Friday, October 28, 2016

I'm a Copyright Attorney, Not a Sorcerer

Several weeks before Bonnie Foreman's death, I watched her
laughing and joking as she downloaded a pirated copy of my book, The Copyright Permission and Libel Handbook: The Cursed Edition. She read a lot and drove too fast. I said I'd give her six weeks to live. The autopsy carried out on her body was inconclusive. But, here's what I can tell you. She expired around page 36. Somewhere between out-of-print works and special fair use situations. Curse or coincidence? I cannot say for sure. I'm a copyright attorney, not a sorcerer. What I do know, it wasn't the copyright notice that did her in.

What takes place within us when confronted by a curse? You read the text carefully and are forced to reflect on what you are reading, and your mortality. 3,000 years after his death, King Tutankhamun’s curse still conjures up fear (Unlike copyrights, there are no limitations on 3,000 year old curses). By comparison, the copyright notice, a creature of the 1909 Copyright Act, is a toothless warning of remote judicial remedies that lasts, depending upon how computed, a mere 70-years after an author dies.  Plus, it doesn't help that the copyright notice symbol resembles a frown emoticon resting on its side.

Gory, gruesome, nasty, cautionary, score settling notices drafted by Egyptian priests and monk scribes, curses were once used to stop book thieves and plagiarists in their tracks. Like the copyright notice, which says, "I own this" (with reservations), curses inform the reader that a work is protected. While there are some practical issues, I have come to believe that a mix of legislative solutions, works licensed under Creative Commons licenses, and cursing, can offer a workable solution to an internet that wants to be free, and authors, composers, dramatists, and visual artists who want to eat. Old sorcerers wrote the following ancient warnings. While dormant for years, these precursors of the modern copyright notice, can be brought into play immediately.

In Biblioclasm, author and illuminator, Marc Drogan, identifies the following as the most famous literary curse. It still has what it takes.
"And if any man shall take away from the words of the book of this prophesy, God shall take away his part out of the book of life, and out of the holy city, and from the things which are written in this book." -- Revelations, 22:19

Aleppo Codex
The Christian church didn't have a monopoly on literary curses. Medieval Jewish scribes issued stern warnings against modifying even a single letter of the Hebrew bible, since each of the 304,805 letters that comprised it had divine meaning. The following lines written C 984, appear at the end of the Moshe Ben-Asher Codex, the oldest medieval Hebrew bible:

"Whoever alters a word of this mahzor or this writing or erases one letter or tears off a leaf . . . may he have neither pardon nor forgiveness; neither let him behold the beauty of the Lord. He shall be like a woman in impurity and like a leprous man, who has to be locked up so that his limbs may be crushed, the pride of his power broken, his flesh consumed away that it cannot be seen, and his bones that were covered made bear."

The warning associated with the Moshe Ben-Asher Codex concerns rights in the text, not ownership of the copy. It can be interpreted as a early form of copyright control. Under copyright law, the exclusive right to adapt resides with the owner of the text, not the owner of a particular copy of a book. Personally, I think disgorgement of profits (a remedy under copyright law) better fits this type of crime than broken bones or necrotizing fasciitis. But, that’s just me.

The curse begat the copyright notice 

Medieval colophons, the antecedent to the copyright notice, appeared, initially, as concluding statements at the back of manuscripts. The colophon would indicate the work's title, the scribe or copyist (not the author), date and place of copying, and contain either a blessing or a curse. So, while a direct connection between the colophon and copyright notice may appear fuzzy, the common assertion of ownership rights, and threat of consequences for those who violate those rights cements the connection in my mind.

To get the most out of a curse (or a copyright notice), it must be displayed prominently

Geoffrey Galister, in the Encyclopedia of the Book (Oak Knoll/British Library), explains that by the early 16th Century, the practice of placing a colophon at the end of a book was largely abandoned. Instead of the scribe's name appearing at the back of the book, the printer's name (and its royal license to sell the work) appeared on the title page where it could be more easily seen. Makes sense. Copyright law provides for more potent penalties against willful or knowing infringers, than innocent ones. Similarly, with a curse, knowing you've been cursed, makes the curse more potent. However, "[M]any Witches and sorcerers claim that curses can be just as effective without the victim’s knowledge of them." See, Mystica. Being an "Eye of newt, and toe of frog" kind of guy, I recommend prominent display of both.

By the early 18th Century, secular threats of legal action supplanted curses. With the passage of the Statute of Anne in 1709, England's first copyright act, the regulation of unauthorized copying was went from god's exclusive jurisdiction to her Majesty's courts. In 1802 the U.S. Copyright Act, a direct decendent of the Statute of Anne, was amended to require a notice be placed on each copy of a work.

Like colophons, which listed special aspects of the book, such as the paper variety or type style used, copyright notices, generally appear on the title page, or reverse of the title page of printed books. The copyright symbol, the familiar © followed by the date and name of the owner (not necessarily the author), often comes with a nasty warning, not a curse. Here's a mildly threatening one:

ALL RIGHTS RESERVED. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without the prior written permission of the publisher.

