This week on HU we’re going to have a roundtable discussion on issues around copyright and free culture. The roundtable will be anchored by an interview with artist and free culture advocate Nina Paley, conducted by Caro, which will be posted in a few days. We’re also going to have a guest post by Pallas, a sometimes HU commenter who has studied intellectual property law. Finally, we’ll have a guest post by Jonathan Newman, a contemporary classical composer and a bit of a free culture skeptic.
To start things off, I thought I’d reprint one of the first things I wrote for The Comics Journal way back when. This was reprinted by the good folks at Poor Mojo’s Almanac a while back, but hasn’t appeared on this blog before. Thanks to Alan Benard of Poor Mojo’s for putting in all the useful links, for updating them, and for figuring out how to allow me to reproduce them despite my tragic lack of tech savvy. (And Alan himself may appear here later in the week with links to some of his favorite mashups.)
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READ THIS AND I OWN YOUR BRAIN
This article [except for some very minor alterations] first appeared in The Comics Journal #268. The rights have now reverted to me (that’s Noah Berlatsky, the author), and so I’m releasing it to Poor Mojo’s Almanac(k) (and to anyone else who would like to reprint it) under the Creative Commons license Attribution-Sharealike 1.0. Basically this means that you can reprint the article for free, without permission, as long as you (1) credit me, and (2) make it clear that others are free to copy it under the same conditions. So, as I understand it, including this note should cover you. For more information on this Creative Commons license, see http://creativecommons.org/licenses/by-sa/1.0/
Laws mainly benefit those who can afford lawyers, and intellectual property laws are no exception. If you’re a huge media conglomerate, copyright restrictions can transform you from a humble peddler of ephemera into an intergenerational dealer in cultural crack. The public wants their lovable icons — the public needs their lovable icons — and, as the only source, you can turn that rascally rabbit into a jagged, futuristic obscenity, sneer at your customers, and still walk away with a tidy profit.
This view of intellectual property has been heavily promoted by those media conglomerates mentioned above, all of whom want you to feel that, say, illicitly downloading the latest Destiny’s Child hit single is the moral equivalent of stealing an aged relative’s food stamps. Never mind that most musicians don’t get a dime from their record sales 1. Forget that artists from Jack Kirby to Billie Holiday have been systematically screwed despite (or often because of) copyright law. The ideal remains in the mind of the public, the legislature, and the judiciary: copyright laws are designed to protect artists from exploitation.
But they aren’t. The U.S. Constitution clearly states that intellectual property laws are designed “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In other words, rights are granted specifically to promote art, not artists. Copyright law assumes that artists won’t spew forth innovation without economic incentives. To give them those incentives, we grant them exclusive rights to their products. In the 1994 case of Fogerty v. Fantasy Inc., the Supreme Court reiterated this point, explaining that “The immediate effect of our copyright law is to secure a fair return for an ëauthor’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. 2”
Nevertheless, it’s undeniable that since the post-Enlightenment apotheosis of capitalism and the printing press, the profit motive has become an important motivation for many artists. Trollope, for example, self-confessedly wrote to make money first and foremost. If copyright were eliminated entirely and he couldn’t gain a middle-class income through writing, he might well not have bothered. The same might be said of Dickens, Stephen King, and a whole host of others — or as Harlan Ellison put it in Following Cerebus #3, “What we’re looking at is the egregious inevitability of no one but amateurs getting their work exposed, while those who produce the bulk of all professional-level art find they cannot make a decent living.”
Of course, Ellison is seriously overhyping his vision of aesthetic apocalypse, and downplaying some even more important dangers. While creators can be threatened in certain situations by a lack of money, they are certainly and always threatened by a lack of access to the work of other creators. Art is built out of other art 3. Shakespeare stole most of his plots from other sources. One of Rachmaninoff’s most famous compositions is based on an idea taken from Paganini. The novelist Henry Fielding wrote not one but two novels — Shamela and Joseph Andrews — using characters lifted from Samuel Richardson’s extremely popular Pamela. Raphael, Da Vinci, and all the other old masters used images suggested by the Bible. Walt Disney used public domain folk tales for many of his classic movies. Many of Harvey Kurtzman’s greatest efforts were close parodies of the works of other cartoonists 4. And on and on. It’s hard to think of a single piece of art that isn’t inspired by, responding to, or ripping off another piece of art.
All in all, therefore, the original copyright law, passed in 1790, was a very canny compromise between the artists’ need for a financial return and his need for access to other art. According to this act, creators had to register their work with the government, making it easy to tell which works were copyrighted and which were not. Once registered, the copyright term ran 14 years. During that period, the artist had monopoly rights to publish, distribute, and/or license the work as he saw fit. At the end of that time, if the creator was still around and thought there was still money to be made from the work, he could register for a 14-year extension. And that was it. A maximum of 28 years, and then your work went into the public domain — which is to say, it could be used freely by all. In other words, if this law were still in effect, not only Superman, but Daffy Duck, Spider-Man, the Grinch, and Snoopy would be available for many purposes, free of charge, to any artists who felt like using them 5.
Now, public domain characters and works can still generate income. Publishers continue to reprint the works of Mark Twain and Winsor McCay, for example, and people continue to buy them. Nonetheless, no media mogul can build his fortunes on licensing Mark Twain properties for film adaptations, because anyone can make a Huckleberry Finn movie for free. Nor are Little Nemo T-shirts, pajamas, and lunch boxes likely to make anyone filthy rich, because if they caught on, every schmuck with a scanner could start churning them out. Multimedia assaults don’t work unless you hold exclusive, monopoly rights to a story or character.
Big media, then, has a vested interest in extending the reach of copyright — and since big media also has a great deal of money, it should come as no surprise that copyright protection has, in fact, been enormously expanded. Thus, today, you don’t need to register your work with the government; in fact, you don’t need to do anything to copyright your work — even that little "©" is unnecessary 6.
In addition, Congress has repeatedly extended the term of protection for new works, and they have generally made these extensions retroactive, applying them to works already created. Thus, if you wrote a poem in 1977, your copyright would last for 56 years. Then, in 1978, Congress changed the law; suddenly, your copyright was guaranteed until your death, plus 50 years. According to the theory of copyright in the Constitution, this is pointless, of course. Copyright is meant to be an incentive, but if you’ve already written your poem, you’ve already written your poem — more encouragement, in the form of more copyright, might theoretically get you to write another, but no one can argue that it’s going to make you write the first one over again.
However, Congresspeople aren’t elected to promote progress, or even logic — they’re elected to kowtow to special interests. This goal, at least, they pursue with unwavering dedication and skill, as they demonstrated once again in 1998 with the Sonny Bono Copyright Extension Act [.pdf]. Named for a notoriously derivative songwriter-cum-legislator and backed by all the might of Disney, Inc., this bill extended the term of pre-1978 copyrights by another 20 years. Thus Mickey Mouse, due to go into the public domain in 2004, will continue to bolster the sagging Disney brand for another generation. Almost as an afterthought, post-1978 copyrights were also extended by 20 years. A new work created today will be under copyright for the life of the creator plus 70 years 7.
One interesting thing about the Sonny Bono Act is that, in their haste to propitiate their corporate overlords, Congress has abandoned not only the goal of promoting art, but also the goal of helping the artist. Copyright now extends long after the creator is dead. Indeed, in most cases, the creator’s spouse and even the creator’s children will have expired long before the copyright does. With the Sony Bono act, then, authors can dream, not merely of fame and riches in their own lifetime, but of grandchildren and even great-grandchildren growing ever more bloated and idle as they suck, leech-like, on the corpse of their ancestor. And if an author happens to be sterile, or single, or just hates his kids, at least he can comfort himself with the thought that a giant marketing nexus will tramp forward into the next century bearing his mark.
Of course, many may covet but few will ever actually attain this level of dynastic bliss. For the rest of us, the extension of copyright ensures, not greater wealth, but more certain obscurity. Take me, for example. I’m a very minor league critic and zinester. Yet, if I live an average lifespan, this article will not be in the public domain until sometime in the 2130s. Needless to say, by that point, there is a fair chance that my reputation, The Comics Journal, and even Fantagraphics [the publisher of The Comics Journal] will all have ceased to exist.
Imagine now that, for whatever reason, some academic stumbles across a copy of this issue in some library archive in 2105, and wants to reprint my article. She will of course need to secure the rights. Remember that copyright is no longer linked to year of publication — so to determine if the article is out of copyright, our academic will need to find the date of death of some anonymous reviewer in a tiny, defunct, decades-old magazine. If she’s particularly savvy and interested, and has time and money, perhaps she’ll ask the copyright office to run a search — which may or may not be definitive, since, as mentioned above, copyrights no longer need to be registered. Alternately, she may just reprint the piece, hoping that nobody will bother to sue her. But there’s also a fairly decent chance that she’ll just say “fuck it” and forget the whole thing. This is too bad for her, obviously, but it’s also too bad for me, and for anyone who writes with the desire to have their work read by as wide an audience as possible. [Licensing this article under the Creative Commons license is meant to address some of these issues, at least as far as this particular article is concerned.]
