The Shakespeare Conference: SHK 24.0056 Monday, 11 February 2013
Date: February 7, 2013 10:06:04 PM EST
Subject: Re: SHAKSPER: Copyright
>What happens if these underlying sources are copyrighted? As Judge
>Richard Posner pointed out, “Romeo and Juliet itself would have
>infringed Arthur Brooke’s The Tragicall Historye of Romeo and Juliet…
>which in turn would have infringed several earlier Romeo and Juliets,
>all of which probably would have infringed Ovid’s story of Pyramus
>and Thisbe.” You get the point — without a rich public domain, much
>of literature would be illegal.
Much as I respect Posner, he is absurdly wrong about this, or, more likely, he was exaggerating to make a humorous point. Surely, he knows that Ovid is in the public domain, and would have been in the 16th Century if copyright protection as it now exists applied at the time (which it did not). In any case, copyright laws do not protect anyone’s ideas; they protect only the expression of ideas. If modern copyright notions applied at the time, it would have been unlawful for someone to publish a pirated edition of Newton’s Principia, but not unlawful to publish a treatise elaborating on the universal law of gravitation as enunciated in that book.
Shakespeare did, in fact, plagiarize in a few instances, notably the archbishop’s exegesis on the Salic Law, which is largely cribbed from Holinshed, and Enobarbus’s description of Antony’s introduction to Cleopatra, which versifies Plutarch. But basing a plays on Brooke’s Romeus et Julietta, Greene’s Pandosto, etc., is not the same thing.