Authors Do Not Create Content In A Vacuum… So It's Too Bad Copyright Often Pretends They Do
from the on-the-shoulders-of-giants dept
The website Copygrounds, which has been interviewing various people involved in various copyright issues, has an interview with the always interesting Henry Jenkins (who we’ve quoted a few times in the past). The whole interview is worth reading, but I wanted to call attention to one key part, when the interviewer asks Jenkins about the European concept of “moral rights,” which the US has explicitly rejected:
The current American system rewards authorship rights to corporate owners at the expense of both consumers and authors. The European tradition rewards moral rights to authors at the expense of the rest of the culture. Neither represents the most desirable system, in part because both falsify the actual conditions of authorship. Authors do not create value in a vacuum. All writers are already readers who are processing elements of their culture as the raw material for their own expressive and intellectual output, and in turn, their work becomes the raw materials for the next phase of creative expression.
That line: “Authors do not create value in a vacuum,” is a good one, and deserves to be repeated. So much of the debates we have on copyright and related issues seems to center on this belief that they do. In that patent realm, it’s the whole “flash of genius” concept, but it certainly applies in copyright as well. The system is designed as if people are creating things entirely from scratch, rather than pulling from the culture around them to put it together in new and creative means. Disney, of course, is famous for taking old stories and making them new again, and yet it refuses to let others do the same to its works. Authors do not create value in a vacuum. And, of course, it goes beyond the idea that authors are building on what’s come before. The value piece is often added by the readers themselves, and how they interact, mold and share the content that has been created. Authors do not create value in a vacuum… but we’ve built up laws and institutions that seem to assume they do.
Filed Under: authors, content, creation, henry jenkins
Comments on “Authors Do Not Create Content In A Vacuum… So It's Too Bad Copyright Often Pretends They Do”
If authors are so original, then why don’t they just make up their own words to use?
Re: Re:
Even *when* authors make up their own words to use, in fact, even their own languages, they still base them off of pre-existing languages. Even the concept of making up a new language isn’t a new idea.
Even J.R.R. Tolkien, who was famous for the depth of detail to which he went to make his writing seem authentic, based his fictional tongues on dead languages that he found fascinating.
Read the Wikipedia entry for more details: href=”http://en.wikipedia.org/wiki/Languages_of_Arda
Authors do not create value in a vacuum…but, boy, do some of them suck!
One of my favorite examples of “Authors do not create value in a vacuum” is Star Wars. George Lucas borrowed from classical mythology, the Old West, World War II, Japanese Samurai, Templar Knights, King Arthur, Buck Rogers, and more. And he’s the creator of a $15 Billion franchise.
But beyond all that, the greatest boon to the Star Wars franchise is the imagination of its fan-base. If kids hadn’t grow up imagining their own adventures as Jedi Knights, Corellian smugglers, and Rebel starfighter pilots, the franchise could have died out after the Star Wars Holiday Special and the Droids and Ewok cartoons.
Cures and treatments
“If authors are so original, then why don’t they just make up their own words to use?”
Real authors actually are in a vacuum, and need to get air. And right this moment, many authors have flocked over to Apple.com where they gaspingly whack their keyboard to be placed on the waiting list for a product called Macbook Compressed Air. The “Book Of Ancient Chinese Medicine Man Prophesies” state that Macbook Compressed Air can cure some of the symptoms authors that live in a vacuum experience.
The same prophesy claims Macbook Compressed Air also cures having 100 tabs open, and has power to convert Android loyalists to iPhone, but these two theories haven’t been scientifically proven yet.
Examples
What are some examples where Disney has refused to let others build off their works?
Re: Examples
Try to write a book with Mickey Mouse as the main character, and see what happens.
Re: Re: Examples
That’s gotta be rough for creators. I mean, you can’t make a story with Mickey Mouse, what else is really left in the world?
Re: Re: Re: Examples
Guess we’ll never know what could be done with Mickey Mouse since we’ll all be fricken dead by the time copyright expires on him.
Re: Re: Re:2 Examples
Our corpses will have seen the energy death of the universe before that copyright expires
Re: Re: Re: Examples
Good job admitting your question was stupid.
Oh, wait, you didn’t. Silly me.
Re: Re: Re:2 Examples
Is it? If it was stupid, I’d expect one example to be mentioned.
Re: Re: Re:3 Examples
http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act
Is one of the most famous laws in copyright history good enough for you?
Re: Re: Re:4 Examples
According to one of the sources in the Wikipedia article, “Disney would not have lost the right to use Mickey Mouse, would not have lost any rights in the modern Mickey Mouse, and would not have lost any of its trademark rights to control the commercial use Mickey Mouse.”
