Randy Barnett, enjoying a new authorized remix of a bunch of Beatles music, frets that we can’t have more of the same because of bad old “intellectual property”:
IP is supposed to create incentives for innovation. Here, as elsewhere, it is suppressing innovation. I know the counter arguments: The Beatles songs would not exist in the first place if not for IP; nor would this mix. And they deserve recompense. And they should be able to control the quality of derivative uses lest the value of their property be diminished, etc. I know the drill.
I also know the responses. The Beatles would not have created music unless compensated untold millions? Cirque Du Soleil would not have need a sound track for their show? Unlikely. They would not have created music unless their decendents were made millionaires many times over? Hardly. They deserve to control all derivative uses? What about the writer of the poster on which “For The Benefit of Mr. [Kite]” was based and his or her deserving descendants?
He then goes on to criticize the abuse of IP, especially copyright, with which I certainly agree. But he doesn’t really wrestle with what the right to make derivative works really is all about.
Barnett also puts himself in the position of “price second-guesser” as to what he thinks the proper price for owners of original works “should be” before they authorize the creation of derivative works. I suppose his rationale for that is that intellectual property isn’t “really” “property” at all, and perhaps he’s right.
I don’t believe, however, that this means the price mechanism is to be uncoupled merely so we can innovate utilizing other peoples’ creative works. Perhaps the Beatles wouldn’t have needed untold millions to write their brilliant music; but perhaps they would have, before, for example, making the massive investment, for its time, that the production of the Sgt. Pepper’s Lonely Heart’s Club Band album entailed. Where do we draw that line? And since we’re asking how much the Beatles really “need” in order to be the Beatles, how much do we “need” in order to listen to remixes of “Good Day Sunshine”?