Sunday, March 01, 2015

On Copyright Again

Last summer I wrote about the need to reform copyright.

The points I made then are still relevant and valid, but I wanted to add a bit to it based on some comments in my last blog post.

I talked about how fun it would be to write a comic where Superman, Hulk, and Spawn fight, but how that isn't ever going to happen.

DC owns Superman. Marvel owns Hulk. Image owns Spawn.

Since none of these characters are in the pubic domain, the only way to use them is with a license. But that's only one level of restriction. Even with an approved license, licencors will have rules. The few existing Marvel-DC/Hulk-Superman fights have been lackluster at best. That's because the rules imposed by the licencor override any creative freedom on the part of the author/artist.

Writers who work for a specific comic company have rule sheets and bibles for what is allowed and what isn't. Unless special exceptions are given, there are boundaries. It's stifling creatively.

I'd love to write a comic with Hulk, Superman, and Spawn, and have them beat the hell out of each other for 64 pages, instead of throw each other around for six panels and say stupid stuff. And I'd like to decide who wins, not be restricted or constrained by what the licencors' agree on.

I went into this Kindle World giving writers almost total freedom, with the exception of the guidelines that Amazon imposed (no ads, no porn, no racism). I allow any kind of sexual relationship. I allow writers to kill my characters. I allow writers to bring in their own characters.

Marvel and DC aren't doing this with their IPs, and during the rare times they had crossovers, there were either rules, or they let the fans decide.

Ultimately, my point is that Hulk would tear off the Man of Steel's arms and beat him to death with them. But that story won't ever be written by me, because of copyright.

How interesting it would be if fair use allowed writers to use the IPs of others. Let's say it was a limited use; maybe 15% of the completed protect. It would still be a game-changer.

But as we saw in the music sampling lawsuits through the ages, it ain't gonna happen.

Which is a shame.

I liked He's So Fine, but preferred My Sweet Lord. I like Bittersweet Symphony over the exceedingly rare orchestral version of Time is On My Side. Super Freak, and You Can't Touch, this can exists side-by-side. So can Under Pressure and Ice Ice Baby.

I can see paying a reasonable fee for fair use, but turning over full copyright and all royalties for a riff seems wrong. These songs weren't covers, or even re-imaginings. They were new art, based in part on old art.

Which is what Shakespeare did with many of his plays. Retell old tales in a new way. Which we're still doing with Shakespeare (West Side Story, Haider, Forbidden Planet, Gnomeo & Juliet.)

In 1936, Carl Orff took some poems written hundreds of years earlier and composed the Carmina Burana. Fifty years later, Orff's estate successfully sued the band Apotheosis for doing a techno version of O Fortuna.

Should Apotheosis have gotten permission to use a song written by a dead guy? Perhaps, but I'd argue for some sort of fair compensation. Maybe a one-time fee. Maybe percentage-based. But it shouldn't be up to the dead guy's estate. Once a creator dies, why not let that work spawn other works? Let the estate get a cut, but don't allow the estate to make any decisions on how the license is used. If I wanted my heirs to decide how to use my characters, I'd let them make the rules while I was still alive. Orff's estate killed a song (it's no longer available new) that introduced many, including me, to Orff's music. Orff may have even liked the version, had he been alive to hear it.

But art lost out to copyright. You can still download illegal versions of the Apotheosis remix, buy used versions, hear it for free on YouTube and all over the Internet, but neither Orff's estate nor Apotheosis earn a dime from it.

Pretty stupid. Especially stupid because the hit Apotheosis version is probably the catalyst that made O Fortuna so popular in modern society. They recorded their techno remix in 1991, and many people, like me, heard Orff's music for the first time. Prior to 1991, according to Wikipedia, there were a handful of popular culture uses of O Fortuna. Since 1991, there have been four dozen.

I wonder how much of that song's modern popularity is because it was a Top 10 hit, on Billboard for 11 weeks, thanks to Apotheosis. I wonder how much the Orff estate knows that. I can guess how much they've benefited monetarily.

We can argue who rightfully deserves the money--some heirs who did nothing to create the song, or a group that modernized something 55 years old and made it a big hit. That's an argument I want to have.

We live in a world where artists are regularly screwed by publishers, producers, and record labels, but it's okay because they signed on the dotted line, even though the contract sucked. But then we have a ridiculous double standard, where heirs and companies can hold onto the rights to Mickey Mouse and Sherlock Holmes and Carmina Burana for long after the original artists died.

I know I'm bringing up a lot of ideas here, some of them possibly conflicting, so let me highlight a few points:

  • When an artist dies, any IP they created should revert to heirs.
  • If that IP is currently being exploited by a company (producer, label, publisher) it should still revert. Artist dies, contract is over.
  • Once reverted, heirs are allowed to hold that copyright for a minimal amount of time. Say 40 years. But they don't have a say in how that copyright is used. 
  • Once reverted, any other artist or producer can use that IP in a commercial version of fair-use. I'll propose that if a certain percentage of the IP is used in a certain percentage of a new work, the heirs get a certain percentage of profits associated with that work, or certain set fees if that work is for advertising purposes.
  • If the artist is still alive, there should still be commercial fair use laws. Perhaps stricter than what the heirs have, but other people should still be able to use what the artist has done. I point to my Jack Daniels & Associates Kindle World as an example of that. Go ahead and use what I created, however you'd like, but pay me some set percentage.
These are ideas that I feel should be discussed, not laws I want to put into effect. I see problems with some of my points.

