THE THEFT OF CHARACTER
the growing evils of the faction industry
IN 1710 an author's copyright was for the first time recognised by statute, though he was given protection only for 28 years (the United States virtually adopted this Act in 1790). The battle to get fair rules adopted internationally took longer. Best-selling British authors like Scott and Dickens were plundered by American publishers. In turn, a successful American author like Fenimore Cooper might have his work printed in France, where 18 different firms competed to present to readers le Walter Scott des sauvages, and in Germany where Der Letzte Mohikaner was a huge best-sell- er, without being paid a cent. From 1886, under the Berne Convention, international chaos gave way to orderly arrangements. The present British system, under which copyright remains with the author's estate until 50 years after his or her death, strikes most people as reasonable. If anything it is applied a little too aggressively in some areas, especially popular music, where copyright-owners of songs and lyrics, oper- ating through sharp-eared agents, may descend fiercely on anyone who plays a few bars in public.
If we have property rights in our creative work, we have also, over the years, secured pretty well absolute rights over our labour. In one of the most moving passages in The Wealth of Nations, Adam Smith protested strongly against the old Laws of Settle- ment, which in effect prevented workmen travelling to sell their labour to the highest bidder. 'The property which every man has in his own labour,' Smith wrote, 'as it is the original foundation of all other property, so it is the most sacred and inviolable. . . . To hinder [a poor man] from employ- ing his strength and dexterity in what man- ner he thinks proper without injury to his neighbour is a plain violation of this most sacred property.' Since we made the Closed Shop unlawful, the rights to labour where, when and how a man wills, and be paid for it at competitive rates, are now, like copyright, pretty well guaranteed in law. Yet personality, which ought a fortiori to be protected, is in fact still exposed to plundering. Reputation, it is true, is recog- nised as a form of property which has a value, and if it is taken away by slander
(where damage must be proved) or libel (where it is assumed), a citizen has redress in the courts. But if profitable public use is made of his name and history, he seems to have no obvious legal remedy.
To give an example, the public figures who regularly supply much of the material for that repellent television programme, Spitting Image, do not benefit at all finan- cially. Quite the contrary: they are held up to ridicule and contempt. If the contrivers of this programme, who have obviously made a lot of money out of it, were to use a few snatches of music, say, composed by those they pillory, royalties would have to be paid. But faces, names, voices and ges- tures can be purloined free. Resort to the law of libel would doubtless be met by invoking the supposed divine right of the satirist, though it is worth noting that Dr Johnson would admit no such right. Informed that he was to be imitated on stage by the low comedian, Samuel Foote, he asked his host at a dinner party 'what was the common price of an oak stick'. Told sixpence, 'Why then, sir, (said he) give me leave to send your servant to pur- chase me a shilling one. I'll have a double quantity; for I'm told Foote means to take me off, as he calls it, and I am determined he shall not do it with impunity.' When he heard of this, the cowardly Foote changed his mind. I often wonder what would hap- pen if one of our arrogant television satirists were physically castigated by a vic- tim. Would a jury convict for assault? I doubt it. . . But short of violence there seems no redress. Denis Thatcher, that 'Strictly cash in advance, Mr Gorbachev.' admirable man, who is not even in public life, had to suffer for years the attentions of John Wells, who thus processed a private individual into a fair-sized industry. Anyone for Denis? must have made a good deal of money for Wells and others. But did Denis get a penny in royalties for having his face, character, voice and mannerisms rudely exploited?
The appropriation of personality reached a new stage with the arrival of faction, now doing a roaring trade. This week that auda- cious fellow, Julian Critchley, publishes a novel, Hung Parliament, which shamelessly mixes real and imaginary characters in what he calls 'an entertainment'. On Tues- day Thames Television presented what has been described as a 'comic drama' on the Hitler diaries affair. I dislike on principle this coarse form of television current affairs presentation, which, under a hum- bugging defence of performing a public service, blurs the distinction between histo- ry and invention and thus does a huge dis- service to truth. The Broadcasting Commission, so perversely anxious to keep religious evangelism off the air, ought to be particularly watchful about this secular form of mystification. An equally serious objection is that living people, who may be in no real sense public figures, are present- ed to viewers, and made to say and do things, as though they were taking part in a genuine documentary. The viewer is deceived and the individual concerned finds himself used and exploited without his consent.
Rupert Murdoch, played by the drag artist Barry Humphries, may laugh this kind of thing off — he has power and posi- tion in abundance. But what of others, such as Hugh Trevor-Roper, swallowed and regurgitated by the 'satirical' actor Alan Bennett, without any sort of permission? Trevor-Roper took the dignified line of ignoring the affront and is quoted as say- ing: will not be watching Selling Hitler. It is something in which I have no interest.' But should not the law give him an interest, and the means of looking after it? It is not as though such an interest cannot be quan- tified. Personal participation in a celebrat- ed event has a definite commercial value. The man who seems to have forged the diaries got 125,000 from a newspaper for telling his part in the affair. Why should a rich company like Thames Television be allowed to exploit people in this fashion without being obliged to share the boodle with them and, for that matter, get their consent? If it were to quote even their let- ters, it would be fully liable; but it can foist lines on them with impunity. Or can it? I would like to see the law on appropriation of personality put to the test. It may be that the Common Law, as so often, gives a vic- tim more protection than we have sup- posed. The issue is important because faction is a growing evil and not the least of the ways in which television soils our civili- sation.
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