Our latest Freakonomics Radio podcast is called “Who Owns the Words That Come Out of Your Mouth?” (You can download/subscribe at iTunes, get the RSS feed, or listen via the media player above. You can also read the transcript below; it includes credits for the music you’ll hear in the episode.) The episode is about (heart, be still!) copyright law.
The episode begins with a conversation between Stephen Dubner and Barry Singer, the proprietor of Chartwell Booksellers in New York City. Chartwell is the world’s only Winston Churchill bookshop. (It’s also the name of Churchill’s estate in Kent.) Singer is an author, too, and he has recently published a book called Churchill Style: The Art of Being Winston Churchill. The book details the well-appointed life that Britain’s most storied Prime Minister was known for: expensive cigars, Pol Roger champagne, crested slippers, custom jumpsuits from Turnbull & Asser — black for evening wear; gray pinstripe for day.
What’s not so well-known about Churchill is the tenacity of his estate when it comes to protecting his copyright. If you want to write a book about Churchill and quote him, or just about any member of his family, in fact, you have to pay – a pretty pound sterling. According to Singer:
SINGER: I used 3,872 words of Winston Churchill’s in the book. And that cost me £950, which is roughly 40 cents a word.
Now, stringent copyright protection is by no means unique to the Churchill estate. In this episode of Freakonomics Radio, we learn why British laws are as they are, and what’s being done to change things. Rohan Silva, senior policy adviser to Prime Minister David Cameron, tells us that Britain’s archaic and arcane copyright law has had far-reaching consequences:
SILVA: Our view is that, unless we reform the intellectual property system in the U.K., we’re really going to be at a disadvantage in the digital age. One of the prompts for doing this work on intellectual property actually came from the founders of Google. We were having a coffee a few years ago with Sergey Brin and Larry Page, and they said to us that their lawyers happened to be looking at the intellectual property regime in the U.K., and they thought that they actually couldn’t have started Google in the U.K.
You’ll also hear Steve Levitt’s surprisingly un-economic take on copyright law, and his estimation of the value of the words that come out of his mouth.
[MUSIC: Sir Edward Elgar; “Cello Concerto in E minor, Op. 85: 3. Adagio” (from Elgar Conducts Elgar - The complete recordings, 1914-1925)]
Stephen J. DUBNER: Let’s play a piece of Churchill speech. We’ll worry later about how much…
Barry SINGER: Whose tab it goes on.
DUBNER: Yeah, exactly.
CHURCHILL:…We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, and if, which I do not for a moment believe, this Island or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British Fleet, would carry on the struggle, until, in God's good time, the New World, with all its power and might, steps forth to the rescue and the liberation of the old.
DUBNER: So first of all, astonishing language. I mean, you know…
SINGER: Which he crafted meticulously. There wasn’t a comma, or even a breath that I don’t think was choreographed in advance. He was a performer as a speaker.
DUBNER: Now, Churchill coined…A number of things that Churchill said throughout history have become ingrained in our language: “Never, never, never, never, never give in.” Is it?
SINGER: Give in.
DUBNER: Do I now having said those words on this program need to send a check to somebody, how does it work?
SINGER: Yes, I think you should send a check to me and I’ll forward it.
DUBNER: Thank you.
ANNOUNCER: From WNYC and APM, American Public Media, This is Freakonomics Radio, the podcast that explores the hidden side of everything. Here’s your host, Stephen Dubner.
[MUSIC: Vunt Foom; “Beatcutter” (from Sub Valve Release)]
DUBNER: So Barry Singer, welcome.
SINGER: Thank you.
DUBNER: I know you, in fact we’re old friends, I think it’s safe to say we’re friends.
SINGER: For sure.