Not too scary. Compare the polite "All Rights Reserved" legend found in close proximity to many copyright notices, with your average illuminated manuscript curse. If you were lent a manuscript and failed to return it, or made an unauthorized copy, you - and perhaps your forebears and children -- were forever cursed. In contrast, a copyright notice is a yellow blinking light at the corner of Purchase and Purloin Streets. Copyright notice or curse? No contest.

For 187 years, until the notice requirement was abandoned, in 1989, if a work was published without the proper form of notice, it was cast down into the public domain. Of course, a public domain work may still be covered by a protective curse. This is another advantage of a curse over a copyright notice - however, one that does not comport with the "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries," mandate of the U.S. Constitution. [Emphasis added]

According to Drogin, the oldest known book curse appears on 
cuneiform tablets found in the biblical city of Ninevah. Like today's authors, Babylonian King Assur-bani-pal (668–626 BC) wasn't just concerned with protecting against theft, but receiving credit for his work. The French might equate it with “droit moral” – an author’s right to defend the integrity of their work and the use of their name. King Assur-bani-pal imprinted this form of notice on his royal records:

"Whosoever shall carry off this tablet or shall inscribe his name on it, side by side with mine own, may Ashur and Belit overthrow him in wrath and anger, and may they destroy his name and posterity in the land."
King Assur-bani-pal

The profound fear of being forgotten loomed as large in Babylonia then as in Hollywood today. Removing the name of a king from a cuneiform tablet meant he never existed. Much the same can be said for failing to credit a writer of a screenplay, whose livelihood (and footnote in history) depends on the works which bear their name.

Whether a curse or a copyright notice, these admonitions are powerful starts to the reading experience. Where does the power come from? Fear.

"May whoever destroys this title, or by gift or sale or loan or exchange or theft or by any other device knowingly alienates this book from the aforesaid Christ Church, incur in this life the malediction of Jesus Christ and of the most glorious Virgin His Mother, and of Blessed Thomas, Martyr. Should however it please Christ, who is patron of Christ Church, may his soul be saved in the Day of Judgment."

Before Johannes Gutenberg's invention of the printing press in the mid-1400s, books were precious objects worth fighting over. Coveted by the wealthy elite, stolen in a prior era by marauding Norsemen, literary monks went to great lengths to protect their collections of valuable manuscripts. Not only did they employ curses, but, they tethered their bibles to bookshelves and lecterns with chains.

As the fifteenth century became the sixteenth, book curses underwent a change, becoming more secular, foreshadowing the birth of copyright as a device to secure the sale of copies, and protect the livelihood of authors and publishers. German renaissance artist Albrecht Dürer invoked the wrath of the crown, not god, declaring in 1511:

Dürer's Engraving of  Erasmus

"Hold! You crafty ones, strangers to work, and pilferers of other men’s brains. Think not rashly to lay your thievish hands upon my works. Beware! Know you not that I have a grant from the most glorious Emperor Maximilian, that not one throughout the imperial dominion shall be allowed to print or sell fictitious imitations of these engravings? Listen! And bear in mind that if you do so, through spite or through covetousness, not only will your goods be confiscated, but your bodies also placed in mortal danger."

A copyright notice threatens economic harm, while the strategy behind the black art of the curse is to attack the infringer's mind. Dürer's transitional curse succeeds at both tasks.


How do you deter and/or retaliate against digital pirates who operate in total darkness? Tensions between copyright law and freedom of speech aside, curses offer an intriguing tenth century solution to this twenty first century dilemma. British law had a huge formative influence on U.S. copyright law. Maybe we need to take inspiration from Britain once more. Instead of a new Registrar of Copyright, a big shoe position which is currently vacant, perhaps, what we really need is a J.K. Rowland inspired Head of The Improper Use of Copyright Office, a subdivision of The Department of Magical Law Enforcement, in The Ministry of Magic (not the Library of Congress).

Copyright 2015 - 2017 Lloyd J. Jassin. All Rights Reserved.

Disclaimer / Curse: This article is protected by the Eye of Horus. If you infringe this article, may you be seized by the neck like a bird, your head cranked off, and your carcass hung up to drain*. Please note that this article is not designed to give any specific advice concerning any specific circumstances. Readers are strongly cautioned to consult an attorney before consulting a practitioner of the occult arts.

*Adapted from a curse on the tomb of the courtier Biw at Sakkara, circa 2260 B.C.

Law Offices of Lloyd J. Jassin. We offer a broad understanding of the industries in which our clients operate and a network of contacts within the publishing, entertainment and licensing communities. Clients gain access to all of the knowledge, counsel, and advocacy that the firm can provide. View my complete profile.

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The 'Weird Tale' Behind the Malcolm Ferguson Book Plate 
The Story of St. Columba: A  Modern Copyright Battle in Sixth Century Ireland
Books in Chains by the Late William Blades (1892) (full text version)
Biblioclasm:  The Mythical Origin, Magic Powers & Perishability of the Written Word (Rowman & Littlefield) by Marc Drogan.
Books and their Makers in the Middle Ages  (Putnam) by Geo. A. Putnam
Questionable Utility of Copyright Notice: Statutory and Nonlegal Incentives in the Post-Berne Era by TP Arden - Loy. U. Chi. LJ. 1992

Threatening Bookplate via 'Confessions of a
Bookplate Junkie' Blog