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.

ARTISTS VS. ART

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.

ARTISTS VS. THEIR GRANDCHILDREN

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.

FAIR USE VS. GOBS OF MONEY

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.

THE OLD NEW VS. THE NEW OLD

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.

ENDNOTES

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.

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