DUBNER: Barry Singer is a writer, the author of several books about music and the theater. And, for the past 30 years, he’s also run a shop in New York City called Chartwell Booksellers. It’s a regular bookshop, but it specializes in Churchilliana—that is, books, manuscripts, and artifacts that relate to the long and storied life of Sir Winston Spencer Churchill. Chartwell, in fact, is the name of Churchill’s home in Kent, in South East England. Despite knowing a great deal about Churchill and despite having written several books, it wasn’t until recently that Barry Singer himself wrote a book about Churchill. It’s called Churchill Style: The Art of Being Winston Churchill. And in the course of writing the book, something strange happened, something having to do with Churchill’s estate, and money and Barry Singer. But before we get to that, let’s hear a bit more about Churchill himself and his well-appointed life.
SINGER: I love the fact that away from his life he nurtured himself, it seemed to me, in a very holistic and fascinating way so that he had the strength to weather all the defeat that was actually part of his career. Churchill lost I think at least, I think five elections, at least five elections in the course of his career. He was constantly swatted down, he was constantly dismissed including at the end of World War II, before the war ended he was voted out of office as Prime Minister. And I believe that the life that he created for himself away from politics was the source of his strength. And that included everything from how he dressed, he liked comfortable clothing.
DUBNER: The jumpsuits that the designed.
SINGER: He designed a jumpsuit for himself that he could zip down to the floor so that he could step out of it. Pretty amazing. Had it made up in all these different fabrics, he had a dress one, and he had one for painting, and he had one with medals. Everything he wore was bespoke. Obviously he was into very fine fabrics and things like that, but at the same time, he built Chartwell. He kind of renovated it with his own hands, obviously with the help of professionals. But he was in there designing and creating, re-creating the house himself. So he was very much a hands-on, fix-it sort of personality.
DUBNER: Let me lead you on a tangent just for a minute because it gets to where I want to go with you eventually. Let’s say somebody listening to this knows nothing about Winston Churchill. They know that he existed, that he was prime minister of Britain during the war, and he did some other stuff, okay? One would assume that he was a fabulously wealthy human being. One would have assumed, however, wrongly. So talk about, you know, there’s a lot in your book about money, what it meant to him, how he used it, how he was in some ways very savvy. But also he lived like a king not on a king’s salary. So talk about that for a minute.
SINGER: You have to remember that his father was the son of the Duke of Marlborough, but he was not the inheriting son, so he came away from that with nothing. He was also kind of frivolous with money himself, so Churchill inherited only for the most part his father’s debts. But he wrote. He figured out early on that the only thing that he could do to make money quickly was to write. He was a very good writer.
DUBNER: Had Winston Churchill not gotten into politics, had he not finally won an election and eventually become PM and all these other things, any idea what kind of career he would have had as a literary figure alone?
SINGER: He won the Nobel Prize for Literature.
DUBNER: No I’m just saying…
SINGER: I think he was a good enough writer that he would have become, he would have remained a writer I think. But it’s also important to point out that he joined the army in order to get into Parliament. He knew that he wanted to become a famous war hero, war correspondent so that he could run for Parliament. He always wanted politics, he always wanted to do what his father had done and best him. And you have to remember also that until the 1920s, Parliament, nobody was paid a salary who served in Parliament. So there was no money in it. Mostly you had to go in there with your own money.
DUBNER: Okay, so here’s a young man who had his sights set on politics, saw the military and writing about being in the military as an avenue toward that goal, everything works out, he gets that goal, he becomes a politician, the story goes on. Had he been only a writer he probably would have been, as you say, a very successful writer and probably would have made plenty of money to sustain what he wanted to accomplish. Talk for just one more minute then about him for the rest of his life, and money, and where the money came from to support himself during and after politics.
SINGER: First of all, the money came from the writing. But he then spent it. He spent it liberally. He spent it on Pol Roger champagne, which he bought in staggering quantities. And vintages that he preferred he bought out. He would buy everything that he could find. And he bought cigars…I have bills…The Churchill archives have preserved…He saved everything, so the Churchill archives in Cambridge have everything, all of the bills. So you can see what he was buying from nine different cigar emporiums all across London. And it’s an unbelievable—thousands of cigars. But when he got into trouble, he took investment advice from a number of important people. And he was close to the Rothschild family. His father had been close to the Rothschild family. But some of these people bailed Churchill out when he got in too deep
DUBNER: Churchill himself died in 1965, yes?