Works whose creators can’t be found are sometimes known as “orphaned works.” As copyright is extended, orphaned works by obscure or unfindable authors become more and more common. Already, films and comics from the ’30s, ’40s, and ’50s are deteriorating beyond recovery because no one knows who has the right to restore and reprint them. This isn’t intentional — it’s a kind of accidental, bonus censorship. Indeed, it’s so clearly pointless that Capitol Hill — prodded by public-domain advocate Lawrence Lessig — has actually shown some vague interest in fixing it 8.
But the extension of copyright contributes to more straightforward censorship as well. First, copyright holders may try to stamp out works that they don’t own, if they feel that those works are derivative. This often occurs even — or rather, especially — if the derivative work is of higher quality than the original, as was arguably the case, for instance, with the original Captain Marvel.
Second, copyright holders often try to suppress controversial works to which they themselves own the rights. Thus the James Joyce estate has long worked to suppress Joyce’s racy letters to his common-law wife, Nora Barnacle.
The problems discussed above are supposed to be mitigated in part by a principle called “fair use.” According to fair use, a small portion of a work may be reprinted for educational or critical purposes, without getting the permission of the copyright holder. “Fair use” also allows artists to create parodies based closely on a copyrighted work 9.
Fair use is absolutely vital for the open discussion of ideas; without it, free speech would be seriously curtailed. For example, fair use is what allows critics to quote from the books they are reviewing — or to reprint art for purposes of discussion, as The Comics Journal does on this page*. And thanks to fair use I can tell you, despite the wishes of his estate, that in one letter James Joyce told Nora that he wanted to “fuck you up behind, like a hog riding a sow, glorying in the very stink and sweat that rises from your arse, glorying in the open shame of your upturned dress and white girlish drawers and in the confusion of your flushed cheeks and tangled hair.” 10
The problem with fair use is that its application is not clear-cut. When a magazine like the Journal prints pictures for review purposes, there is no problem, because the people who own the pictures want the publicity, and are therefore unlikely to sue. The quote from James Joyce is a different story. The passage is quite brief and is being used in a critical article. Nonetheless, there is a small chance that the James Joyce estate could sue the Journal over this quote. Printing it, therefore, requires a calculation of benefits and risks.
The Journal made one determination in this instance. But it should come as no surprise that the threat of a costly lawsuit can be very effective in keeping unseemly material under wraps. For example, David Stowe, a professor at Michigan State University, wanted to reprint, for scholarly purposes, racist cartoons from the ’40s which were run in Downbeat, a jazz magazine. Downbeat refused to grant permission, because they found the images embarrassing. Stowe (very understandably) felt that he couldn’t risk the lawsuit 11.
Stowe has professional credentials and is doing nothing particularly original — scholarly critique is a well-established genre. He had a good chance of winning his case in court. Yet copyright law effectively silenced him. What, then, is the likely fate of artists who want to use old works for entirely new purposes? What can they expect from intellectual property law?
They can expect to have their asses sued, is what they can expect. Hip hop, the most innovative musical form of the last 25 years, has been shaped as much by lawyers as by artists. Some of the greatest albums in the genre — De La Soul’s 3 Feet High and Rising, the Beastie Boys’ Paul’s Boutique, Public Enemy’s Fear of a Black Planet — used a kind of sound-collage technique, interpolating multiple brief-but-recognizable samples into each of their songs. Lawsuits inevitably followed, and the result were rules that made indiscriminate sampling prohibitively expensive. Today rap artists either use one sample per song, or else use samples that are so brief and processed as to be unrecognizable. Some performers still work in the older style, mixing and matching beats and riffs from numerous other albums — people like DJ Z-Trip — but, because they can’t release their work commercially, they are permanently relegated to a quasi-legal underground. Similarly, copyright law has crippled the growth of “mash-ups” [a.k.a. “Bastard Pop” – Ed.], recordings in which the vocals from one record are digitally placed over the music of another record: The most famous is an inadvertent collaboration between Chuck D of Public Enemy and Herb Alpert. A few mash-ups have been released
commercially, but most, for obvious reasons, have not been. When DJ Danger Mouse put out a full-length CD mash-up of Jay-Z’s Black Album and the Beatles’ White Album, the Beatles’ label, EMI, hit him with a cease-and-desist order. So he ceased and desisted 12.
But at least rap and all its stepchildren exist. Hip-hop pioneers figured out a way to capitalize on new technologies and old beats before the major labels could catch them. Copyright law has altered the genre — and undoubtedly for the worse — but it didn’t prevent it from coming into being.
If only comics could have been so lucky. Technological change has transformed the processing of images just as it has the processing of sounds. Photocopiers, scanners, Photoshop and the Internet have all made it easy to alter, combine and rework pictures and drawings in ways that would have been either dauntingly laborious or actually impossible 20 years ago. So where are the collage comics to rival ’80s hip hop? Where are the mash-ups of Dilbert and Prince Valiant? Where are the comics made up entirely of altered photographs, or tweaked advertisements? For that matter, where’s the American equivalent of doujinshi fan-fiction — a sub-industry in Japan that has contributed hugely to the popularity and creativity of comics in that country?
It’s not like I’m the first one to come up with these ideas.13 But few of them have been extensively explored, and thanks to copyright law, even fewer of them have been — or will be — exploited commercially. Meanwhile, DC and Marvel relicense the same damn stories with the same damn characters over and over again, an ongoing outburst of mediocrity enabled by federal fiat. Encouraged by copyright law, American comics treat the past like a kind of congealed, brittle monument, to be worshipped and imitated, but never used. No wonder the kids prefer manga.
1. For a discussion of what happens to a band financially when they sign with a major label, see Steve Albini, “The Problem With Music,” available online at http://www.negativland.com/albini.html. Go Back
2. Gerard Jones’ recent op-ed in the Los Angeles Times follows this same logic — comics aren’t any good, he argues, because the industry has historically failed to adequately compensate its writers and artists. See Gerard Jones, “It’s a Bird, It’s a Plane, It’s the Fading Future of Comics,” Los Angeles Times, February 15, 2005. Go Back
3. This is a slight alteration of a quote by Northrop Frye: “Poems are made out of other poems, novels are made out of other novels.” Go Back
4. I’ve always thought that Kurtzman’s parody of Jack Cole’s Plastic Man, itself a superhero parody, was one of the century’s meta-artistic highwater marks. Go Back
5. All of these characters are trademarked as well as copyrighted, so there would be restrictions on some uses. If you’re interested in finding out more about trademark law in the context of some of the issues I raise in this essay, a good place to start is the intellectual property page maintained by Negativland, a group of sound-collage artists. The address is http://www.negativland.com/news/?cat=5. Go Back
6. Registering your work with the copyright office does provide some benefits. See the government copyright office website: http://www.copyright.gov/register/. Go Back
7. A more complete discussion of the terms of the Sonny Bono Copyright Extension Act can be found at http://www.keytlaw.com/Copyrights/sonybono.htm. The controversy around the act is discussed at http://en.wikipedia.org/wiki/sonny_bono_copyright_term_extension_act. Go Back
8. See http://www.eldred.cc/. The page also has links to information about Lessig’s unsuccessful efforts to challenge the Sonny Bono act on constitutional grounds. Lessig is one of the people behind Creative Commons, an organization designed to help artists make their work available to the public domain in certain circumstances. See http://creativecommons.org/about/.
