The search for a sustainable financial model for serious journalism is time-consuming. Currently concentrating on support for Arts Spectrum, I am reprinting some past columns. This week's post is an edited version of two columns that originally appeared in the Times-News in September 2004. The focus is on changes in copyright law that favor large entertainment corporations, impair creativity, and violate the intent of the U.S. constitution.
Steamboat Willie, released in 1928, was the cartoon movie with synchronized sound that made Mickey Mouse a star. Walt Disney’s fame began with that creation. At that time, copyright protection lasted for 28 years, and could be extended for a second 28 years. The copyright on Mickey Mouse would have expired in 1984, after which the material would pass into the public domain and could be used or adapted by anyone. Since 1984, we could all be making our own Mickey Mouse sweatshirts and selling them, without getting permission or paying royalties to Walt Disney.
It was self-serving that Walt Disney, Inc. lobbied in 1976 along with other entertainment corporations for changes in the laws of intellectual property that extended existing copyrights by 19 years. In 1998 the “content industry” (Fox, Disney, Time-Warner and others) lobbied congress for the “Sonny Bono Copyright Term Extension Act” that added another 20 years. Mickey became exclusively Disney corporate property until 2018.
The United States Constitution, Article I, section 8, clause 8, states that “Congress has the power to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Intellectual property law is a balancing act, resulting in a fair contract between creators and society. Constitutionally, the goal is to promote progress. In return for that progress, the creator is given “for limited times” the power to control his creation and extract royalties. In 1790, Congress decided that “limited times” meant 14 years plus one renewal for a total of 28 years. There were two legislative changes between 1790 and 1909, when the copyright duration became 28 plus 28, the term in effect when Walt Disney was motivated to create Mickey Mouse.
That appeared to be sufficient incentive for fifty years to cause artists and authors to create. However since 1962, with corporate lobbying for extensions, there have been eleven more changes in law so that now corporate-held copyrights will last for 95 years.
In the view of legal scholar Lawrence Lessig, a constitutional expert, recent changes in copyright law have only benefited the corporate holders of copyrights on old material. They have not benefited the creative artist, and in fact hinder creativity.
New media and new technology require changes in copyright. Lessig recognizes that the position in 1790 (when America had 174 publishers, printing presses and a law governing only maps, charts and books) is different from the position in 2004 (when anyone can be a desktop or Internet publisher, and copyright needs to encompass music, records, architecture, drama, film and computer programs). However, he feels that the changes that have been enacted have favored the corporate entertainment industry, and have actually hindered creativity, which was the constitutional intent of establishing copyright in the first place.
Lessig is the author of two important recent books regarding copyright: Code and Other Laws of Cyberspace (1999) and Free Culture (2004). In these works, he points out that checks and balances are at the center of the American concept of constitutional government, and should be at the center of American law controlling intellectual property. He condemns the extension of copyright duration by a factor of three, far exceeding what is needed to reward individual creativity, and also questions the extension of copyright protection (originally governing copies) to include control of “derivative works” in an encompassing manner not envisioned in the Constitution. Corporate lawyers now mount vigorous attacks on actions formerly considered “fair use.”
An example is in order. In a 1990 documentary about stagehands at the San Francisco Opera, a television set in the corner of the screen displayed 4.5 seconds of The Simpsons. Filmmaker Jon Else thought this would be covered under the “fair use” doctrine that allows small samples of a copyrighted work to appear in other works without permission. To be safe, he contacted Fox to obtain clearance, was initially denied permission and ultimately was quoted a licensing fee of $10,000. Else erased that 4.5 seconds of The Simpsons from the TV in his movie, eliminating an amusing touch that illustrated the backstage ambiance during the opera.
I began by describing Steamboat Willie, the work that made Mickey Mouse a star. But was it even a Walt Disney creation? Earlier in 1928 Buster Keaton released his last independent silent film, Steamboat Bill, Jr. Disney’s cartoon was a parody of the Keaton film, done without obtaining permission because everyone in that age built on previous work. Were Disney creating his product of genius today, Keaton’s lawyers would sue him, claiming this was a “derivative work” that infringed Keaton’s copyright. Beyond that, the contemporary song Steamboat Bill inspired both films. If they created these films today, both Keaton and Disney would be arguing with the corporate owners of the song about rights and royalties.
As Lessig points out, much of art is adaptive and derivative from prior works of art. If rapacious corporate legal maneuvers continue to prevent artists from building on previously published art, the ability of individual artists, composers, authors and performers to create will be impaired. The extension of the legal concept of copyright control may benefit the “information industry” with its vast reservoir of copyrighted films, music and publications, but individual creators are under attack.
© 2009 Edward C. McIrvine
Arts Spectrum column #462
December 11, 2009