An IP creator, or their heir, might not want these IPs used in association with certain things. Advertising. Religious, political, or sexual issues. Morals antithetical to the original artist's intent. 

But if the artist is dead, isn't the artist is past the ability to care? And if the artist is alive and popular, fans are writing slash fiction anyway, where Luke nails Leia and Harry nails Hermione and Hulk nails Superman. I've even heard some unsubstantiated rumors that someone took Edward and Bella from Twilight, threw in some S&M, and then had a minor hit. And Stephanie Meyer was okay with it.

There is the possibility that public oversaturation of an IP can cause it to lose value. But I'd call that speculation. I bet if Stephen King or James Patterson did a Kindle World following my example, they'd increase their income and popularity. Patterson outsells King because he already allows other artists to create works under his brand. Patterson makes sure he keeps control over the works produced, but is that being a shrewd and smart businessman, or ultimately leaving money on the table? Amazon reviews show a lot of fans don't like Patterson's books when they're written by others. But many do. And the books keep selling. Wouldn't loosening up restrictions allow for even greater sales?

At what point does an IP become oversaturated? Or killed by bad reviews? Has that ever happened? Hasn't it been shown that bad publicity is better than no publicity, and being obscure is worse for your career than being mediocre?

I know this all seems the opposite of everything we've been taught. It's certainly much different than the current laws.

But is it wrong?

People cosplay, and the IP holder doesn't get a dime (unless that holder is smart and sells their own costumes). No one knows how many YouTube videos are put up and taken down on an hourly basis that involve other peoples' intellectual property. (You down with O.P.I.P? Yeah, you know me. And that's parody, so it's fair use you see.)

DJs makes mixes. Musicians sample. Fan fic abounds. People upload their covers and remixes of popular songs. 

Information wants to be free. That doesn't mean artists don't have a right to make money, or that someone who patents a pill to cure a disease shouldn't be allowed to make a fortune, or that a successful business shouldn't be able to trademark their logo. But there is a line somewhere. I'm not charging you to read this. When I speak to my friends, they don't have to pay me. Every original sentence I write and original word I utter does not mean the world owes me $$$, just like if I'm busking on Michigan Avenue with my C-harp, belting out the techno version of O Fortuna for tips, I shouldn't have to give Orff or Apotheosis a dime.

There is a line. And I don't think the current line meets the needs of the current population. Not the artists. Not the fans. Not the consumers.

It probably meets the needs of the big businesses who exploit artists and fans and consumers, which is reason enough for it to be re-evaluated.

I write for a character named Jack Daniels. When the whiskey makers heard about this back in 2003, they sent me a very kind letter wishing me success, but asking if I wouldn't mind putting a disclaimer in the beginning of my book.

Though the Lt. Jack Daniels mysteries are no way sponsored by, endorsed by, or related to Jack Daniel's Tennessee Whiskey, when I tell people my main character is a female cop named Jack Daniels, they get the joke.

Had Jack Daniel's Properties, Inc been litigious, they could have scared my publisher into not releasing Whiskey Sour. But they were polite and generous, and didn't sue me to prevent the start of my career. Hopefully my little series has sold a few bottles of whiskey for them, and though I am in no way sponsored, endorsed, or related to Jack Daniels Tennessee Whiskey, I will admit to having enjoyed more than a few bottles over the decades, including some special bottlings like the 1991 Barrelhouse No 1 which has been one of the most pleasant liquor experiences of my life.

Imitation is the sincerest form of flattery, and I love me some Jack Daniel's. I love that I can write about a character named Jack Daniels. And I love allowing other writers to write about that character.

And I'd love to write sequels to Salem's Lot, and the Exorcist, and Silence of the Lambs, and love to bring Cheers back and make Kramer and Al Bundy regulars, and while I'm at it I want to do a screenplay where Han and Starbuck are in the Millennium Falcon, being chased by Klingon Birds of Prey, and are forced to land on LV-426 where they run into a new Alien hive.

Also, Han nails Starbuck.

The Dirk Benedict Starbuck.

Kara Thrace it's awesome, but it's my slash fic and I can do what I want.

Except I can't.

I like the post-YouTube world. The post-YouTube world is the world where Rorschach and Deadpool can get a million hits (a dozen of them all mine). Where I can download a music torrent because the album was never released on CD or mp3, and I don't have a turntable to spin the used LP because I'm not a hipster. Where people share free thoughts on Twitter, and free pics on Pinterest, and book quotes on Goodreads. Where user-generated-content-based Wikipedia is the go-to place for facts. Where Amazon can release a book that collects some of its Funniest Customer Reviews. That book has a review by me in it. I didn't get paid. I didn't care. I wrote it to amuse others.