I should also note that even the mild “orphaned art” reform suggested by Lessig has caused outrage in some quarters. American Society of Illustrator’s Partnerships (ASIP) — an umbrella group of artist’s trade organization — is vehemently opposed to Lessig’s efforts. ASIP member organization Illustrators’ Partnership of America sees the new copyright environment as an opportunity for visual artists to become the Mick Jaggers of the future, making oodles of money long after they’ve ceased making worthwhile (or even any) art. IPA’s philosophy (Mick Jagger and all) is outlined at http://illustratorspartnership.net/downloads/IN_2.pdf. Their discussion of Lessig’s proposal can be found at the IPA Orphan Works Blog, under the entry for February 10, 2005. Go Back
9. For a good discussion of the extent of fair use and of some other limitations on copyright, see Susan M. Kornfield, J.D., “A Principled Approach to Copyright Policymaking [.pdf],” available online as a PDF at http://www.umich.edu/~langres/copyright.pdf. Go Back
*: [Editor’s Note: The illustrations that accompanied Noah’s article in The Comics Journal were unavailable to include here. So, go get a copy and look at them there, so TCJ can continue to help feed and clothe nice people like Noah.] Go Back
10. A little more of this letter, and a further discussion of the controversy, can be found in Richard Zacks’ An Underground Education (Doubleday, 1997). According to Zacks, the whole series of letters can be found in The Selected Letters of James Joyce, edited by Richard Ellman (Viking, 1975; now out of print, but available in many libraries). [Ed.: Joyce’s racy letters to his common-law wife, Nora Barnacle.] Go Back
11. Stowe’s problems with Downbeat are discussed in Lydia Pallas Loren’s “The Purpose of Copyright [.pdf],” published in Open Spaces Quarterly, Vol. 2, #1, located online at http://www.open-spaces.com/article-v2n1-loren.php. Go Back
12. For a full discussion of the DJ Danger Mouse controversy, see http://www.wired.com/news/digiwood/0,1412,62276,00.html [Ed.: See also Electronic Freedom Foundation: “Grey Tuesday: A Quick Overview of the Legal Terrain“.] [Ed.: See also these PMJA favorites: djbc: The Boston Mash-up Project; Girl Talk, Feed the Animals; The Kleptones; Jay-Zeezer, The Black and Blue Album; DJ Lobsterdust – Queen vs. Satan ft. pastor Gary G. “It’s fun to smoke dust”.] Go Back
13. Lawrence Lessig has talked about doujinshi and copyright in his article “free culture,” available at http://www.jus.uio.no/sisu/freeculture.lawrence.lessig/doc. In America, Paper Rad has flirted with copyrighted characters on occasion; and in a circumspect way, so has Alan Moore. See also http://castlezzt.net/, where some Garfield comics are altered. My first exposure to collage strips like this was probably 10 years ago, when I saw Nanonuts, a zine by my friends Bert Stabler and Mike Denlinger, in which Peanuts characters are hideously transformed. [Ed: See also Poor Mojo Newswire thread: “Elizabeth gets Raped in Tomorrow’s ‘For Better or for Worse’“. Anonymous message-board participants spontaneously detoured and hijacked the comics nearly effortlessly using common computer applications, until the postings were removed by the message board owner under threat of legal action. See also: Garfield Minus Garfield.] Go Back
Note: Hyperlinks added by Alan Benard, who is solely responsible for their appearance here except as included in the orginal text of the article. Hyperlink references updated March 6, 2010.
Update: You can read the whole Cuckoo for Copyright roundtable here.
“Never mind that most musicians don’t get a dime from their record sales.”
I’m tired of this line. It’s technically true, but is too often used as an excuse for stealing music (“I’m stealing from the corporation, not the artist, so it’s okay!”). Aside from the ethics of stealing, it overlooks two things: First, isn’t the company distributing the music entitled to some compensation for their work? I agree that they’re often taking more than their fair share, but surely their work is worth something, and it’s not up to you to decide what percentage the artist should pay them. Second, think of record sales as points rather than dollars. The more points you earn from your first record, the more money you can ask for when you make your second (or the next one after your current contract expires or is renegotiated). And record sales drive concert ticket sales, which the artist traditionally gets a larger percentage of.
“With the Sony Bono act, then, authors can dream, not merely of fame and riches in their own lifetime, but of grandchildren and even great-grandchildren growing ever more bloated and idle as they suck, leech-like, on the corpse of their ancestor. And if an author happens to be sterile, or single, or just hates his kids, at least he can comfort himself with the thought that a giant marketing nexus will tramp forward into the next century bearing his mark.”
If the author’s work is still popular enough that money is being made off it, what’s wrong with a portion of that money going to people of the author’s choosing, rather than whoever decides to make some money off publishing a public domain work?
I think the decision should be up to the author, or someone who has the author’s best interests at heart. Often, whoever takes the rights over after the author’s death doesn’t share the original author’s intent, as witnessed by the new books based on C.S. Lewis’ Narnia books, or the out-of-print status of a large portion of Orson Welles’ films. Your usage of the Creative Commons License for this piece, or any piece you own as author, is completely your prerogative. If I want to put something I made online for free, or charge people a dollar for it, or charge people a hundred dollars for it, or take it out of circulation completely because it’s embarrassing or inspiring copycat crimes, that’s my prerogative as owner of the work. I can even set it up so it goes into public domain when I die, if I don’t want anyone else keeping the work out of print, which might well be a smart decision as an author. But if I’m more concerned with providing for my widow than bolstering my artistic legacy, then that’s my decision. Is Garfield Without Garfield more interesting and funny than the regular Garfield comic strip? Of course. But it’s up to Jim Davis whether he wants his creation to continue to only be a bland, boring commercial property or if he’d like to allow the GWG creator (and Davis himself) to make money off GWG, just as it’s Bill Watterson’s prerogative to not license Calvin and Hobbes toys (or car window stickers). Davis wants to whore his property out, and Watterson wants to keep his art pure, and those are their decisions to make.
The current copyright laws encourage the creation of new work. Because I can’t make Mickey Mouse cartoons, I have to come up with my own ideas. Because I can’t just steal the music from a popular single by Queen and David Bowie, I have to write my own. My argument for anyone who has a story to tell that just has to be done for a specific existing character is always to bring up Watchmen. When freed from the obligation of sticking as close to the existing Charlton properties, Moore and Gibbons were able to create characters specifically for the story they wanted to tell. You can’t tell me The Question would work better in Watchmen than Rorschach does. Rorschach is all the things about The Question that will work in the story of Watchmen, stripped of anything that won’t, with the addition of details that work better. You may think it’d be better if Batman was in the public domain so you could make a Batman story that DC isn’t interested in buying, but if you take that same idea and create a new character, you have the opportunity to create something richer and more creative and original than whatever piece, however brilliant, you would’ve done with the Batman character itself. And as a bonus, you get to own it.
Another stray thought on “grandchildren and even great-grandchildren growing ever more bloated and idle as they suck, leech-like, on the corpse of their ancestor” – I don’t see any reason to assume that not having to worry about money would mean bloated idleness. Imagine if, thanks to a previous author’s legacy, Orson Welles had unlimited funding for the films he wanted to direct, instead of having to compromise creatively with Hollywood or scrape together money to make his indie films. How many more masterpieces would we have if Welles had had some ancestor’s novel-writing money helping finance his projects instead of having to waste time on commercials, forgettable Hollywood acting projects, and fund-raising?
“The current copyright laws encourage the creation of new work. Because I can’t make Mickey Mouse cartoons, I have to come up with my own ideas. Because I can’t just steal the music from a popular single by Queen and David Bowie, I have to write my own. ”
I think this is the basis for most of your argument, and as I say in the piece, it’s deeply confused. Some of the most original and creative work of the past 25 years has involved remixing and sampling.
You also seem to have a romantic idea of creation as somehow purely original. As I say in the piece, most of our greatest works of art, if not all of them, have used other works of art in ways which could quite possibly be prosecutable under our current copyright regime. Preventing artists from having access to culture doesn’t empower them, any more than kicking someone repeatedly in the head makes them stronger. In both cases, the result is crippling.
Because art relies on other art, authors don’t own their works in the way that you own a table. They rely on the culture around them to make it. They therefore should not have the right to tie it up in perpetuity for their heirs.
Not to mention the fact that, as I said, only a few artists actually benefit from copyright in any case. Mostly it benefits middlemen and conglomerates. You want to stick up for their rights, and it’s true, if a record company adds value they should be paid for it. But with online distribution what it is, it’s very unclear what exactly many of these companies are adding — and very, very unclear why they should be paid exorbitant fees for it.
Using records as a promotional tool rather than an end product was the original business model. It seems likely that that’s what we’re going to return to — not because downloaders are evil thieves, but simply because new technology has made the record companies and, indeed, physical records as objects largely obsolete.
Using the Watchmen as an example of the greatness of copyright culture and artist’s rights is pretty darn funny, considering Moore’s ongoing estrangement from DC…not to mention his enthusiastic use of public domain characters in much of his other work. The Welles example is hysterical too; why not imagine that Welle’s grandfather had been a robber baron, then? If only we didn’t have anti-trust laws — fictitious Welles’ life would have been so much easier, and that would have benefited us all!
“I agree that they’re often taking more than their fair share, but surely their work is worth something, and it’s not up to you to decide what percentage the artist should pay them”
Wait, you think the artist’s pay the music company? Don’t you have that a bit backwards?
“You may think it’d be better if Batman was in the public domain so you could make a Batman story that DC isn’t interested in buying, but if you take that same idea and create a new character, you have the opportunity to create something richer and more creative and original than whatever piece, however brilliant, you would’ve done with the Batman character itself. And as a bonus, you get to own it.”
