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Copyright and Cultural Heritage: “About Jenga” (Part 1)

Posted on Saturday, Oct 3rd 2009

By Guest Author Leslie Scott

[Many readers may have been surprised to learn in my recent interview with Henk Rogers that the rights to Tetris were originally owned by the Russian Ministry of Software and that it was no easy task for Rogers to obtain them. But of course all games, whether high-tech, low-tech or somewhere in between, are serious business. Leslie Scott, creator of the popular game Jenga and author of “About Jenga: The Remarkable Business of Creating a Game that Became a Household Name”, kicks off a series of excerpts from her book with some thoughts on the complex maze of copyright issues.]

When we devised and published Ex Libris: The Game of First Lines and Last Words for the Bodleian and the British libraries, my business partner, Sara Finch, and I had a number of interesting encounters with copyright. At that time (1991), copyright lasted for just fifty years beyond the life of an author. Nevertheless, a large portion of the works we wanted to include in the game still fell within copyright and we needed to seek permission from either the author or the beneficiaries of the author’s estate. Where authors were extant, we generally wrote to their agents for permission to quote the first and last lines from a work, explaining that the Bodleian and British libraries were to receive royalties from the sale of the game. In most cases we received favorable replies granting consent without onerous conditions.

For example, Barbara Cartland, the queen of romantic fiction and Princess Diana’s step-grandmother, stipulated that she was delighted for us to use her work in return for which she would be thrilled to receive a copy of the game once it was published. We sent her a handwritten thank-you note and two copies of the game hot off the press and wrapped in bright pink tissue paper, fluffy pink things being Miss Cartland’s trademark.

Late one Sunday evening I received a phone call at home from a Jack Higgins, whose name I couldn’t place until he said, “I have your letter requesting permission to quote from The Eagle Has Landed. I’m flying out of the country tomorrow morning and thought it easier to ring you than write a letter. You see, I hate writing. Anyway, I just wanted to say ‘Yes, go ahead; fine by me.’ People are forever plagiarizing my work, so why shouldn’t you? At least you had the courtesy to ask!”

When anyone demanded payment—there were very few who did—we quietly dropped that author and book from the game, usually without much regret. However, in the case of Agatha Christie (1890–1976), excluding her work from the game was a tough call. Not that we had much choice. Agatha Christie Ltd, a company she had set up herself in 1955, refused us permission to use any of her work. Period. No amount of pleading our case had any effect. The company, headed up by Christie’s grandson, Mathew Pritchard, fiercely and profitably (it earned $5 million in royalties in 1990 alone), guards the intellectual property rights it owns to Agatha Christie’s body of work.

Given that Ms. Christie once described herself as “a sausage machine” and confessed that she wrote “exclusively for money,” she would in all likelihood have approved of her grandson’s mercantile and unsentimental defence of her literary legacy.

The economist and journalist, Victor Keegan suggests that a discussion about the nature of copyright is long overdue (“Why piracy isn’t such a bad thing for music,” Guardian, March 27, 2008). His particular bugbear is the music industry, which he claims has a “misbegotten attitude” to what should be the proper balance between the interests of consumers and those of “corporate lobbyists” who have succeeded in extending copyright in the United States to a “ludicrous” 70 years after the death of the creator—something he says is wrongly “capitalizing on the work of the long-dead.” Keegan goes on to say that objective studies (though he does not specify from whose perspective these studies may be considered objective) of the economic consequences have found that a period of 14 or 15 years would balance the rights of owners against the economic benefits of allowing other creative artists to rework existing copyrights. Patents, he says, now have a limit of 20 years, which gives the corporation that paid to do the work and patent it the time to make a decent return while enabling them to prepare to exploit the patents of their rivals when they expire—to the benefit of consumers.

Especially in the light of the rise of plagiarism on the Internet, views on this issue are often polarized, ranging from people who believe that the best way to nurture creativity is to support laws that protect people’s creations, to those who reject outright the very concept that ideas and creativity should be owned or regulated at all. I find myself plonk in the middle of this debate, yo-yoing from one pole to the other depending on the particularities of a given case.

On the one hand, I feel wholly justified in wanting to protect my rights to own and benefit financially from any property I have purchased (my home) or created (my games) for at least as long as I am alive. Both were acquired as the results of my own labor and a willingness to take risks. And, despite what I consider my leftish leanings, I think the heirs to my estate, my husband and children, should be allowed to inherit and benefit from all my property—intellectual or otherwise.

Yet, on the other one hand, I confess to being irritated when I could not include a quintessential English author’s work in a game supported by the British Library, which was, in a sense, an anthology of quintessential English writing, just because of the hard-nosed commercial stance taken by the copyright owner. And I was equally, if irrationally, annoyed when I found out that to be allowed to quote from Winnie the Pooh, in Bookworm, a children’s game we produced for Oxford’s Bodleian Library, I had to seek permission from that most American of American companies, the Disney Corporation. Interestingly, unlike Agatha Christie Ltd, they graciously granted permission—and without charge. It surprised me to discover later that Disney had bought the rights to Winnie the Pooh in 1961, less than ten years after A. A. Milne died; thus Pooh was technically already an American national when I, as a child, adored him for being so essentially English.

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