If science fiction’s unofficial motto is ‘‘All laws are local and no law knows how local it is,’’ then the purest expression of that law is the ‘‘Explaining things to a Martian’’ story – a tale in which humanity’s irrational frailty and manias are laid bare because some poor protagonist has to defend our practices to an alien (it helps if it’s a wise old alien, but a noble savage or even a comic idiot will do in a pinch). Heinlein’s ‘‘Martian named Smith’’ in Stranger in a Strange Land springs to mind, but the comic side of human foibles are hardly exclusive to Heinlein.
Explaining a subject to a Martian is a particularly useful exercise where people of good will disagree bitterly about a subject on grounds both moral and practical, such as sexual mores, economic justice or spirituality. As an instrument, Martian-Explaining has a special gift for lifting and separating the spaghetti-mess of the moral and the practical into individual strands.
So now, imagine that there is a Martian peering through an instrument that lets hir (Martians get their own neuter pronoun) listen and watch us poor, distant schlubs negotiating the laws and norms by which we conduct our creative lives.
First, we need to explain to the Martian why creativity matters. On the one hand, there is the matter of legal protection: certain acts of creation are entitled to exclusive, planet-wide protection under copyright and patent treaties. On the other hand, there is the widespread consensus that creativity is a good in and of itself (this consensus has different glosses in different parts of the world). What’s more, there are social and legal penalties for misusing another’s creativity, from being shunned as a plagiarist (or a second-rate poseur) to being sued for copyright or patent infringement.
These moral and legal framings share a common philosophical root: the belief that creativity is an engine for human betterment (and possibly of divine origin). Creativity is considered the motive force behind ‘‘progress’’ – creative imagination is used to think up new technologies from cotton gins to Constitutions, from Internets to inoculations, with the potential to lift humans out of misery. Some creative expression lifts us seemingly on its own merits (a beautiful song, novel or painting), almost as though evolution left us with a latent ‘‘art appreciation’’ apparatus that gives us a rush of ‘‘this is right’’ when it is triggered.
Some creativity is less salutatory: we don’t celebrate a torturer’s creative ‘‘genius’’ and we’re often less than impressed with the creative spirit of spammers or identity thieves (though there is always the head-shaking, ‘‘Gotta admit, that was damned clever’’ moment that arises when you hear about the bank robbers who figured out how to commit the perfect crime, or the dope-smuggler who comes up with a new wrinkle on ‘‘The Purloined Letter’’).
It’s about this time that the Martian notices our distinctly contradictory relationship with copying. On the one hand, copying is inextricably tied up with this idea of ‘‘human progress’’ (itself the basis for venerating creativity). We copy the words invented by our ancestors. We copy the storytelling forms passed down to us by our literary forebears. Painters copy each others’ conventions and brushstrokes (not to mention mechanical techniques from gesso to frame-stretching). Filmmakers copy like crazy: everything from extreme wide shots to dollying in and out are techniques that were invented in living memory.
That matters, O Martian. Because generally, we frown less upon a copy when it builds on the work of someone long dead – especially when that person is anonymous. Not knowing which ingenious proto-linguist thought up the idea of a pronoun, we couldn’t possibly credit that part of speech to her. At a certain point, we stop treating each others’ creations and special pseudo-property (with all the legal and normative implications imposed by such a respect, from attribution to permission) and we start treating it as infrastructure – belonging to no one and everyone.
Infrastructure matters. Infrastructure forms the links of the chain from which we swing – someone invents language, someone invents storytelling, someone invents writing, someone invents type, someone invents publishing, someone invents trade publishing, someone invents science fiction, someone invents first contact stories, someone invents magazine columns, and then, I create this article you’re reading now. If I had to invent my own language and alphabet and commercial publishing industry before you I could claim to have created anything, I’d never get anything done, and all the magazines would be full of blank pages because all the writers would be so busy inventing their own private creative words that the articles wouldn’t get written.
Ah, says the Martian, shaking hir tentacles. But you also treat things as infrastructure when it has a known creator and a recent origin. No one calls a novel ‘‘A Cervantes-style novel.’’ No one calls it ‘‘A Capek robot.’’ No one says ‘‘sci-fi, in the in Ackermanian sense.’’ We don’t call mysteries ‘‘Poe mysteries.’’