You do know Alan Moore doesn’t own Watchmen, right? Neil Gaiman doesn’t own Sandman? Jack Kirby didn’t own the Fourth World books?
Most sales in comics revolve around old corporate characters. How would you explain that, if you think its unrelated to copyright laws?
Are the folks at Marvel and DC all uncreative hacks? Is it sheer coincidence that all of the best selling direct market books are owned by corporations, not creators?
I mean, Bendis is on the record as saying, essentially, he makes a hell of a lot more money on Spider-man that he would doing only creator owned books. Most of Bendis’s energy doesn’t go into creator owned books, but new stories with old characters. Is this sheer coincidence?
“You can’t tell me The Question would work better in Watchmen than Rorschach does. Rorschach is all the things about The Question that will work in the story of Watchmen, stripped of anything that won’t, with the addition of details that work better.”
New character= old character +1.
Got it. Nice to see you have this creativity thing worked out.
You do at least know that Watchmen simply began as a vague idea of doing something with the archie characters, right?
Incidentally, why does market evidence not support this equation? Surely Watchmen is an outlier? And, is it irrelevant that its not creator owned?
Noah –
My primary argument was that the author of the work should get to decide what happens to the work, but…
I disagree with your assertion that copyright laws don’t allow work to be a part of culture that can be used as an influence on other work. Even excepting “fair use” parody and the like, the work is still able to be used as a springboard for new work, but is not able to be copied without alteration. Cover songs, classical concerts, and new productions of existing plays can be great, but surely we want new material as well? To use your Shakespeare analogy – he cobbled together his plots from existing stories, but he didn’t simply lift entire texts that would today be protected by copyright law and present them – he wrote new plays, influenced by culture but not simple facsimiles thereof. It’s not like a copyright held on, I don’t know, The Wire keeps you from making a good crime drama series – it just keeps you from making a duplicate of The Wire. All art is influenced by culture – when it’s nothing but derivative it’s usually called “fan fiction.” And if the essays you write are under copyright, someone could still write another essay in response to it, they just couldn’t plagiarize it. Copyright laws force artists/authors to be creative about how they make new work, because they can’t just, y’know, trace it. In the creation of new work, existing culture should only be a starting point.
I think the real problem, especially in comics, is authors giving away the copyrights, not the existence of copyrights themselves. The way countless comic creators have been treated is outright shameful, and there are many others in other fields whose legacies are being mishandled (i.e. Lewis and Welles, as I mentioned before) but the answer is to give them ownership over their work, not to turn it all over to the public domain.
Scott –
You’re misinterpreting me, and I’m not sure if I understand what you’re saying, either. That Ultimate Spider-Man sells better than Jinx or Powers because it’s not in public domain and/or owned by a corporation instead of an individual? Mainstream comic fans today prefer to read never-ending series with only the illusion of change, starring characters they grew up with. They don’t care if it’s Marvel or DC or Image or Eclipse or Brian Michael Bendis who’s doing the publishing or who owns the property – they just want more Spider-Man comics.
Shakespeare didn’t work with copyright. Suggesting, therefore, that his plays are somehow an example of how copyright helps creators by forcing them to make new work seems kind of silly.
You do realize that in the article I’m not actually advocating for no copyright, yes? The article is explicitly against the current copyright regime — in which copyright lasts for longer and longer periods, in which works are retroactively copyrighted in explicit violation of the intention of the Constitution, in which the law is so complicated that many of the “new works” you are positing as unproblematic could actually get creators sued. I don’t believe copyright should necessarily be abolished, but the balance between creator’s rights and the public domain has tilted so far in one direction that it is essentially broken.
My point in bringing up Shakespeare’s plays was that I don’t believe his work would be subject to legal recourse if he were doing the same work in today’s world, because he did more than just copy the work of others.
I do understand you’re not saying everything should be in public domain, but I’m curious what specific solution you do propose. A copyright that ends with the author’s death? Ten years after the author’s death? Ten years after the work is first produced?
I apologize if I seem overzealous – today, many people don’t appreciate the idea of intellectual property at all, so it’s a difficult subject to navigate. But I see the problem as more who has been given the rights to the work than the limits to the rights themselves.
Perhaps it’s all a moot point anyway – while Disney protects Steamboat Willie, is it even possible that copyright will stop being extended?
“They don’t care if it’s Marvel or DC or Image or Eclipse or Brian Michael Bendis who’s doing the publishing or who owns the property – they just want more Spider-Man comics.”
Marvel has a monopoly on producing Spider-man comics. If people just want more Spider-man, Marvel has very little pressure to try to make good Spider-man comics, as they have literally no competition in “more Spider-man.”
You can’t simultaneously argue that copyright is magically making people like Alan Moore more creative while ignoring the fact that it’s making employees at Marvel and DC less creative.
“My point in bringing up Shakespeare’s plays was that I don’t believe his work would be subject to legal recourse if he were doing the same work in today’s world, because he did more than just copy the work of others.”
But…are you a copyright lawyer? Really, just saying you “believe” Shakespeare wouldn’t face copyright issues is pretty much completely useless. Part of the problem with copyright is that fair use is extremely vague. If someone wants to sue you, they can sue you, and then you’ve got massive court costs even if you can eventually prove you didn’t do anything wrong. It puts a damper on creativity in ways and to an extent that you’re not considering.
I think 50 years from date of production is very reasonable. I think you should have to register copyrights as well. And I’d like there to be a fee schedule rather than the current system of basically charge whatever you feel like, and/or deny permission on a whim.
This is the biggest frustration for me personally, as Noah said: “Part of the problem with copyright is that fair use is extremely vague. If someone wants to sue you, they can sue you, and then you’ve got massive court costs even if you can eventually prove you didn’t do anything wrong. It puts a damper on creativity in ways and to an extent that you’re not considering.”
The ambiguity of the fair use provision is very important because it forces the courts to make a decision on a case-by-case basis, which in theory is good because it makes statutory restrictions of the use of cultural work more difficult. Ambiguity allows for the definition of fair use to evolve in response to cultural norms and technology.
But when you combine that ambiguity with a bunch of corporations who have no interest in the work except as a cash cow, you end up with a situation where ONLY a protracted court case can determine whether or not something’s fair use, and only the rights holder can bring a case to court. So if you want to do something with culture, your two options are living in constant legal limbo or being sued. Fair use can’t really even be determined definitively by a lawyer. Add to that the sheer impossibility of getting corporate rights holders to even talk to you except through a lawyer, and the current system is stifling even of projects that meet the fair use criteria unambiguously. For artistic-use projects, even small-time ones, you can add the out-of-proportion fees corporations charge for use and the difficulty of getting step agreements. The system is set up for corporations to talk to corporations, and the rest of us can just shiver out in the cultural cold.
Also, I think it’s worth pointing out that making a facsimile of something (Michael mentioned this) and calling it your own work isn’t copying. Copying without attribution is plagiarism, and if you claim it as your own work, it’s fraud. Nobody objects to fraud being illegal. The point is that current copyright laws are at least an obstacle even if they do not outright prevent even legitimate work. No creative work is wholly original or wholly derivative; the neither/nor territory is definitely the biggest area, and current copyright makes that very difficult to navigate.
I’m sure Nina Paley would love us all to go watch her latest short film:
ALL Cultural Work is Derivative (note my emphasis on the “all”).
I’d write more, but I — seriously, swear to God — have a meeting with a copyright lawyer about the fair-use project my non-profit is working on. :-|
Yeah…I mean, have you ever dealt with copyright or rights issues yourself, Michael? I’ve done so for a number of work projects over the years, and it’s incredibly frustrating, for all the reasons Caro describes.
I was just talking to a documentary filmmaker about getting rights. Documentary work is just a nightmare because of this stuff.
“Never mind that most musicians don’t get a dime from their record sales.”
I’m tired of this line. It’s technically true, but is too often used as an excuse for stealing music (“I’m stealing from the corporation, not the artist, so it’s okay!”). Aside from the ethics of stealing, it overlooks two things: First, isn’t the company distributing the music entitled to some compensation for their work?
So you’re tired of that line, are you Michael? Well, try this one on for size, then: I’m a music creator who’s not been paid on records sold in the U.S. for ten years, simply because the record company felt like keeping that money. So maybe you’d like to ride to my rescue on your goddamn white horse for a change? You like the word “stealing”…well if we’re going to use that term, let’s be clear about something: whoever may be ripping copies of my record, the one sure thing is that they’re not stealing from me. Because SOMEBODY ELSE GOT THERE FIRST.
Now if you’ll excuse me, I have to go rustle up a potato to eat for dinner. GOD.
Just makes me mad, that’s all…but I see I’ve lagged behind the discussion.
