(c)

Thanks to Professor Bell for the kind words. I remember our first argument—he had given a talk about how he uses the word “liberal” rather than libertarian. A fine talk, and of course it’s true that libertarianism is “true” liberalism. But as I told him afterwards, it’s just a lost cause; we might as well embrace the word libertarian, annoying as it is.

The problem with self-plagiarism as I see it is revealed by Fogerty’s case—here’s a man who produces music with a certain style. All his songs sound, to some extent, the same, because they are created by his personality. Surely he can’t see his personality to Fantasy Records. He can sell a particular expression, just as I can sell a manuscript to someone, but if someone can make a “substantially similar” argument here, then that seems to threaten the inalienability of one’s creative personality, because all the music that John Fogerty will ever produce is substantially similar to other music John Fogerty has produced (at least, if he intends to retain his artistic integrity). Fantasy records alleged that the substantial similarity between the songs was due to “subconscious copying”! Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1532 (9th Cir. 1993). And that suggests something I’ve written about before—the question of whether you can own a genre. Can John Fogerty own swamp-rock? Can he sell it to Fantasy Records? If so, then self-plagiarism would make sense, but that would mean that, say, the Hollies’ “Long Cool Woman,” (which Fogerty once called the greatest Creedence song he never wrote) would be plagiarism of “Proud Mary,” which nobody could seriously argue.

So we have a spectrum. On one extreme is the possibility that a person could own the genre of swamp-rock, in which case his ownership of “Run Through The Jungle” would forbid me from writing “The Old Man Down The Road” or “Long Cool Woman,” or “Smokestack,” (a great cut on Doyle Bramhall’s recent album, which has a slight Creedence tinge to it). That seems ridiculous. You can’t own a genre. On the other extreme, Fogerty can only own a specific, exact arrangement of notes—so that if you change just a single note of “Run Through The Jungle,” you’ve got a brand new song. But nobody buys this, either, because it would make intellectual property too silly a concept. Change a single note in an entire song and it’s a new song? Ludicrous. In seeking a middle ground between these extremes we use “reasonableness.” But I don’t think reasonableness works if we’re using a natural right theory of copyright. If John Fogerty invents swamp-rock, then under a natural right theory of copyright, then he should be able to prohibit me from writing in that genre. (And, face it, Fogerty did invent swamp-rock, as much as anyone can ever invent a musical style.) Yet, if I listen to CCR songs and I go and write a brand new song, such as “Long Cool Woman,” then that can’t be plagiarism unless every song-writing is plagiarism.

What I think is that the only way to use reasonableness to draw a line between these two extremes is to assume that copyright is purely statutory. I know Prof. Bell doesn’t think copyright is a natural right—in fact, he talked me out of it. I just think this is an example of the weakness of the natural right theory of copyright.