DUBNER: He was an old man.
DUBNER: Ninety. Did he die a rich man? Did he leave a whole lot of money to his heirs?
SINGER: He did not. One of the reasons that Churchill was able to stay on at Chartwell, which he would have sold I think after the war because it was just too expensive to maintain, is that again, friends of his stepped up and said we will buy Chartwell from you. We will raise subscriptions to buy it from you. And you will be able to live there at a very nominal rent for the rest of your life. And when it’s done it will become a national trust property and a museum. And that’s exactly what happened, and that’s why the building is preserved today and is very much as it was when he left it because he lived there until the day he died. And then Clementine lived there and then it was turned over to the National Trust. So he didn’t have much to leave to his grandchildren, except the copyrights to his works.
[MUSIC: Russell L. Howard, III; “Get Busy”]
DUBNER: Coming up on Freakonomics Radio: What is the going rate for a word once written or spoken aloud by Winston Churchill?
SINGER: I used 3,872 words of Winston Churchill’s in the book. And that cost me £950, which is roughly 40 cents a word.
DUBNER: Hello, British copyright law! And, it turns out, Barry Singer is not the only one who doesn’t like it:
Rohan SILVA: We were having a coffee a few years ago with Sergey Brin and Larry Page, and they said to us that they’d been looking at the intellectual property regime in the U.K., and they thought that they actually couldn’t have started Google in the U.K.
ANNOUNCER: From WNYC and APM, American Public Media, this is Freakonomics Radio. Here’s your host, Stephen Dubner.
[MUSIC: Cale Pellick; “Sunday Stroll”]
DUBNER: So Barry Singer, proprietor of a New York bookshop that specializes in the works of Winston Churchill, is writing a book about Churchill, to be called Churchill Style. He gets in touch with the literary agency, Curtis Brown, which oversees the Churchill estate.
SINGER: I contacted them to let them know that I was doing this book and was surprised to learn, they told me, that any word of Churchill’s either written or uttered in public was copyrighted by the Churchill estate, and that I would have to pay a royalty to quote from Churchill.
DUBNER: Now, it should be said that Barry Singer, as a dealer in old Churchill books and artifacts, is quite friendly with the estate, Churchill’s children and grandchildren. He has done business with them; they’ve visited his shop in New York; he’s visited them in their homes in England. So he wasn’t expecting to pay merely to quote Churchill in his book.
SINGER: I was shocked. What I assumed was that as we’ve all written quoting throughout our writing career you abstract a certain amount of words, and you don’t necessarily quote an entire book, but you can quote selected passages.
DUBNER: Right, there are laws…fair use, it’s called.
SINGER: Fair use.
DUBNER: So tell me what you began to learn about the United Kingdom’s fair use, or somewhat fair use law.
SINGER: Well there is no fair use law in the United Kingdom. It’s every man for himself in the United Kingdom. And the way it was explained to me was the Bill of Rights, that free speech in the United States, because it is in the Bill of Rights, you are actually allowed to quote more liberally than you are in the United Kingdom, which has no Bill of Rights. And the Magna Carta did not guarantee that anybody could quote whatever they wanted to, or that anyone, that there was…I don’t quite get it. I still don’t think…And I actually had an attorney here who said to me, you know, I think that you could push this if you wanted to and I don’t think they have a leg to stand on.
DUBNER: Push this meaning write whatever you want, include the Churchill quotes…
SINGER: And let them come after you, and I think you would win the case in court. However, I have as I say, warm relations with the Churchill family and have no interest whatsoever in crossing them or doing anything that they don’t want me to do. And I did go to members of the Churchill family and say to them, is this real?
DUBNER: Give me a specific. You’re saying like…For instance, a speech, let’s say, right, that Churchill has made. And you’re saying you’d like to quote whatever, 20 words, 50 words, 80 words, from the speech. The agent has told you, yes you may license his words via me on behalf of the estate and it will cost you what, x cents a word?
