"I really wanted to mention the WSJ article which has a direct counterpoint to this article.....but its so pro copyright I am afraid to talk about it" -- HSM
Intellectual Property 'Theft': Not Just for Disney Anymore
by J. L. Bryan
Mickey Mouse arrived in the 1928 cartoon Steamboat Willie, as Walt Disney became the first to combine animated cartoons with sound. It was a risk that paid off for Mr. Disney.
It may come as a surprise that Steamboat Willie could be considered copyright infringement by today's standards. Lawrence Lessig, a founder of Creative Commons, writes in Free Culture that earlier in 1928, Buster Keaton released his silent film Steamboat Bill Jr., which "appeared before Disney’s cartoon Steamboat Willie...Steamboat Willie is a direct cartoon parody of Steamboat Bill, and both are built upon a common song as a source." (22–23)
Walt Disney's crazy cartoon-with-sound idea became a hit, and the rest is pop-culture history. Disney, Inc. went on to make billions by retelling existing stories through animation and music. While benefiting from a variety of public-domain works, Disney has also lobbied to prevent their own works – along with everyone else's – from entering the public domain.
In Against Intellectual Monopoly, Boldrin and Levine demonstrate how a range of innovations, from the "Watt" steam engine to the "Wright brothers" airplane, were not created from whole cloth. They were slight modifications built upon the work of many previous inventors. Human culture evolves through copying, tinkering, remixing, and improving on each other's work.
Even in today's copyright-restricted world, some creators have learned to tolerate noncommercial derivative work, often called "fan fiction" or "fan art" (there's also "fan music," "fan films," and even, as in the case of Star Trek, "fan wedding themes"). It is probably unwise for creators to attack their most dedicated fans, who spend their own time and effort promoting the creator's work.
Some creators even provide free "fan kits" so fans can add images, logos and other material to their own websites. Fan creations are a powerful form of word-of-mouth advertising for the original creation, essentially saying, "I loved this so much, I had to find ways to spend more time with it." Word of mouth is generally considered the best form of advertising, yet it costs nothing to the original creator or publisher (except the initial creation of a quality piece).
If word of mouth is the best form of advertising, and derivative works are a very powerful form of word-of-mouth, creators should want to encourage derivative works as much as possible. In a market economy, the best inducement is the profit motive. So why not encourage other people to make derivative works, at their own risk and expense, that can only promote your original work? And what better encouragement than to allow them to sell derivative work for a profit?
Disney has made fortunes turning the dark, bloody stories of the Brothers Grimm into colorful children's tales, with accompanying soundtrack available on CD. Amazon lists multiple collections of the Grimm's fairy tales. How many of these sales are driven by people who grew up watching Disney movies, then later decided to purchase the originals? (Perhaps they are lured by rumors of the horrific original stories.) Publishers clearly find it worthwhile to keep several competing editions in print, though the stories are available free online. How many other 19th-century German folk-tale collections are still published in such numbers?
If the Brothers Grimm were alive today, they would benefit from tremendous book sales because of Disney, even if Disney paid them no direct royalties. Disney has invested colossal sums of money in indirectly but powerfully promoting the Brothers' writings, for its own benefit. Increased sales of the Grimm Brothers' books is an unintentional side effect.
Disney could have failed. All its classic movies could have flopped. If they had, these hypothetical, still-living Brothers Grimm would not have suffered at all.
What if for-profit derivative work could be made from work that is currently still under copyright? Would the copyright holders of the original work benefit, or suffer, from this activity?
For example, imagine I am a fan of the still-copyrighted 1980s TV series The A-Team (and I was, at the age of five or six). I decide to write a derivative novel called "B."-er Than Ever: The Further Adventures of "B. A." Baracus. I imagine Mr. T's character after his A-Team days, when he breaks out on his own to start the B.A.-Team, a group of Baracus protégés who also go by their initials. (*Legal proclaimer: I have not written and am not writing such a book.*)
In the current copyright system, I've just wasted a bunch of time. I can't publish the book, or even put it free on the web, without hearing from NBC about copyright infringement, laws I may have broken, etc.
But what if NBC, the rights-holder, decided to release its old content under a Creative Commons Attribution-ShareAlike license, allowing others to make profitable derivative works? Then, you could publish a book such as "B."-er Than Ever. The writer could make money if there are enough former A-Team viewers out there willing to spend a few dollars to go on adventures with B.A. and crew.
It's kind of a silly example, but there's probably a market for it. When I played A-Team with my elementary school friends, everyone wanted to "be" B.A. Wild n' crazy Murdoch was a decent second choice, but if you ended up as Face or Colonel Smith, it was a dibs-calling failure on your part. (Much of my childhood play was copyright-infringing.) Today, the "B.A." character is cryogenically frozen within the most restrictive copyright walls, held by absentee owners who aren't using him. Fans will never enjoy further adventures.
