A bit back, Sean Michael Robinson talked about a production of the Diary of Anne Frank that interpolated the music of the Carpenters. Sean noted that the production was wonderful, moving, inventive…and also illegal.

Anne Frank’s words, however, and the translation of her words on which we were relying for much of our text, were a different matter, as was the authorized play (Diary of Anne Frank), which provided much of the rest of the text. All of these elements are still under copyright, and will continue to be so for several years. (In fact, copyright in the theater is more restrictive than in almost any other field. You can, after all, read a book or listen to an album any way that you wish once you’ve purchased a copy–but to publicly perform a play one must conform to a dizzying array of limitations set out by the author or the author’s agents–usually, that every word of the play will be performed, i.e. no cuts or insertions without permission, and that the appearance, gender and even staging etc will honor the stated intentions of the author regarding the script and contract.)

Sean’s prescription — with which I agree, is that we need to rethink our insanely restrictive copyright laws in order to make it possible for people to reimagine older works, and create new ones, without having their asses sued off.

This does bring up a rather uncomfortable issue for me, though. Mainly…if I think that art is built out of other art, and that the copyright laws should reflect that, then what exactly is the deal with my recent article on Slate, where I discuss my deep disgust with DC’s Before Watchmen? After all, as Jones pointed out with his usual logician’s obsessiveness, Alan Moore has ripped off everybody from C.C. Beck to H.G. Wells, and probably other people whose names begin with A, X, Y, and Z as well. If I think high school kids should be able to mash up Anne Frank and the Carpenters, and I think that Alan Moore should be able to mash up Dorothy and Wendy and Alice (which is probably not the best word choice there, but onward), then what exactly is the problem with having DC put out a new! Watchmen! prequel! — or for that matter, a Watchmen toaster? Isn’t there some moral inconsistency here?

Possibly. But let me try to think through the differences.

— First, it’s useful to remember the purpose of copyright. According to our Constitution, the purpose is not to protect creators. The purpose is to encourage art. Copyright is supposed to give creators a monopoly on their own works so that they will have a financial incentive to create those works in the first place. If as soon as you write something, everybody else can publish it under their name, then you’re going to limit the people who will write to hobbyists who don’t need the money. (Not that there’s anything wrong with hobbyists, he says as he writes for free on his blog. The point is just that ideally you want to encourage other kinds of writing as well.)

However. Giving someone an infinite monopoly on their work also limits creation. It makes it hard to comment on older works, or to remix them, or to use them as inspiration for newer works. That’s why copyright is limited; so that works will eventually enter the public domain where they can be used by other artists with no strings attached to make things like League of Extraordinary Gentleman…or what have you.

The point is that there’s no particular contradiction between arguing that, on the one hand, Alan Moore is being screwed, or that, on the other hand, basing a work on Bram Stoker — or even on C.C. Beck — is okay. I’m personally in favor of a copyright of about 50 years from date of publication — which would mean Watchmen would still be under copyright, but that a lot of works Moore has lifted from would not be. A fifty year copyright would also put Anne Frank out of copyright…though not the Carpenters.

— Second, even when works are under copyright, I think there needs to be a vigorous fair use provision. Such provisions can include, for example, flat fees for using music (like the Carpenters) without giving the creator veto power over how or where that music is used (which, yes, would mean that idiotic republican presidential candidates could use Bruce Springsteen’s songs if they wanted even if the Boss objected. I think that’s a reasonable price to pay for a vigorous public domain, personally.) I also think that in situations where there is no profit, as in Harry Potter fan fiction, for example, most bets should be off.

Soooo…again, how is all of this different than DC publishing Before Watchmen…or than Marvel using Jack Kirby’s characters (which are certainly on the verge of my 50 year timetable) without paying him?

Which brings us to my last point.

—The issue with DC and Marvel is not that they are creating new work using somebody else’s characters. As I’ve suggested, artists do such things all the time; it’s a big part of how art is made. Without it, we wouldn’t have Shakespeare, much less Alan Moore.

So the issue with DC and Marvel isn’t use of the characters. The issue is, specifically, lousy business practices. Moore and Kirby never got to exploit the copyright for the characters they created; instead, Marvel and DC used crappy contacts, evil industry practices, and disproportions of power to gain the benefits of the law for themselves. So it’s not that Marvel and DC shouldn’t use those characters. It’s that they shouldn’t be able to reap a monopoly windfall for using those characters based on dubious business practices.

And, in a bitter but by no means isolated irony, the excessively insane draconian provisions of our copyright law mean that the creators are actually much more extensively screwed than they would be if copyright were reasonable. If copyright were only 50 years, Marvel would be in the process of losing its rights to its properties one by one — which would mean that anybody could make a Spider-Man movie or an Iron Man movie, which would make Marvel essentially worthless, which would mean it would go out of business — which wouldn’t benefit the Kirby family financially, of course. Still, you’d think his ghost would at least get a kick out of it.

In any case, the point is: the creators working on Before Watchmen are not despicable because they are using someone else’s art to make art, because that’s what all artists do. They’re despicable because they are knowingly helping DC exploit a monopoly that was obtained by fucking over the people who created it — and because one of those fucked over creators has verbally erected the equivalent of a picket line. Hughes, Straczynski, Cooke, et. al. are not thieves. They’re scabs. I hope that’s a comfort to them.

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