SINGER: Five hundred pounds per 1,000 words quoted.
DUBNER: Oooh. So you, as a writer of a book about Churchill, if you want to include quotations from Churchill, even if those were made while, let’s say, he was Prime Minister, before Parliament, you would have to pay the Churchill estate nearly a buck a word.
SINGER: That’s right. As long as it was delivered…Seventy years was the statute of limitations. And 70 years did not apply if it was the first time any of this was being quoted.
DUBNER: Interesting wrinkle.
SINGER: It’s an interesting wrinkle. That surprised me.
DUBNER: So when you learned that every time you would quote Churchill himself, whether from public or private writing from speech in the book that you’re writing about Churchill, how did that affect your writing of that Churchill book then?
SINGER: I cut every quote to the bone. I was shaving quotes. I was cutting participles.
DUBNER: You didn’t have to pay for ellipses.
SINGER: The ellipses were flying. I was cutting like crazy. I tell you also that every member of the Churchill family it applied to as well. So I had quotes of Clementine, and the rate of Clementine was higher than the rate for Winston.
DUBNER: And I’m guessing that Clementine went out the window in your book then.
SINGER: She was gone. And I wrote to Curtis Brown and I said if you do this, Clementine will be eliminated from the book as a voice; I’ll just paraphrase her. And they said to me, be careful about paraphrasing. But I did. God knows I hope that they still like me over there, but this is the fact. This is what happened.
DUBNER: Okay, I want to know then if you’re will to say how much you had to pay. So the way book writing works, for those who don’t know, if typically an author will get an advance, which is an advance against royalties. So if your book sells a lot, your publisher will get the money back that they paid you in the advance, and then you’ll start sharing profits. But the author gets and advance that you use to fund yourself to do the research and write the book. Do you want to say either or both how much you had to pay to the estate, the Churchill estate, and or what share of your advance it constituted?
SINGER: Well, I do know, because of the contract that we ultimately signed that I used 3,872 words of Winston Churchill’s in the book. And that cost me £950, which is roughly 40 cents a word. So they did…
DUBNER: Oh, they gave you a nice break.
SINGER: They did bring it down somewhat. I can to tell you that my entire advance went to photo and word rights in the end.
DUBNER: Do you regret, therefore in any direction having written the book?
SINGER: No, no. I’ve never…Unlike Churchill, I have a day job, because I have never written entirely for money. I really wanted to write this book, and I’m really glad to see it. And the rest is the future, maybe it will generate some money, but all the advance money went into the book.
[MUSIC: The Soulphonics; “Used Me Again” (from Used Me Again)]
DUBNER: For the record, we did contact the Churchill estate and its literary agent; neither of them wanted to speak for this program. Now, if you’re a writer, like Barry Singer, who has been trained in American journalism, the idea of paying to quote the words of a public official may seem strange. But just because you’re not accustomed to something doesn’t necessarily make it wrong, of course. Rules differ, laws differ, estates differ. James Joyce’s grandson, Stephen James Joyce, is so protective of his grandfather’s words that he is the bane of many a Joyce scholar.
The estate of Martin Luther King, Jr. charged about $800,000 for the use of his likeness and words in the new King memorial in Washington. Now, every case is different. A public memorial is not the same as a book, which is not the same as a TV commercial. The U.K. is not the same as the U.S. As most scholars will tell you, U.K. laws are much more protective, and, as a result, much more convoluted, on many levels. So much so, in fact, that the Government has gotten involved.
DUBNER: So Rohan, this conversation began when I was visiting you in London, I told you about this friend of mine. I don’t know if you remember this conversation at all about Churchill, my friend writing the Churchill book?
SILVA: Churchill, yeah, absolutely, I remember it well.
DUBNER: Rohan Silva is a senior policy adviser to British Prime Minister David Cameron. He covers a lot of ground, including reform of Britain’s archaic copyright system.