I don’t believe in registering copyright — if a thing’s true in fact, shouldn’t it be true in law as well? In the moment I write something, the power to copy it lies exclusively in my hands — I’m the only one with an original, and no one else knows the thing exists. At this moment I can arrange matters so that whatever happens in the future I can always prove my authorship…what more should be necessary?
Noah, that “illusion of helping the artist” thing you mention actually covers so many outrages it’s not feasible to list them all for people who aren’t directly affected. They just tune out after a while, and I don’t blame them. So my usual line about it has become “don’t pay for digital copies of songs where you don’t have to”, because putting that idea out there — the idea that there are rightsholders who are TOTALLY FINE with people downloading away to their heart’s content — is the only way to counteract the (carefully-fostered) perception that to support record companies is to support musicians…and that fans are what they both need to be supported against.
Thankfully, as far as my old U.S. royalties go, I’ve managed to be included in a class-action lawsuit…so I may not actually have to wait ’til hell freezes over to see those royalties after all!
So wish me luck!
Noah –
I haven’t, no, and probably your best point so far is that there need to be more firm lines drawn as to what is and is not legal “fair use,” not only so the courts can rule on cases, but ideally many cases won’t even go to court because they won’t happen in the first place (presumably, fewer people will break the rules if they know what the rules are). That still won’t stop litigation altogether, of course – some corporations like Disney will sue you even if you make something as clear a parody as Air Pirates.
Mandatory registration of copyrights is also an interesting idea, assuming there’s a way to make it free. But even then it could be more problematic than the current situation. Do you really want to have to register every essay you write? Or at least the ones you get paid for at some point? Because if you don’t register them and you get paid for them and then someone else comes behind you and registers them under their name, they could end up suing you for making money off your own property.
I much prefer keeping more rights in the hands of the author – if they want to deny usage based on a whim, why is that not alright? It’s theirs. And I don’t like the idea of copyright expiring within the author’s lifetime. Too many artists end up dying broke as it is, and I really don’t think we’re at such a loss for public domain material that the history of art and culture is in jeopardy. What’s it matter in the long run if Stephen King is still controlling Carrie by the time he dies? What’s the rush?
Scott –
Copyright laws keep those who don’t own the copyright in question more creative, and those who do own it can be as creative or lazy as they like. It’s not Marvel’s responsibility to make the best Spider-Man comics they can when people will buy mediocre ones, and while I’m not interested in Spider-Man comics one way or the other, it’s Marvel’s prerogative as owner of Spider-Man (whose rightful owners are Stan Lee and Steve Ditko, of course, and that’s something that muddies the waters a bit on this topic) to do with Spider-Man whatever they want – create good Spider-Man comics, bad ones, or none at all.
To more clearly illustrate the point, compare Jim Davis, Charles Schulz, and Bill Watterson, and you’ll see dramatically different ideas on what can or should be done with a copyright-protected property. But their decisions are theirs to make, and while it’s a shame Jim Davis isn’t creating anything of value, and some would mourn Schulz’s merchandising, I expect you don’t think it would’ve been better if Schulz had had someone else making a Peanuts strip concurrent with his own, I’m certainly glad Watterson didn’t have to (and isn’t having to now) compete with others when it comes to Calvin and Hobbes material (the illegal Calvin car decorations notwithstanding), despite (or especially because of) his retirement. (Sorry for all the parentheses.)
“Do you really want to have to register every essay you write?”
I’d be willing to compromise on this sort of thing…but it’s worth pointing out that artists are really quite often not rights holders. You make it sound like the Lee/Ditko spiderman situation is an exception. The truth is, though, that very often artists and writers who work for pay don’t have the rights to their work. Extending copyright in many cases means that authors can’t have any access to their work in their lifetimes.
If Spiderman’s copyright expired after 50 years, Ditko would have the chance of drawing the character again in his lifetime — and making a pretty penny off it too. (Not that he wants to, of course.) Similarly, music copyrights expiring early would often open up options for performers, who can have a hard time accessing some of their songs in many cases. The assumption that longer, more stringent copyright always, or even mostly, benefits artists is simply incorrect.
Michael: the Electronic Frontier Foundation has a
good article about why we don’t want “firm rules” about what constitutes fair use.
Also, almost no creator keeps their copyrights; if that was standard practice we wouldn’t be in the situation we’re in. Creators routinely sign those rights over to some middleman. Creators rarely even have the chance to profit from their copyrighted material directly, because of the way distribution and production works. Creators mostly profit indirectly through the ordinary business model of whatever large corporation they signed the rights over to.
Some particularly honest corporations allow the rights to revert back to the author after some given period of time, but it’s not uncommon for rights to stay in the hands of the corporation that bought them, and the corporation can then do whatever they want with them, regardless of the author’s opinion.
I have heard that copyright law in the UK works a little more like what you’re describing — that’s why Terry Nation’s credited on every episode of Dr Who that has a dalek in it — but here the creator may have absolutely no relationship with the rights-holder other than a contractual one.
To give you an idea — some places I work for the rights revert back to me immediately after publication; some the rights revert back after 6 months; some essentially want the rights forever and treat freelance work as work for hire (which is completely unethical and probably wouldn’t hold up in court…but then you’ve got to go to court.)
As a freelancer at my point on the food chain, you’ve got little if any clout to force contract changes. I’d really be better off in a lot of ways without copyright. Then I’d do the work, sell it once…and I could reprint it as I wished after that. It would be tricky I guess if somebody wanted to reprint it for a best of anthology (which happened to me once)…but the truth is, the fee for that is more in the nature of an honorarium anyway.
Argh. I’m sorry plok. That sort of thing is so depressing, not least because it happens all the time.
My friend the documentary filmmaker worked for a record company for a while, and he was talking about how they just systematically screwed bands, one after the other — basically you had to have two platinum records before you’d start seeing any money. He was saying that this company was now in its death throes because of digital downloads, etc. — and, yeah, it’s hard to see how that’s a bad thing.
Absolutely good luck.
The thing about registering is that it makes it so much easier for everybody else to find the rights holder. I’ve been in a bunch of situations where you can’t use the material because you just can’t figure out who to ask. Probably you’re right that on balance it’s best not to have to do it…..
First, I should apologize to Michael for jumping down his throat — it isn’t his fault that he’s been caught in the crosshairs of a very skillful propaganda campaign…
Sorry if I jumped down your throat, Michael!
Second…yeah, the problem of identifying rightsholders is a big one, and not likely to go away. I don’t know what the answer ought to be, but I don’t think a comprehensive registration scheme would do much more than sort of “legislate at” it. What we should really be asking ourselves is how we want things to work about fifty years down the road — for example I don’t think I’d be comfortable curtailing copyright terms without also taking additional steps to protect artists from predatory business practises, you know? Without the various copyright extensions we wouldn’t now be in a position to reflect on the Siegel case, the upcoming Kirby case…if nothing else, long copyright terms are forcing people to confront the value creators supply to businesses, and exposing the inequities involved in the maintenance of these big entertainment-media machines to a critical view. Call me biased, but I would’ve missed cheering the Siegels’ victory in court…
However I’m just tossing this off right now, so it’s entirely possible I may have just said something silly.
“I expect you don’t think it would’ve been better if Schulz had had someone else making a Peanuts strip concurrent with his own, I’m certainly glad Watterson didn’t have to (and isn’t having to now) compete with others when it comes to Calvin and Hobbes material (the illegal Calvin car decorations notwithstanding), despite (or especially because of) his retirement. (Sorry for all the parentheses.)”
I’m not necessarily advocating the elimination of an author’s ownership for life in copyright. Though really, if the copyright term was 40 years, if during Watterson’s life, someone else could use those characters, I really don’t think it would be the end of the world, certainly not worse then any number of injustices the current copyright regime causes.
Did you know Schultz didn’t own Peanuts? I recall reading that. The company was simply nice to him. I have no idea if Watterson actually owns Calvin and Hobbes.
But what we WERE talking about with Watchmen is a scenario where the creators of the Charleston characters weren’t creating things with those characters, and they didn’t own them.
I do think its not realistic to look at the 100 phoned in direct market comics each month, and the 1 or 2 independent, Watchmen type titles, and claiming that copyright is inspiring creativity.
In fact, if Bendis were to go completely indie, he could be _competing_ with a phoned in Ultimate
Spider-man each month, and losing sales to it despite any comparative difference in creativity with his indie books. Its in his financial interest to keep doing Spider-man.
The system is set up to encourage creators to phone in corporate owned works, because in the indies, they’ll be driven out of the store by the glut of monopoly owned characters, which sell merely due to the fact that there’s a Spider-man or Superman logo on it.
How many titles in the top 100 are actually creator owned? I’m guessing less than 3.