Just like I'm writing this blog to inform others. And I'm not charging anyone.

Maybe I'm wrong, but in an age of net neutrality and free information and the unprecedented ability of the World Wide Web to enable and encourage open exchanges of opinion, ideas, and art, current copyright law seems overly restrictive, archaic, and broken. It seems set up to protect the rich at the expense of society. Protect big business and screw the artist. Limit artistic freedom and expression.

We're not having this conversation in court because those with the money want to keep their money.

I like capitalism. I like money.

But I think there's something wrong with the idea that if I work a 40 hour week at Name Any Business, I get a salary or an hourly wage, and the money that I earn is a set, agreed-upon amount. But if I work 40 hours on a story--which is something I love doing and a helluva lot easier than working in a factory (done that), a restaurant (done that), construction (done that), an office, (done that)--I get to earn money for my lifetime, and my heirs can keep earning for 70 years after I die.

Lemme steal a few quotes from Wikipedia to further support my position.

Benjamin Tucker, opposing intellectual property, writes, "...the patent monopoly...consists in protecting inventors...against competition for a period long enough to extort from the people a reward enormously in excess of the labor measure of their services, – in other words, in giving certain people a right of property for a term of years in laws and facts of Nature, and the power to exact tribute from others for the use of this natural wealth, which should be open to all.

Petra Moser: Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation.

Stephen Kinsella: [I]magine the time when men lived in caves. One bright guy—let's call him Galt-Magnon—decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses.

Thomas Jefferson: If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

I haven't done much linking in this blog post, even though I've mentioned a lot and read a lot that could defend my position. I'm not trying to prove my ideas are correct. I'm not even sure they are. But I think they are provocative enough to start a discussion.

Philosopher John Locke said there were three natural rights that all people had.
  1. Life: everyone is entitled to live once they are created.
  2. Liberty: everyone is entitled to do anything they want to so long as it doesn't conflict with the first right.
  3. Estate: everyone is entitled to own all they create or gain through gift or trade so long as it doesn't conflict with the first two rights.
Yet once Locke wrote that, he no longer owned it. In fact, Jefferson's taper was lit from Locke's, and I don't think Locke got any royalties for helping found the principles that the USA were based upon. 

I don't know if Locke meant Ideas when he pondered on the concept of Estate. If I paint a picture, there is one of them. It is my right to do with it as I please. But neither Locke, nor Jefferson, had ever conceived of the Internet, where unlimited copies of a jpg can be made, for free, forever. 

Art, and media, are forms of communication. As a species, communication has helped up thrive. It doesn't seem to me that laws that prohibit communication are good laws. I can draw Mickey Mouse for my personal use. I can buy Mickey Mouse cartoons on DVD, used. I can name my dog, or my child, Mickey Mouse. I can write a story that features Mickey Mouse, and put it on the Internet. Gte Mickey Mouse tattoos over my whole body. But I can't write a Mickey Mouse story and sell it without permission.

I've read, and enjoyed, Malcolm Gladwell's book Outliers. I've used the term "outlier" on my blog many times over the years, but haven't paid Gladwell any more royalties than Jefferson paid Locke. 

Why can I write about someone becoming an expert at something by spending 10,000 hours doing it, and I don't have to pay Gladwell (who cited a 1993 paper written by Anders Ericsson, and I don't believe Gladwell paid him either), but I can't have a single picture of Mickey Mouse in my novel--even with citation to Walt Disney and Ub Iwerks--without permission and licensing fees? Why do novels and non-fiction have different rules? Can't we learn as much from Catcher in the Rye as we can from Principia Mathematica? And didn't Whitehead and Russell get most of those equations from others?

Salinger sued Fredrik Colting for writing a sequel to Catcher sixty years later. Salinger won. Could Cantor's estate have sued Russell and Whitehead for including ordinals in the PM without paying royalties? Any reasonably smart empiricist could successfully argue that math is an invention rather than a discovery, and thereby should be protected under copyright law.

But that would be silly, wouldn't it?

We are in a world where a monkey can take a selfie, and it is debated in court who owns the copyright.

Isn't that sort of extreme?

At what point does an idea, a group of words, an image, a concept, character, a story, cease to belong to one and can be considered part of the collective human experience? The creator's life plus 70 years? The moment it pops into existence?

Again, I'm not sure of the answer. But I don't think current copyright law effectively answers the question.

Search for "Star Wars Fan Film" on YouTube. Count how many you find.

You'll be counting for a while.

I'd guess that many of those films--and there are thousands--took time, talent, and money to make. I'd argue they strengthen the Star Wars brand. I also know, from experience, that some of those filmmakers will go on to create their own IPs. Many not as successful as Star Wars, but Star Wars may have given them the inspiration to eke out their own living someday.

Just like I'm not able to eke out a living writing about serial killers, though I'll never be allowed to write that sequel to Silence of the Lambs where Clarice Starling and Will Graham hunt down Hannibal Lector. With the help of Lt. Jack Daniels.

And while that may not be a loss for the literary world and a tragedy for Art with a capital A, I can't help but wonder if in some parallel universe I'm doing just that, and having a damn good time.