SILVA: Well, I think the big point to make is that the British system doesn’t have a very specific characteristic that the American system does. You over there have fair use exemptions in intellectual property. We just don’t have those in the U.K. So some of the kind of examples of absurdities might include medical researchers doing data mining across large numbers of data sets and patient records quickly fall foul in the U.K. of copyright laws. Another example is that we’ve had lots of cultural institutions, museums and galleries coming to us saying we’ve got tapes, old videotapes, spools of tapes rotting in our basements because we can’t digitize them, because in digitizing you are changing the format, which require permission from the copyright holder. And with a lot of these old 1920s, 1930s films and recordings the copyright holder can’t be found. And so these tapes are left rotting for fear of litigation. So, you know, we really see these absurdities abound.
DUBNER: Now, it might be easy to try to minimize those absurdities, or minimize the impact of those absurdities let’s say by saying well, by thinking well these are kind of arcane copyright barriers that may be problematic for certain kinds of creators and a small group of people perhaps, but really you’ve opened it up to look at a much broader issue including innovation writ large, yes?
SILVA: Exactly, I mean our view is that, unless we reform the intellectual property system in the U.K., we’re really going to be at a disadvantage in the digital age. One of the prompts for doing this work on intellectual property actually came from the founders of Google. We were having a coffee a few years ago with Sergey Brin and Larry Page, and they said to us that their lawyers happened to be looking at the intellectual property regime in the U.K., and they thought that they actually couldn’t have started Google in the U.K. So imagine if their start up in a garage had been in London rather than Palo Alto, well the way Google works with the sort of Google Box and algorithms crawl, take a snapshot of the internet and then crawl all over that snapshot for quick search results. That kind of thing simply, you know, wouldn’t have been possible in the U.K. because it would have immediately have fallen foul of all the copyright rules in the absence of fair use provisions you have in the States. So it would really be…If a company like Google can’t be started in the U.K. because of the intellectual property rules, that’s when we really realize that this wasn’t just an arcane issue, it was really central, it is really central to our vision for the economy at large.
[MUSIC: Jessica Lurie Ensemble; “Solitaria” (from Licorice & Smoke)]
DUBNER: So the Cameron Administration commissioned a report to look into updating the U.K.’s intellectual-property regime. The report’s author, a well-regarded scholar named Ian Hargreaves, came back with three key recommendations. First, the government should create a digital copyright exchange that would make it easy for a user to find out who owns a piece of content and pay him for it. Second, the government should facilitate the use of what are called orphaned works—those rotting tapes sitting in basements, for instance—by allowing a fair-use exemption if the owner of such works can’t be found. And the third one, well, the third one is the biggie. It has to do with data mining. It would make it easier for researchers of various kinds to sort through massive piles of data. As Rohan Silva sees it, the liberalization of this copyright restriction will change the game.
SILVA: Well let me give you an example. Lots of people around the world are very excited about genomics, about an era in which whole genome sequencing is very affordable. And one of the things we’re looking at at the moment, is how large databases of anonymized whole genomes can lead to great insights for researchers because they’re running queries through these big data sets. Well there are some who believe that the economic applications of these kind of genomic databases, you know, you could be talking about a new industry worth tens of billions of pounds a year. I mean really big new industries. Companies as big as Bloomberg, and Google, and Facebook built in this space using genetic data to create new tools, and apps, and services, and medicines and treatments. Well, our concern is that unless the intellectual property regime allows you to do large-scale database queries, data mining across big databases linking critically different types of tapes, clinical records with whole genomes and so on, that entire field of innovation will be closed off. So, while some of the applications here might sound a bit, well, you know, that’s a nice thing to do, but not central to the economy, things to do with, you know, rotting bits of tape in the basement of the British Library, I can see that that might not sound central to the future of the economy. But if the intellectual property regime winds up, as we fear it is, unless we do something about it, winds up impeding an entire new area of innovation in the U.K. like genetics, like genomics, then we’ve got a problem on our hands, and that’s what we’re trying to get ahead of.
