Property 'Theft': Not Just for Disney Anymore
by J. L. Bryan
by J.L. Bryan
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.
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
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)
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.
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.
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.
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).
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?
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?
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
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.
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?
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.*)
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,
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.
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.
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.
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.
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
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
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.
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.")
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.
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.
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.
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."
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
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.
"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.
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
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,
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.
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.
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
[send him mail] lives
in Atlanta. His novel Dominion
is free at his website.
Property 'Theft': Not Just for Disney Anymore by JL
Bryan is licensed under a Creative
Commons Attribution 3.0 United States License.