The Widening Gyre: Are Derivative Works Getting out of Hand?

Abstract

The passage I have just read came to mind when I was obliged to provide a label for something that was not yet written. It was of course utterly presumptuous for me to take my title from one of the noblest poems of this century, William Butler Yeats' The Second Coming. I had an uneasy feeling from recent cases and commentaries that a certain escape from control marked the sphere of copyright. Yet if the falcon, flying high and wide, could not hear the falconer, it was not because our chief falconer, Herman Finkelstein, was any less clear in voice or acute in discernment than when he first took to this field more than half a century ago. While his primary attention has always been devoted to his clients—grateful clients, I trust—namely the thousands of composers, authors and publishers who make up ASCAP, he has ardently concerned himself with the welfare of all creative people, and with the body of law surrounding copyright that is intended to create and protect their rights. Among his contributions to the enrichment of copyright law none has been more fruitful than the essay competition that honors the memory of Herman's mentor Nathan Burkan. Generously fertilized by ASCAP, the green shoots of young scholars have produced a rich foliage of writing that has no parallel that I can think of, in the 30 volumes of the Burkan national prize papers, and the numberless law review contributions bearing the Burkan imprimatur.