DUBNER: So what begins with a tiny little fight over a few pounds here and there to quote Winston Churchill, may result in a multi-billion or trillion dollar industry and millions of lives saved. That’s the idea.
SILVA: Right, that’s exactly it.
[MUSIC: Nasimiyu; “Dandelions” (from Rules Aren't Real)]
DUBNER: I called up Steve Levitt, my Freakonomics friend and co-author, to get his thoughts on copyright and fair use.
DUBNER: Levitt, long before you and I met, you had been writing academic papers for years, publishing them in journals. Did you ever get paid for any of those papers?
Steven LEVITT: I don’t know that I’ve ever gotten paid for writing papers that appear in academic journals, although sometimes you would get paid some nominal sum to write articles that would appear in an edited volume. So, for instance, there’s a book on crime that has leading scholars write a chapter and I probably got paid $5,000 or $10,000 to write a chapter for that book.
DUBNER: Now, but did you ever calculate the value of writing those papers in journals for free?
LEVITT: Yes, I did. And so my estimate is that for a young academic, every publication in a top peer reviewed economics journal is probably worth at least a $100,000.
DUBNER: Because publication in a top journal is going to enhance your reputation, therefore your labor prospects over your lifetime that much? That’s the idea?
LEVITT: It will help you get tenure; help you move... get outside job offers. But, in many ways, that’s probably an underestimate of the value of these top publications.
DUBNER: What do you think about your words? Let’s pretend that two generations from now you are long dead and your grandchildren administer the estate of Steven Levitt, economist and accidental author, and your words, whether from something you wrote or delivered in a lecture, are being used in some fashion that we can’t imagine today. Should they be worth anything? If so, how much should they be worth?
LEVITT: Oh, I think they are worth nothing. I try to give them away whenever I can. I mean, maybe it’s just the academic in me, but the idea that you try to own and control your words and your ideas, I think it’s both hopeless and misguided.
DUBNER: Misguided? Why? What does it produce?
LEVITT: I just think in the long run, even if your only goal is to be profit-maximizing, the idea that other people are out there, spreading your thoughts and using your words has got to be good for you in the long run for whatever returns you are trying to get. But at a deeper level it’s just, it’s um, it just... you know, I probably won’t sound like an economist, but it just seems ridiculous to try to squeeze the last penny out of every little bit of things you own. I mean, people who, you know…We do well making our books and artists do well...
DUBNER: Yeah, why is that different? Why shouldn’t…So we charge for our books, or our publisher pays us and they charge for the books, are you saying that if you want your words to be spread as freely and cheaply as all that, that that shouldn’t happen?
LEVITT: Oh, I think some people care enough about having their ideas out there that they would rather give away their books and ideas than to charge for them. I mean we are not those people; we like to get paid for our books. I think the problem that you run into with intellectual property is when people are not willing to produce the ideas in the books because there are no property rights and so they can’t get their return. So, obviously you and I are in favor of intellectual property rights and we don’t like people getting our book for nothing or Xeroxing and handing it out. Although, I’m kind of amused when people send me books from India that have been, you know, Xeroxed, you know, very low quality rip offs of our book. You know, it’s not like someone was going to pay full price for that book anyway. But I think there’s a difference between basic property rights which make it worth your while to invest in creating a work of art or a work of non-fiction, and then the idea that you get all pissy about it when somebody on the edges tries to do a little something with what you are doing.
[MUSIC: Sir Edward Elgar; “Cello Concerto in E minor, Op. 85: 3. Adagio” (from Elgar Conducts Elgar - The complete recordings, 1914-1925)]
DUBNER: So that’s the tradeoff to be concerned with. If anyone should be free to use anything that’s been created by anybody, which, in some ways, is the baseline ethos in these early years of the digital revolution, then will the incentives to create be strong enough? We won’t have an answer to that question for many years; there is a lot of history to work off and a lot of future to still be sorted out. In the meantime, I do know this: An American radio project like ours is not subject to British copyright law, or the reach of Winston Churchill’s literary agent, or his estate. Which means we can play you his majestic words, freely and for free. And thus, we shall.