Back to the imaginary scenario: the derivative writer makes a little money, the rights-holder of the original makes nothing. But how is this likely to impact sales of A-Team DVDs? It will not decrease sales. At worst, it will make no impact on sales. However, isn't it at least somewhat likely to increase sales? After seeing a copy of "B."-er Than Ever: The Further Adventures of "B. A." Baracus, isn't a fan at least slightly more likely to buy copies of the show, or other official merchandise put out by the creator? The "B."-er Than Ever author is reminding consumers that they like the A-Team, and possibly introducing a few younger people to the long-cancelled show.
The more successful the derivative work, the better for the original creator. If "B."-er Than Ever became a bestseller or otherwise stirred up enough interest – if Tom Clancy decides it would be fun to write his own A-Team novel – it could even lead NBC to re-release the A-Team DVDs with more features and updated commentary, put together an A-Team movie, etc. to benefit from this freshly riled audience
Is it profitable for a media company to fight against this only possible effect – the increased sales of its products? How would Mr. T react to his higher residuals? The book would be an advertisement for NBC's product, but it is produced and promoted at the expense of others. NBC receives free marketing at others' expense, regardless of whether "B."-er Than Ever flops or soars.
Sellers of media want increased demand for their products, and that means increased attention in today's attention-deficient world. Anything that brings interest to their products is valuable, and even more so if they don't have to pay for it themselves. "Remixers" selling derivative products have an incentive to market their own work, and so actively (if indirectly, even unintentionally) promote the original work, as Disney has done for the Brothers Grimm.
Creating and marketing a derivative work is still an entrepreneurial act. Walt Disney may have pilfered generously from Steamboat Bill, Jr., but he bore all the risk and cost of making his cartoon. He faced the possibility of complete failure, but he believed in his imagination.
What if a derivative work is made of a product that is not back-catalog, like A-Team episodes, but that is still being produced and sold by the originators? This would still be free marketing for the originators.
Lessig describes (p. 25) a modern example of this: in Japan, manga, or graphic novels, are a popular form of entertainment. Also popular are doujinshi, other graphic novels that derive from the original manga, but sold for a profit and without the consent of the copyright holder. Lessig explains:
A rich ethic governs the creation of doujinshi. It is not doujinshi if it is just a copy; the artist must make a contribution to the art he copies, by transforming it either subtly or significantly…There is no formula for what makes the doujinshi sufficiently "different." But they must be different if they are to be considered true doujinshi.
The entire doujinshi industry is technically illegal, but copyright claims are rarely pursued by the manga creators. (A Japanese lawyer suggests a charming explanation of this to Lessig: "We don't have enough lawyers.")
It seems plausible that doujinshi would help promote sales of the manga they imitate by acting as an advertisement for them. It is as if the manga creators have paid a viral-marketing firm to attract attention to their manga, except the manga creators do not have to pay anything. The doujinshi creators bear the promotional cost.
The large media conglomerates hold vast archives of copyrighted work, which they do not use, but from which they hope to profit one day. At the same time, many creators might want to use this material to create new projects. The media giants are also still trying to figure out how best to profit from the new(ish) "information" economy.
The solution, from the corporate viewpoint, might just be to open the gates and let the peasants back into the commons. Let creators be free to make sampled, remixed, and other derivative works from the existing copyrighted media, even for a profit, understanding that this provides free marketing for the original products.
This would be like assigning a small marketing team to many of the items on which the company is not focusing its own marketing attention, such as back episodes of cancelled television programs or forgotten movies and songs. It does not cost anything, and the "team" is made of self-selected enthusiasts from around the world. In corporate jargon, we might call it "maximizing long-tail revenue."
By opening old work up to new artists, the large corporate media company could only see gains in sales of the original old work – sales are not likely to fall as a result of promotion. It could also save money on intellectual property lawyers.
The big media corporations could also watch these intellectual-property entrepreneurs for the same reason coal miners watch canaries. Many people will not turn a profit using the liberated copyrighted work. If some succeed – if Disney notices that Dumbo-related products are surging, for instance – this is a signal that the market is interested in that particular work just now. Disney could respond by re-releasing Dumbo theatrically or on DVD, creating a new Dumbo movie, a new Dumbo cartoon, new Dumbo products, etc. The small creators remixing Disney work would act as free "market testers" for Disney, giving the much larger company signals about where consumer interest is high and where it is low.
Taken to the extreme, this pure laissez-faire approach, represented by the Creative Commons "Attribution" license, could generate entirely new kinds of participatory culture. It could work in any genre, but it might happen earliest in the science fiction subculture.