At this point, the human interlocutor starts to squirm and spin. It’s not plagiarism to fail to acknowledge Capek’s coinage of ‘‘robot,’’ because you’re certainly not passing it off as your own. And it’s not theft, because, um, because it would be inconvenient to have to pay people to use words, even valuable invented ones – unless, of course, you’re George Lucas demanding that you be paid for the use of ‘‘droid’’ or the Dick estate wanting the right to prevent Google from calling its phone the ‘‘Nexus One.’’ On the other hand, Capek is dead and couldn’t afford a lawyer, and Lucas is a heptillionaire with an army of slavering attack attorneys penned up on Skywalker Ranch and if he doesn’t exercise them periodically, they turn on one another. And don’t get me started on what Google would do if you made a science fiction movie starring adorable robots called Googles.
Besides, the idea of using a novel as a form for a story isn’t the same kind of invention as writing a specific novel. We should be able to copy the idea of a foundling raised by apes, or a Martian princess (you should excuse the expression) or a little magic shop or a first contact, but the specific words used to convey that idea are the kind of creativity that demands protection, for moral and economic reasons. After all, you feel ripped off if someone copies your words, and you might not invest the time in writing if you couldn’t prevent unauthorized copying once you were done.
The Martian is confused. After fondling hir appendages pensively, Ik’Spirpat (that’s hir name) asks about fan-fiction: legally, fan-fiction exists in a weird limbo of quasi-illegality, and what’s more, there’s a widespread belief that fan fiction is a lesser form of work. But fan-fiction’s crime is treating ‘‘real’’ fiction as infrastructure. Someone wrote the first ape-man story, but you’re still a real, bona fide creator if you write an ape-man story of your own. But write a Tarzan story and you’re one or more of: a plagiarist, a copyright infringer and a mere fanficcer. Unless you’re doing something arch and critical with your Tarzan story – say, using the characters to explore the race and gender in early XX Cen adventure stories, in which case, it’s original again.
Couldn’t we guarantee a steady supply of fan-fic by allowing them the same liberties that fiction writers are invited to take with robots, first contact, novels, language, three-act stories, and literary devices? What is special about inventing this tiny piece of the chain that entitles it to special treatment and makes that which builds upon it less creative?
Umm, we say. Umm. Well. Uh, copyright recognizes expression, not ideas (but we still let people copyright characters as well as trademarking them, though this is an admittedly new wrinkle).
But why does it recognize expression and not ideas?
Because no one would come up with expressions unless you gave them exclusive rights to them.
Except for fan-fic writers, who’ll risk censorship, fines, disapprobation and worse to create.
Well, fan-fic isn’t properly creative, not like a real story.
The Martian makes an awkward noise with hir suckers. I don’t mean to offend you, but that seems pretty circular. It sounds like you’re saying that we need to give exclusive rights to the kind of work that people who value exclusive rights typically make, and because those people won’t create without exclusive rights, they should get them?
Sort of, you say. It’s complicated.
But mightn’t there be a similar class of creators for all those things you treat as infrastructure? Maybe there’s someone who’d come up with a literary form as great as Cervantes’s novel if she could be assured that she’d get the exclusive right to it for life plus 70 years. Maybe there’s someone who’d come up with neologisms a hundred times as cool as ‘‘robot’’ if you’d give him the right to charge rent on those cool words. And if you discover such a wordsmith or form-inventor, it seems like consistency demands that you would treat his works as the real and valuable coinages and literary forms, and treat the stuff that people make for free as second-rate – demonstrably inferior because people are willing to invent them without exclusive rights!
Well, maybe if my grandma had wheels she’d be a rollerskate, you say, but it’s not much of a rejoinder.
This confuses me, says Ik’Spirpat. I sense that I am upsetting you, Earthling. But if you’ll permit me one more question, I’d appreciate it.
Sure, you say, but make it quick, OK? My oxy-bottle is running low. (You conveniently don’t mention the spare in the Mars-rover).
Well, the thing is, there’s lots of debate about the true creator of practically every great invention – multiple people who can credibly be said to have invented detective stories, televisions, competent man heroes, first contact, robots, you name it. It seems like everything great gets invented independently and repeatedly. Doesn’t this suggest that creation isn’t a personal phenomenon, but a societal one? If six people come up with radio at the same time, isn’t it fair to say that ‘‘radio is in the air?’’
You snort. No one who’s ever created something really wonderful would say that. When you create, it’s clear that it’s coming from your own head.
The Martian shakes hir tentacles again. I hate to contradict you, but you know, back when I was watching the ancient Babylonians invent their creation myth – which was shamelessly cribbed by the Hebrews for Genesis, you know, I saw that they believed their story must be right because it was so weird to be thinking something up that it must be God putting it in their heads. I admit that this has never rung very convincing for me, but isn’t it just as valid as, ‘‘But I know my creation is my own?’’
I’d love to talk some more, you say, but the old oxygen’s running out. Lovely chatting though. See you next time I’m by, all right?