care little for their attribution. Their reasons may be many and varied. Perhaps they fear the potential risks, or maybe they see the expression itself as being more important than attribution.

The question for us, if we are concerned with the ethics involved in “proper” attribution, is: is attribution of expression to author a moral requirement? Improper attribution can be a moral wrong where an expression is harmful, somehow. Attributing a libelous expression falsely is clearly wrong, as it passes off a responsibility for harm to an innocent party. Attribution, or the naming of the original author, is not only often imprecise (because as we saw above, expressions are changed over time, and may accumulate numerous authors) but is not morally required. Authors might wish to be associated with their expressions, but we are under no positive duty to ensure they are.

Part of the risk of expression is that the thing expressed lives a life of its own, flitting off into the wild, morphing over time, affecting audiences in any number of unpredictable and unintended ways. An author could no more ethically take credit for unintended good effects than for unintended bad ones. Once “free” of the author (once expressed) the expression and author are related only tangentially, as a perhaps interesting story about a particular expression’s origin, but little more. Our expressions live on, populating the world, replicating, thriving without us, and we should be glad of this. Just as with children, for whom we might be proud as they grow, thrive, develop, and go about their lives; our expressions live on, thrive, die, or remain unknown despite our hedonistic wishes for immortality. Children are not their parents, and their successes or failures speak only partially to our success or failure as parents. Authors and parents want to claim credit for the successes of their expressions or children, but allowing them to succeed (or fail) without the necessity of taking that credit represents a greater moral choice.

In fact, this is the realization of much modern literary criticism and its disentangling of author, intention, and expression. The work speaks for itself, and while we might very much enjoy trying to discern the author’s intention, doing so is epistemologically impossible, perhaps even for the author at the time of expressing. Kent Johnson takes this to its logical and moral extreme, questioning the rights, duties, and nature of authorship and attribution in general. He does so from firm ground. Authors have long toyed with the nature of their own authorship, and created personae and pseudonyms to make their expressions on their behalf, implicitly acknowledging the absurdity of any firm connection between expression and author. Araki Yasusda, who may or may not have been a Japanese poet whom Johnson translated, is but one example, and the story Johnson weaves to make his political and moral case about “O’Hara’s” poem is both serious philosophical inquiry and wrenching satire.

Modern political economy and the nature of profits in the publishing world have encouraged adopting a myth about the relation of author to work. This myth, destroyed effectively by Johnson, and undermined by the historical examples I have noted above, is that expressions are the author’s and that we must somehow acknowledge their conception to them and their profits. We choose to do so now for complex reasons, and in so doing may very well undermine the moral worth of creative expression. Blockbuster authors are now often industries around which publishing empires rise and fall. For instance, Bloomsbury, which published one of my books, has made a fortune and grown significantly propelled by the profits of Harry Potter. J.K Rowling is now inextricably associated with the Harry Potter volumes and movies. Rowling is as much a brand as the books themselves, expertly crafting a persona and canon that will, for the foreseeable future be known both as her and hers. How does Harry Potter stack up to Beowulf?

I’ll take a great risk and suggest that in the next thousand years or so, if humans remain, and English is still read, Beowulf will continue to have an important role in our culture and Harry Potter will not. J.K. Rowling may well be regarded as a successful author in her time, and Harry Potter valued for introducing a generation of kids to long-form fiction reading, but as great literature whose impact on a culture is historically important and meaningful, Beowulf, whose author is unknown, is a monument unlike most modern works. Were I the author of Beowulf, if indeed there was a single author, I’d prefer that sort of legacy to Rowling’s. While works of greatness uncoupled with fame or fortune do not pay the bills, they are the reason most good authors take the risk of authorship to begin with. But there are few truly good authors, and fame and fortune are the current gods to which we worship. Now here comes the proselytizing, and forgive me, I am not primarily a fiction author (though I have dabbled). Authors should strive neither for fame nor profit. Thus, attribution ought not to be an author’s primary concern (or even a concern at all), but rather the expression itself ought to be an end in itself, rather than a means to some other end. The author’s primary duty overrides claims of obligations owed by others, beyond the duty not to falsely attribute. If the author’s duty not to claim rights to expressions is true, as I claim it is, then there is no harm in even false attribution where there’s no harm. Yes, some artists want to be known for their works, but more often than not, true artists want their works to be known.