If a few authors decided to write separate books set in the same "universe," agreeing on elements such as planets, species, politics, culture, technology, etc. and release their books under the "Attribution-ShareAlike" license, or even the super-permissive "Attribution" license, they could start a new kind of franchise – one in which anyone could participate, even profitably. Co-creators around the world could offer books, art, animation, music, games, and other creations set in or drawn from the "open-source" universe, as well as translations into other languages, at their own trouble and expense, but for their own profit.
If the "franchise" were successful enough, it might need a wiki to keep track of the "rules" and contents of the universe. Many different creators could earn income from the universe, if others considered their work worth purchasing. This would constitute a kind of "creative co-op" with numerous creators collaborating, while each provides for his own share of the income through his own efforts. Each creation would enhance awareness of other works set in the same universe, and so all artists would indirectly promote each other through their own creations. There would be no central rights holder to interfere with the creative process, and all would be free to take their own initiative as they far as they wished.
The Grimm brothers themselves did not originate their stories, but collected oral folk tales from local storytellers and preserved them in printed form. It was a collaborative effort that seeded generations of creative and profitable media, supporting the livelihoods of thousands of artists, writers, actors, and musicians, and entertaining millions of people.
Ancient Greek poets and playwrights did not bother with copyright. They freely shared characters, using the same gods and heroes to tell different stories. They gave us such works as the Iliad, the Odyssey, and a collection of great plays. This open-source culture became the foundation of Western civilization.
A more liberalized approach to intellectual property and copyright, combined with the participatory nature of the internet, opens up new avenues of creativity. While creators of media may have an instinctive desire to lock down copyright protection on their work, this current approach also works against creators themselves.
Filmmakers could have the freedom to use any music, images or video they need to perfect their final product; novelists, screenwriters, and video game designers could explore thousands of currently known but copyright-restricted worlds, from the machine-ruled future dystopia of Terminator to the somewhat tamer world of Golden Girls (including that instant remix classic, Terminator vs. Golden Girls); musicians could use any sound they find, in any way they wish.
The Walt Disneys of today and tomorrow have as their foundation all the media ever created, and the technological power to sample, remix, or enhance it. The more attitudes toward intellectual property are relaxed, the more these creators will enjoy the same freedom that Walt Disney had, enabling them to enrich the world through the power of their imagination.
May 11, 2009
J. L. Bryan [send him mail] lives in Atlanta. His novel Dominion is free at his website.
as well as film studios that have made movies and TV shows based on characters he created or co-created, including Sony, Universal, 20th Century Fox and Paramount Pictures. That's the news from the website bleedingcool.com, which covers all things comic book. Normally these kinds of lawsuits are run of the mill for Hollywood. But not when they're litigated by Marc Toberoff, who is the bane of Big Media. He's had so many victories they're hard to count, especially in he comic book arena on behalf of Superman creator Jerry Seigel against DC Comics and Warner Bros.
Like that case, Kirby’s estate is looking to regain his share of copyright in the characters and their use in comics and other media. "Such claims, if found valid, would begin from 2014 and, as always, it's worth noting that Marvel/Disney will still own the trademarks of the characters in comics, and the studios in movies. The likelihood is that, if successful, the Kirby estate would enter into negotiation over terms to continue publishing comics based on his work," the website wrote. Other recent cases which Toberoff has won or settled lawsuits on Lassie, Get Smart, The Dukes of Hazzard, The Wild Wild West, and Smallville. On the Superman case, Warner Bros could have been draped in black mourning the loss of a shitload of Superman dollars because of U.S. District Court Judge Stephen G. Larson's ruling: "After 70 years, Jerome Siegel’s heirs regain what he granted so long ago — the copyright in the Superman material that was published in Action Comics, Vol. 1. What remains is an apportionment of profits, guided in some measure by the rulings contained in this Order, and a trial on whether to include the profits generated by DC Comics’ corporate sibling’s exploitation of the Superman." Think about it: Siegel sold the rights to the action hero he created with Joseph Shuster to Detective Comics for $130, and his heirs got back ownership of the character in 1999 and could possibly lay claim to $50+ million of Warner Bros' and/or its DC Comics' cash. Can that happen in the Kirby case? The iron is that Disney CEO Bob Iger's ties to Marvel go back two generations to Kirby himself. That's because Iger's late great-uncle (his grandfather's brother) was illustrator/cartoonist Jerry Iger, who partnered with illustrator/cartoonist Will Eisner back in the 1930s to create the comic book packager Eisner & Iger Studios. And their first hire was Jack Kirby, who as you know later became the co-creator of many of Marvel's best known characters with then Marvel editor-in-chief Stan Lee. Lee, meanwhile, has been supportive of the Disney/Marvel deal (though he is fighting lawsuits of his own on other fronts.)