Plok, I think there’s going to be injustices perpetrated kind of no matter what — and I don’t really see who benefits from the Siegel verdict exactly. It’s nice to see DC get it in the neck, obviously, but…Siegel’s 15 years dead, and his family didn’t do anything more to create Superman than the folks at DC did. Now they all get to profit enormously off a character that should have been in public domain decades ago.
If copyright were 50 years, Siegel would have lived to see his character free of DC ownership. I think in general limiting the length of copyright to something more reasonable will at least have the effect of limiting the duration of some of these injustices.
So the Copyright clause of the Constitution — which I do realize is not ultimately as germane as the Copyright Act, but anyway, it says this: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Does anybody know — are there any other Constitutional Rights that you can transfer to another entity, the way you can your copyrights?
I bet at least part of the trick there might be that “authors and inventors” can be corporations as well as individuals….
Well, if all that’s so then why is it nice to see DC get it in the neck? The question of who benefits from the Siegel decision seems straightforward to me, even though Jerry is dead: now his family gets to profit from his creation as he was unable to, and receive the inheritance he would’ve left them if he could’ve…the sort of inheritance the people who got rich from his creation had no trouble at all leaving to their own families, though none of any of these family-members made Superman. At the same time, and (I think) more importantly for me and you and everybody else, it creates cause to see how much of its success the large corporate interest really does owe to the artists it treats as interchangeable and replaceable cogs. If Superman had gone into the public domain in 1988, we wouldn’t have seen DC fight this and lose — and I don’t remember who said it, but I like it: law and the public morality are supposed to be in contact with one another. In the Siegel case, therefore, the victory is vitalizing on a moral level…don’t you find it so?
Of course I can’t say what Siegel himself would’ve preferred…but I do see some equity there, and sometimes I just really want to see some damn equity, you know? Though it’s not the same thing as getting what I want from copyright law in general terms — that’s what it’s all about, right, getting what we want from copyright law? — it is another, equally important, thing I want for society that it’s lacking: the recognition that big profitable brands don’t have any value in them except for what’s put there by the love of artist for subject.
The very thing, that realization, that would be well-served by shortening copyright terms too, I freely admit. Hey, I yield to no one in my desire to see Wonder Woman enter the public domain! Er…present company excepted, obviously…
(God, can you imagine how socially-beneficial a public-domain WW would be? That’s the real Holy Grail of this as far as superhero comics goes, as far as I’m concerned. Seriously, forget Superman and Spider-Man…all you have to do is look around the Internet…)
But here’s the catch, a short copyright means a small window for getting compensation, and in a world where the contribution of artists is devalued what I want from copyright is not just for it to be “shorter”, but also since it’s shorter more equitable.
Forgive me for rambling on…and I am rambling, because I’m just skipping over lots of things I might say about the other parts of this article, so because I’m trying to not go on endlessly I’m probably not engaging with the larger point (or even the smaller ones) as I ought to be.
It’s nice because DC behaved like assholes, and there’s a vindictive pleasure in seeing them suffer. But…if there were 50-year copyright, they’d probably be out of business, which would also be satisfying.
Again, the thing for me about copyright is that it’s primarily meant to promote art, not artists. I think art and creativity need a strong public domain. A 50-year copyright wouldn’t be as good for Siegel’s family, but it would be very good for other artists. And Siegel himself wouldn’t have been able to create what he did without using the work of other artists (Philip Wylie, muscle magazines, etc.)
If you do work, you should get paid for it. I think that the work-for-hire contracts are essentially deceptive business practices, and companies should be liable for that shit. But, IMO, the way to redress those problems is not to strangle the public domain.
Of course, the people that screwed Siegel/Shuster all those years ago are not the same people in charge of DC now–so it’s not really the same people getting it in the neck..
On the other hand, the people there now have screwed plenty of other people in the meantime, so we can call it karma.
“Does anybody know — are there any other Constitutional Rights that you can transfer to another entity, the way you can your copyrights?”
Copyright isn’t a constitutional right. The clause says congress has the power to establish a copyright, but they don’t have to.
In any case, you can actually abridge your actual Constitutional rights by contract, now that I think about it. You can sign contracts restricting you from saying certain things or revealing certain things, and people often do. You can waive your right to not incriminate yourself. Etc.
In fact, other people can deny you rights by contract as well. A college football player should have the right to seek employment regardless of age, if he is talented enough to do an NFL job. Through collective bargaining, however, the NFL player’s union and the owners have agreed that they will deny younger than “x” collegians the right to play in the league. This has, shockingly to me, held up in court. The collegian is not part of the union yet…so he hasn’t really agreed to the contract, yet he is bound by it. I’m no lawyer, but this seems problematic. The NFL, holding a basic monopoly, is the only employer that could employ the theoretical collegian–so it’s not like he has other options. It’s clear cut “agism” —but his rights have been contracted away without him signing off… This is all so he can play in college for a minimum of three years, bring money to the university, likely not graduate, possibly blow out a knee, etc. Land of the free…
Did you know Schultz didn’t own Peanuts? I recall reading that. The company was simply nice to him.
Scott–
Schulz had absolute contractually-guaranteed control over the property. He fought for it, too, threatening to walk in the early 1960s unless he was granted it. By his own account, he couldn’t have gotten that if he hadn’t had the clout at that point to insist on it. He didn’t insist on copyright transfer because he didn’t feel it was necessary. If you can track down Schulz’s interview in TCJ 200, he discusses it there at length.
A few points about the NFL collective bargaining agreement:
1. The rule doesn’t deny players below any certain age the opportunity to play in the NFL (as it should, I think). The rule requires players be three years removed from high school. Amobe Okoye of the Houston Texans was nineteen when drafted (and was actually draft eligible as an eighteen year old having graduated high school when he was 15).
2. The rule (which used to be four years) predates the collective bargaining agreement and the anti-trust exemption. The rule has been in effect since the 1920’s (and upheld in the courts as recently as 2004).
3. I’d be surprised if lifting the requirement that players be three years removed from high school didn’t result in an eighteen year old kid or three dying on the field. An eighteen year old isn’t fully developed, and is far more susceptible to head and spinal cord injuries than a twenty-one year old. As much as I’d like to think that people should be free to do as they please, I think the rule is good (and necessary). If only baseball would figure out a way to keep fifteen year old pitchers in the Dominican from blowing out their arms trying to throw curveballs before their arms are fully developed…
Golan, do you have a source for the stat about eighteen year olds being more susceptible to injury? I’m a little skeptical, both because 18 year olds actually play sports a lot, and because fragility was a reason often cited for not allowing women to play sports back in the day. (You could well be right for all I know; I’d just need to be convinced.)
I think the real point about college athletes is that they should be paid while in college. They make a ton of money for the schools; some of it should go directly to them.
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If you can track down Schulz’s interview in TCJ 200, he discusses it there at length.
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Pages 21 – 24.
Noah, no, I don’t have any sources apart from the NFL’s claims that this is the case (and one of the reasons for the rule). In my own experience, I had to play a year of freshman ball and then a year on junior varsity in high school before being cleared by the team doctor to join the varsity squad (despite being 6-2 290 as a freshman). The idea that an eighteen year old isn’t fully developed and stands greater risk of injury against NFL competition seems reasonable to me, but maybe I’m drawing too much from my own experience to make a sound judgement.
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I think the real point about college athletes is that they should be paid while in college. They make a ton of money for the schools; some of it should go directly to them.
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I couldn’t agree more.
It is actually analogous to the way artists get ripped off; there’s this person with a talent which should in theory be bankable, and then there’s this enormous infrastructure the entire purpose of which is pretty much to separate the person from their talent in such a way that the money goes to someone else.
I guess it’s just pure alienation from labor. Almost makes you want to believe in Marx.
“If the author’s work is still popular enough that money is being made off it, what’s wrong with a portion of that money going to people of the author’s choosing, rather than whoever decides to make some money off publishing a public domain work?”
I wonder how Rudyard Kipling’s family felt when Disney started production of the animated “Jungle Book” within a couple of days after the copyright expired.
Think the Kiplings have made any money off the various licensed Disney products based on their ancestor’s PD work?
And ain’t it ironic that Disney, the champions of copyright extension, run an empire based on copyrighted versions of PD material (Snow White, Cinderella, Mulan, etc)?
But would we be better off if Disney hadn’t made the Jungle Book?
Would we be worse off if they hadn’t?
Aside from Los Lobos’ cover of the Monkey King Song, I mean…
I loved it when I was a kid, and still have affection for it, yeah. Maybe I wouldn’t like it if I saw it again, but I remember it as being quite entertaining, with a lot of creepy bits, clever animation, etc. I’d be sorry if it hadn’t been made.