Consider Banksy. Banksy is famous for his works, iconoclastic stencils that began as graffiti, but are known and sought the world over as art. But Banksy is a pseudonym, and the ongoing power of his work stems in part from his carefully crafted and preserved anonymity. In the film Exit Through the Gift Shop, we see Banksy’s hooded figure, and marvel at the rise of an obsessive-compulsive documentarian of graffiti art’s own rise to the heights of artistic success, trading on the modus operandi of Banksy, but without so much talent. Of course the joke may well be on us, as the whole “documentary” seems ultimately to have been a charade of sorts, making fun of the art world, fame, glory, money, and the role and importance of critics in turning the previously banal into gold. This film, like Orson Welles’ F For Fake, uncovers the ludicrous extent to which we attach names and histories to expressions, and how this turns something into a treasured piece of “art.” Welles’ “film essay” (as he called it) itself plays with notions of authenticity and authorship, focusing on famous fakers such as Elmyr de Hory, one of the twentieth century’s most successful art forgers. News that many of the forgeries that de Hory had sold ended up in famous galleries throughout the world both enraged collectors and urged them to be silent. So many “authentic” Matisse’s and Picasso’s, all suddenly called to question. The value of each as a market commodity must now be forever in doubt, even if the artistic value of any of them might be unscathed.

What is it after all that makes a particular Vermeer valuable? Han van Meegeren, who faked and forged dozens of Vermeers, sold them successfully to educated collectors and museums before he was caught. Was it the signature that made the painting a worthy piece of art? Was it the art itself? Orson Welles’ great works were fakes of a kind as well, under the guise of which he could more successfully treat delicate subject matters, like the story of William Randolph Hearst under the very thin guise of Citizen Kane. Clifford Irving, who wrote the book Fake! About de Hory, became Welles’ subject in F for Fake when his attempt to publish an official “biography” of Howard Hughes becomes exposed as a fraud. And around and around we go. Author, work, truth, fake, art, critic… the lines are forever blurred when we begin to grapple with the metaphysical natures of each, and the ethical duties of author and audience.

Johnson upends and dispels all the traditional notions of authorship and its role in creation, scandalizing many in the process. This is what happens when the status quo, by which the current business of publishing continues and profits some, is challenged at its very base. It is a final deconstruction, of sorts, to claim as he does through the thin veneer of fiction, that there is some sort of conspiracy at work protecting the origin of a great poem. There is a conspiracy at work. There are several, in fact, including the twin conspiracies of convention and commerce, according to which authors are the inventors of the works they create and, like Thomas Edison, should profit through a state-supported monopoly over their “creations,” as well as some social-institutional monopoly over its essence. To pretend there is some sort of strict tie, some ownership, some moral right to protect and defend an expression once expressed is a form of authorial authoritarianism. It is the antithesis of free thought. Ideas don’t want to be free, they just are. Part of the risk of expression involves the loss of control.

But authors who aspire to Homer’s fate take that risk and launch their works into the winds and hope. Hope is the thing with feathers, and great works take flight without legal institutions, critics, or conventions to buoy or defend them against history. The freedom of expression is perhaps our most basic right, because it intercedes at the barrier between the mind and the body, where we choose to bring ideas into the world, but it comes with a certain responsibility too. “Our” ideas are only genuinely ours to the extent that we keep them trapped in our minds, and even so, they are likely not just ours. More often than not, they come from somewhere and someone else. Great ideas turn up historically in numerous places at once. Newton, who (may or may not have actually) said he stood on the shoulders of giants, quarreled with Leibniz for years about the origins of calculus. Their approaches to the problems of calculus were different, but solved the same problems using differing methods. Today, both Leibniz and Newton are celebrated, and calculus (whoever “created” it) helps propel rockets to the planets and beyond. Newton, and Leibniz, and every other scientist before and since has stood on the shoulders of giants: their peers, and their betters, who preceded them. Science is an evolving narrative, constantly refined but never perfected, a cycle of observation, hypothesis, synthesis, theory, observation, falsification, hypothesis, and so on.

Literature too is an evolving system, a dialogue of sorts among authors and voices within a tradition (sometimes encompassing numerous languages) over time. Ulysses is Joyce’s homage to the epic, borrowing from and imitating various styles, merging fiction, politics, religion, and culture in a new tapestry, the parts of which are neither new nor original. Ulysses is Odysseus, and Joyce plays Homer, wrapping an ordinary Dublin day in the cloak of epic. It was scandalous too, for different reasons, daring to elevate the bodily and the base, and insert them into epic. Since its original publication, Ulysses has changed, and the version that many of us grew up with as the “official” version has been replaced by a work alleged to be more closely aligned with Joyce’s own intention. Are there two Ulysses? Which is the real one? And who wrote each? Ulysses evolves, even as the Homeric epics have. Like all expressions, it is susceptible to revision and change, and Joyce’s intentions are both unknowable and irrelevant. Only a certain cult-like adherence to the myth of some strong link remaining between author and expression will defy this inevitable tendency. To defy this is to deny the true status of expression and to insist on some morbid, unnatural stasis in our culture and its artifacts.

