Intellectual Property 'Theft': Not Just for Disney Anymore

Mickey Mouse 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.

Walt Disney’s 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.

In Against 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.

Some 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).

If word 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?

Disney 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?

If the 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 side effect.

Disney 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.

But what 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.

Back to 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.

Sellers 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.

Creating 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 his imagination.

What if 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 the originators.

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.

It seems 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.

This would 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.”

By opening 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.

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.

If the “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.

The Grimm 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 of people.

The Walt 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 imagination.

May 11, 2009

Intellectual Property ‘Theft’: Not Just for Disney Anymore by JL Bryan is licensed under a Creative Commons Attribution 3.0 United States License.