Athletes play lots of other sports young, and as pros–tennis, swimming, until recently basketball, baseball…sometimes they get hurt, sometimes they don’t. Same is true of older more “developed” players–some get hurt, some don’t. At least if they DID, they would be rich–while now they can easily be hurt in college football (or wherever) and never get paid.
Yes, college athletes should be paid too…but it’s not quite the same argument, obviously.
Very good essay! I’m surprised how much i agree with your thesis and recommendations (creation + 50yr). It still burns me to see Conan announced periodically as being bought by some new production agency, after REH’s death in 1936. Another mash-up problem i’ve seen is Mystery Science Theater 3000 shows, which have underlying problems with the movies they’re based on. Some shows may never get released for that reason alone.
A friend and i discussed some exemption-based system for encouraging megacorporations to stop insisting on copyright extension law. For instance, a one-time payment of $1billion dollars and you can keep Mickey Mouse as long as you want, but the contemporaneous mid-level and lower properties would be available eventually.
Pallas (from way back in the comments) — I understand the semantic point — copyright is not a fundamental right. But the power actually given to Congress is not directly to establish copyright, either: it’s to promote the arts and sciences. The language allowing copyright, grammatically speaking at least, only limits and defines the mechanism Congress can use to exert that broader power: “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” So copyright is also not a power of Congress; it’s a limitation on a power of Congress.
You can certainly, easily, given the Copyright Act, say that copyright is something more than the “exclusive Right to their respective Writings and Discoveries,” but I don’t think you can say it is anything less.
I think Noah’s right that the reason you can sign authorial/inventor “rights” away is that, unlike copyright, Freedom to Contract is a fundamental right; however, the “contracts” offered to artists by corporations are overwhelmingly adhesion contracts that in any sane world should be subject to a higher level of judicial scrutiny and regulation. Adhesion contracts are frequently regulated when they involve services, but they usually are not when they are employment contracts, and I’m sure corporations would argue that these fall into that category. But I consider the abdication of any oversight of employment (except to claim that unions represent individuals – ha!) to be a huge failing of American contract law. Noah mentioned alienation of labor, and I think if there’s any single mechanism in our economy that makes Marx’s analysis valid it’s this one.
This problem ought to give our courts great pause — both on the grounds that adhesion contracts involving copyright are against the public interest based on the actual language in the Constitution as well as because of the unequal bargaining position of the two parties when one is a corporation and one an individual. Especially in copyright cases, it’s an appalling failure of our system to fulfill their responsibility to EITHER the public good or the weaker party in these contract arrangements.
plok –
No worries, I didn’t take it personally. And good luck on your lawsuit. But the solution, as I see it, is not for your fans to steal your music from the company who shafted you, but for the company to not shaft you in the first place.
Besides that, the line I say I’m sick of is rarely actually used because whoever’s saying it is trying to support the artist – they’re just using it as an excuse. It’s not as if they’d stop stealing music if the artist got 100% of the profits from the recording – they’d just find other excuses to steal the music. It’s not like they’re stealing the music and then mailing the artist a check.
I believe the change that should be made is more creators of the material owning the copyright, not for copyright to be weakened. “Taking additional steps to protect artists from predatory business practises” should absolutely be a priority. I’m sick of corporations making more money off work than the original author. But I don’t think the answer is “if the author doesn’t always have the rights, then NO ONE should.”
“A short copyright means a small window for getting compensation” – exactly. If Bill Watterson creates Calvin and Hobbes, and Calvin and Hobbes is still selling fifty years after the he created it, why should he then have to give up some of that money to whoever else decides to reprint Calvin and Hobbes at no cost?
I think the more you reward someone for a copyright, the more likely people are to come up with new, copyright-protected material.
Scott –
I don’t think mainstream comics is a fair example of how all this works, because mainstream comic fans buy the equivalent of classical music rather than pop music, and it’s my understanding you can sell more copies of a pop recording of new material than a classical recording of decades-old public domain material. Mainstream comics is backwards, but it has nothing to do with who holds copyrights – if Spider-Man was owned by Lee and Ditko and everything else was the same, the readers would still be buying Spider-Man comics because they’ve loved the character since childhood. Put another way – if Spider-Man was in public domain, there’d be more indie creators doing their own Spider-Man comics, and they’d get more of the money for those projects than Marvel would, but they’d still be Spider-Man comics at the end of the day, and the mainstream fans would still be rewarding (buying) those Spider-Man comics that stayed most faithful to what their idea of Spider-Man is (that is, the least creative, most conservative work).
Noah –
Maybe I’m missing something, but I just don’t see how culture has suffered by not having public domain Superman stories, for example. Authors are free to create works in comparison to Superman (there are so many legal Superman-based characters it seems unnecessary to even begin listing them), they just can’t do actual Superman stories without permission from DC Comics. They’re still able to engage with that bit of culture, they just have to be more creative about it than tracing a copy of Action Comics # 1. I don’t need more Superman stories, or more adaptations of Palahniuk’s Fight Club novel, or more Bob Dylan covers where Dylan doesn’t get a royalty. You want Disney’s Jungle Book movie to exist – great, fine. Would we be worse off if Disney had paid the royalties to make the film rather than wait till it entered public domain?
(Actually, it occurs to me that “if the author doesn’t always have the rights, then NO ONE should” could be put another way that I could, in fact, go for – that the author is automatically the copyright holder and cannot sell or give away that copyright within their lifetime. But that might not work, either.)
(Passing thought – what if the author was not only automatically the copyright holder, but also could not sign away the copyright within their lifetime/before it went into public domain? Maybe that wouldn’t work, I don’t know. I guess then you have hundreds or thousands of people owning a piece of any given movie, but that’s not such a bad idea, really, as far as royalties are concerned – it becomes more problematic if you need to have a vote on every detail of the overseas DVD packaging or whatever.)
(Oops, sorry – thought the next to last post there was lost in the internet void, so I rewrote it and posted the same thought again.)
“but I just don’t see how culture has suffered by not having public domain Superman stories, for example.”
You can’t tell, of course, because they don’t exist.
Lots of other ways to use Superman. Visual arts, for example.
Culture might also benefit in that a public domain superman would quite possibly have killed DC off. Greater copyright freedom can help get rid of monopolization of culture, which can have broad-reaching effects beyond just allowing a few characters to be public domain.
“You can’t tell, of course, because they don’t exist.”
Sure, but a lot of public domain properties DO exist, and would we be worse off if they’d had to pay licensing fees, even for work that’s been in the public domain for decades or even centuries? Not that I think someone today still needs to be paid for, say, Robin Hood, but an author holding a copyright doesn’t mean it can’t be adapted by another, it just means the author is compensated for it (i.e., Bob Dylan covers) and has some control over it (i.e., a novelist saying no to a film adaptation of their book).
“Culture might also benefit in that a public domain superman would quite possibly have killed DC off…”
But if Siegel and Shuster had the rights to Superman, as they should’ve, THAT would’ve killed DC off (or, ideally, forced the company to create more new, higher-quality work).
It occurs to me a better example than Watchmen is Astro City. Busiek is able to take whatever he specifically wants to focus on about Superman, Spider-Man, or any other aspect of an existing work, but adapts it into something new and different, and, to me, it’s more satisfying and fully-realized than if he’d just written another Superman or Spider-Man story. It’s the creative equivalent of the sampling you mentioned earlier, rather than doing cover songs. You don’t get Goodfellas without old gangster films like Little Caesar (or the nonfiction book Wiseguy it’s a licensed adaptation of), but Goodfellas is, I’d venture, a better piece of culture and art than a 1990 remake of Little Caesar would be.
I’m glad you weren’t offended, Michael.
I wish you would stop saying “stealing”, though — we’re talking about copyright infringement, not theft, and it’s an important difference. What the record company’s doing to me isn’t the same thing as what downloaders are doing to it — it’s a lot worse. In the grocery store of my music, the downloader’s taken a grape and popped it in his mouth; the record company’s taken cash from the till.
Also, a very important thing I would like to communicate to you is that the downloaders are mailing me a cheque — in fact they’re mailing me several different cheques, just by doing what they do. The people who download are avid music fans, they attend concerts and purchase records and T-shirts and sometimes even beer for the musicians, but more importantly than any of that they make new fans…and every time they do, they pay a Blank Media Levy designed to compensate artists for copying activity that can’t be monitored or controlled. Although I don’t know how much I’d be getting from it, because I can’t bring myself to take that money as long as individual downloaders are not just paying it, but also being prosecuted for what we all know they’re paying it for. And especially not if it’s my music they’re downloading, because nothing says they have to download my music instead of somebody else’s!
I mean, I’m grateful they like it enough to want to own, and even share, a copy of it! Make no mistake, that is support, and if the RIAA was interested in monetizing the Internet as a promotional resource instead of as a retail outlet, that support would translate to a couple different kinds of new income for me…but the word “stealing” stands in my way, stands between me and that new revenue.