And so what if? What if Johnson’s story is “true” to the extent that Koch wrote O’Hara’s haunting, prescient poem as an homage, an act of beneficence, the selfless act of an author who recognizes the overarching duty to express free of any egotistical desire for attribution? Is positing such an act of friendship, honor, and beauty a crime? Is it even just ethically wrong or suspect? I think it’s a lovely idea, and Johnson takes the risk as any author does of expressing his idea in a creative way. In so doing, he enriches the culture with literature, raises important philosophical questions, as is his wont, about the nature, duty, and obligations of authorship, and provokes further inquiry and wonder about a literary moment. It is interesting to ponder. It would be, as Johnson suggests, a truly supererogatory act if true. It is useful to consider the nature of acts through fiction and non-fiction. Ethicists do this all the time. We posit trains, and multiple tracks, and sacrificing 1 person versus 5, we compose outrageous hypothetical situations so that we can consider the ethical issues at play. These narratives are sometimes ridiculous and disturbing (as in the various “trolley” examples, involving choices between killing numbers and types of bystanders who happen to be stuck on railroad tracks) and even scandalous (cannibalism on lifeboats, etc.). But these stories are meant to provide insight into values by forcing us to consider what roles intentions and consequences mean for ethical decision-making.
Philosophers exchange, comment upon, revise, and embellish hypothetical examples used in ethics research. The history of philosophy in general, as in all scientific research, is a history of footnotes, critique, and revision of ideas whose geneses are often now obscure – standing on the shoulders of giants. Claims of originality must be looked at skeptically.

 
Johnson crafts a fictional account (a hypothesis of sorts) as a means of inquiry, as scientists do, as philosophers do, to examine a possibility. Like good science fiction and good science as well, it is founded upon entirely plausible circumstances, with some interesting and unlikely drama thrown into the mix from literary license. Like good literature, it launches itself as an expression into the winds of history and opens itself up for our use as we see fit. The laws these days still allow this sort of supposition, though we should be mindful about trends that could silence it. Laws are constantly refined to benefit the monopolists of expressions. Science itself is becoming monopolized by desperate academic presses intent on placing profit over the ethos of science, which has hitherto been open and free. Copyrights have been extended time and again, having begun with terms of 14 years, and now thanks to the late Sonny Bono’s famous lobbying for an extension of the copyright term just before Disney’s Mickey Mouse was due to lapse into the public domain, the monopoly for expressions is now the entire lifetime of an author plus an addition 70 years. The public domain, those expressions that are our not only morally but legally to do with as we will, is shrinking by degrees.

The world of free expression must push back against both the tyranny of conformity and the authority of the law. Law that seeks to constrict our free expression must be especially distrusted. Threats to free expression, and the freedom of expressions, come both from attempts to monopolize, and from those who seek to squelch criticism. Expanding notions of libel or slander, reputation and celebrity rights, and other attempts to prohibit the use of that which ought to remain in the public domain, all undermine authors’ moral dignity, and the duty to express. Anything that constrains an author from expressing is suspect. Expressions, except when they are truly libelous (false claims that harm a reputation), are risks for both the author and audience. The author takes the risks described above, that they will succeed and live on unencumbered by the author, or dissipate and die, unknown and unheard. The audience takes a risk that the expressions they consume will change them somehow, and affect them in some deep way that stays with them forever.

The (morally) best authors (and inventors) embrace a radical view of free expression, where they recognize the risks and rewards of creation. God took such a risk, in the Judeo-Christian tradition, creating humanity and giving us “free will.” Because Adam and Eve chose the path offered to them via free will, and consumed of the tree of the knowledge of good and evil, we are here. It was God-as-author’s risk in creating a free expression that humanity would act beyond His control, His command, and become creators too.

Our free will embodies a moral imperative to speak what we believe is the truth, or important, despite the consequences. The corpus of expressions created since the beginning of time are a testament to man’s role as creator, channeling ideas into the world upon which each new generation of creators builds. Who is the author of our culture, or the entire history of human expression? No one person is, but our culture is the sum of all. It is the collective consciousness made manifest in every medium conceivable, told by a litany of voices, creating an orchestra of ideas, a symphony of words, pictures, stories, poems, statues, and science. No greater monument to humanity exists. We cannot bottle it up or create ties binding any one work to any one author.

Homer, Joyce, Yasusda, God, Shakespeare, Johnson, they are all only the genesis, but creation is now beyond their control. Expressions live on their separate lives, unchained and free, evolving and uncredited, and this demonstrates the dignity, duty, and the courage of being a creator. Let us celebrate then the risk of creation, and the duty to let go, the allow our expressions their separate lives, and build a common culture of communication through our evolving media, content that there are expressions -- these supremely human, flawed, and most permanent cultural artifacts. They will survive, like the words on Ozymandias’s fallen statue, which survive even while a culture and its king’s visage lie in dust. They will speak of us long after we are gone, and speak well only if we let them.

Johnson’s book celebrates the unbound word, our Promethean glory as creators free of the debt of credit. His own act of creation, obscured as truths wrapped in fictions, touches upon the duty and ethos of the author and audience, spinning together, weaving something beautiful, and alive, new, and unchained. Somehow and somewhere, beneath or because of the cognizable expressions, imperfectly capturing our ideas, the truth will eventually be known. We are lucky if we get glimpses, and good authors, when they are especially fortunate or particularly talented, may give us those glimpses.