Short form: I see downloaders as radio listeners, not shoplifters. Which is why every time someone expresses outrage that those people are getting away with murder, I always make a point of saying “well, why not join ’em?” Radio listeners successfully send money my way even though they don’t pay user fees; I don’t see why Internet listeners should have to pay anything more than that. If you don’t want to buy the CD or go to the show, I can’t make you do it by shaming or threatening you out of listening to the music…and I don’t want to do any of that anyway.
At this point I think I’m threadjacking, and I apologize for that; but it’ll all be worth it if I can just persuade you not to use the word “stealing”, Michael. Because that’s the record companies’ word, not mine. And I don’t think it’s the right word.
Please consider it, won’t you?
Also, seriously, I don’t know what I’d do without that Monkey King Song by Los Lobos.
The fees involve prevent many folks who would like to do so from covering Dylan songs.
Sampling is prohibitively difficult because of rights issues. Changes in the law have prevented hip hop from building upon some of its masterpieces, as I discuss in the article.
Plok, you’re not threadjacking. At least you’re talking about copyright instead of college sports!
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At least you’re talking about copyright instead of college sports!
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I’m a threadjacker. I admit it.
To bring the football discussion back to the topic at hand…
NFL Greed, the French Fleur de Lis and Who Dat? New Orleans Saint Fans Defend Rights to Ancient Emblem and Slogan
Noah –
I guess at the end of the day it comes down to the fact that I’d rather there be fewer Bob Dylan covers if it means Dylan not making anything off his work. After he’s dead, it’s different, but I’d rather the creator of the original work hang onto their copyright during their lifetime if that’s what they want to do.
Also, I don’t feel like there’s all this creativity going to waste because there’s not enough material in the public domain. If you can’t afford to cover a Dylan song, you can write your own (or cover a public domain song written by someone who’s dead). Sergio Leone’s first spaghetti western, A Fistful of Dollars, infringed on the copyright of Kurosawa’s film Yojimbo. Now, if Leone hadn’t done that, would we simply not have a great western directed by Leone? We have four more films that demonstrate that Leone could make westerns that didn’t base themselves on other source material. If he hadn’t’ve done Fistful, he would’ve done something else. If you don’t get the Captain Britain gig, you go and make Jack Staff, you know?
plok –
That’s an interesting way of looking at copyright infringement, but I wonder if you’d feel the same way if your record company wasn’t screwing you over. Radio stations pay for their usage of music – illegal download sites do not. Not all listeners go to shows or buy merchandise or anything at all. I’d be curious if a study has been done on this, but I’ve personally known people who just download music and don’t do anything beyond that. The same goes for movies, though to a lesser extent (though a filmmaker has less ability to make money or earn “points” outside the film itself – a filmmaker doesn’t go on tour , etc.). I saw someone post something recently related to the Nick Simmons plagiarism news item saying they download illegal scans of manga, saying they prefer to support the artist without paying. “Support” meaning, to them, only enjoying their work, but not supporting them financially and actually paying for the work that they’re doing for pay. I mean, obviously the artist wants people to get their work, but different artists have different criteria for that, and that’s their right. As I said earlier, if you want to give something away for free or charge a small amount or charge a large amount or not make it available at all, that’s your right as the creator. But it’s not a decision to be made by someone who just likes to get stuff for free. I do some creative work for free and some for pay, but it’s my decision to do so.
“I wonder if you’d feel the same way if your record company wasn’t screwing you over.
They’re screwing LOTS of people over — it could happen to me again tomorrow. It could happen to anybody. And at the retail outlet, they’re screwing you over too.
“Radio stations pay for their usage of music — illegal downloading sites do not.”
Many a downloading site would like to operate under a “radio-type” arrangement where they make payments out of advertising revenue. It’s the record companies that block this. And I might as well say that if downloading sites were licensed in this way, record companies wouldn’t be able to withhold those royalties from artists as they can in a retail context…so artists would have a strong rationale for favouring this arrangement as well. But the RECORD COMPANIES don’t want it!
(Damn copy-and-paste isn’t working again…)
As to the downloaders who don’t go to shows etc…yeah, they’re out there, but who cares? There have indeed been studies showing a great big intersection between illegal downloaders and hard-spending music fans (a result entirely expected by everyone who has a fan base of their own that they can watch grow and shrink), but if it isn’t a total overlap what difference does that make?
So what if some people aren’t buying? When I’m only interested in those that are, and I want there to be as many of them as possible.
“The same goes for movies”
I would strongly contend that the same does not go for movies, nor for comics. Nor for books of poetry, for that matter. In each business the specific details of ownership, rights, and payment are different. The conditions are different, the delivery systems are different, the PR mechanisms are different, the retail outlets are different and what is being purchased is different, the contracts are different and say different things. There’s a reason we’re not lumping in painting with these other examples, you know? Not that we can’t talk about copyright issues in general terms, but nothing makes me crazier than somebody like Dan Slott (say) telling fans that downloading a comic is every bit as wrong as downloading music. My feeling on that was, and is, that Dan Slott oughtta stick to his own field and leave me to mine…and certainly not presume to trumpet a consensus in mine that doesn’t exist, as an ethical fait accompli. Just to bolster his own point of view.
And still the main point remains, which is that no one can control copying and sharing! The only question is how to compensate for it. Blank Media Levies already provide one form of compensation. Radio royalties are another form. Considering some uses as promotional costs is another way of going about this. Actually there are ways and ways and ways, right down to the way you license, bargain, lobby the government, and do your taxes. We don’t have to just criminalize downloading and see what kind of a pot that leaves us with, we can find some other way of doing business that works better and saves on legal fees.
Michael, thank you for saying “copyright infringement”!
“So what if some people aren’t buying? When I’m only interested in those that are, and I want there to be as many of them as possible.”
Right, and if your music wasn’t illegally available for free online, some people wouldn’t listen to it at all, but some would choose to buy it instead of steal it off the internet. I understand that radio play and downloading can lead to sales, and as far as I’m concerned it should be up to the artist how the work is distributed and how much is charged for it. I think the model of giving away a single for free and charging for the album is a good one. The difference between hearing the song once on the radio and being able to play it anytime you like because you downloaded a copy off the internet is obvious. I like the idea of licensing file-sharing, and it’s a shame that record companies are getting in the way of that.
(My statement “the same goes for movies” was in reference to the previous sentence, “I’ve personally known people who just download music and don’t do anything beyond that.” I know the systems are different, but I just meant that I know people who’ll download music and/or movies and just not buy anything.)
I guess my main argument is that the problem stems further up, and we need not take it as a given that record companies or comic companies are going to screw artists. It’s not some uncontrollable weather condition – it’s something that people are doing to other people, and it can and should be stopped. THAT’S what I’d like to see change, rather than for the material go into the public domain sooner.
Again with “steal”. It isn’t theft, it’s copyright infringement. And in the model we have, that it isn’t up to the artist is indeed the problem.
“If your music wasn’t illegally available for free online, some people wouldn’t listen to it at all, but some would choose to buy it instead of steal it off the internet.”
I question the second part of that statement: downloading does generate some sales, but there’s no evidence that restricting downloading generates any sales at all — put bluntly, if my real revenue goes up in the presence of illegal downloading, it can only go down where illegal downloading is absent, no? Admittedly it would probably be more complicated to determine how this cost-benefit stuff shakes out if one was, say, Mick Jagger…but then people made a LOT of illegal copies of Stones records back in the cassette days too, and of course at this point it’s trivially easy for anyone to hear just about any Stones song they’d like to, without paying anyone a penny…even without the Internet. So when I say it’d probably be more complicated to Mick Jagger to work it all out than it is for me to work it all out, I mean precisely that: it’s not a foregone conclusion that downloading would hammer his total income even if it did reduce the total number of Stones
records sold in a year. And of course there’s never a guarantee that these wouldn’t go down anyway!
Apologies for jumping to conclusions about your “same with movies” remark…I would still say, though, that it isn’t the same: if I watch a downloaded movie for free, I’m going to be a lot less interested in going to see it at the theatre. So I think the movie people get screwed a lot harder by downloads! If only because getting the “record” makes one less likely to see the “tour”, as far as movies go.
And as far as the difference between radio listening and owning a replayable copy goes…well, I was going to say that I used to tape stuff off the radio all the time, but I think that’d just be chaff. Really the thing is that on the Internet it just isn’t hard to hear a given song whenever you want to even without engaging in downloading, and as time goes on it’s going to get easier and easier. This is where the interests of record companies and artists start to fall out of alignment with each other…so in a way it is a given that companies are going to screw artists, because both parties pursue their own benefit, and sometimes what benefits one will disadvantage the other.