Do you have another example?
Re: Re: Re:5 Examples
According to one of the sources in the Wikipedia article, “Disney would not have lost the right to use Mickey Mouse, would not have lost any rights in the modern Mickey Mouse, and would not have lost any of its trademark rights to control the commercial use Mickey Mouse.”
Lawyer’s trick. No one was talking about the trademark. They were talking about the copyright, but it’s pretty sleazy to ignore that and pretend it’s about trademark.
Re: Re: Re:6 Examples
What’s your point? Can you provide evidence that Disney lobbied for this law for copyright reasons?
Re: Re: Re:7 Examples
What’s your point? Can you provide evidence that Disney lobbied for this law for copyright reasons?
Not sure I understand the question. Are you honestly suggesting that Disney was not the driving force behind the CTEA?
Re: Re: Re: Examples
Well, I suppose one could make a story with Sherlock Holmes. Isn’t culture fun? Well, it’s supposed to be fun, if it actually worked properly.
Superman will never enter the public domain. Why would anyone have a problem with that?
Re: Re: Re: Examples
That’s gotta be rough for creators. I mean, you can’t make a story with Mickey Mouse, what else is really left in the world?
I agree. Which is why Disney never should have been able to copy Steamboat Bill in creating Mickey Mouse, right?
Oh wait, there’s a logic fail here. Apparently, since you don’t HAVE to use Mickey Mouse, then Disney has not prevented anyone’s speech.
Re: Re: Re:2 Examples
You agree that creativity stopped when Disney created Mickey Mouse?
I can name plenty of speech in the last 70 years that Disney hasn’t prevented.
Creators have managed to get around the troubling “Mickey Mouse” problem. Kurt Vonnegut did it; George Lucas did it; Bob Dylan did it.
Re: Re: Re:3 Examples
You agree that creativity stopped when Disney created Mickey Mouse?
Terry, please. Who made that claim? Intellectual dishonesty does not look good on you.
Stifling creativity does not mean that “creativity stopped.” I mean, seriously. What’s with the bullshit? Can you really not understand the difference between *some creativity is stifled* and *all creativity is stifled*? I took you seriously because your blog seemed smart, but this is just beyond ridiculous.
I thought you were above ridiculous claims.
Re: Re: Re:3 Examples
I can name plenty of speech in the last 70 years that Disney hasn’t prevented.
Under the reign of Communist Russia, plenty of artistic works were still created.
Therefore, Russia’s censorship laws worked perfectly fine.
Right?
p.s.: http://www.google.com/search?q=disney+sues
Re: Re: Re:3 Be thankful Kurosawa is not a jerk.
George Lucas only “managed” because Kurosawa is not an asshole. That’s rather the point here. Authors that build on recent works or even use common elements run the risk of getting sued. You mentioned Lucas. Well, Fox sued Universal over Battlestar Galactica over recycling Western concepts in space.
Nevermind the fact that the whole original Roddenberry pitch for Star Trek 10+ years earlier was “wagon train in space”.
You don’t have to look to the current software patent shenanigans to see how Big Content tries to “own a genre” or something else equally absurd.
Ownership of ideas chills free speech because it allows for more ways for your speech to be objected to and supressed. Some “owner” can assert the “right to exclude”. We saw that just the other day with that very historically relevant 20/20 interview.
Re: Examples
Watch Rip! A Remix Manifesto from 32:25 – 40:50 (well, the whole thing is good too, but for examples of the Disney copyright issues check out those minutes).
You can find it here:
http://films.onf.ca/rip-a-remix-manifesto/
or here:
http://www.hulu.com/watch/88782/rip-a-remix-manifesto
Re: Examples
“What are some examples where Disney has refused to let others build off their works?”
Uh, how about ANY usage, reference, satire, poster, remix, youtube vid, web site, fan fiction, with ANY Disney character EVER? They are THE single most litigious company in existence with regards to ANY usage, no matter how small.
Re: Re: Examples
If they are the single most litigious company in existence, you should be able to name at least one example of litigation.
Re: Re: Re: Examples
http://www.salon.com/technology/feature/2002/02/21/web_copyright/index.html
Anything else you’d like?
Re: Re: Re:2 Examples
That article doesn’t name one piece of litigation by Disney; try again.
Re: Re: Re:3 Examples
This one has a huge list. Enjoy.
http://www.post-gazette.com/magazine/20000702EpcotSide7.asp
Re: Re: Examples
When I was young there was a popular cartoon series known as “Mighty Mouse”. I do not recall if Disney went ballistic and sued.
Then there was “Tom and Jerry”, contemporary movies having a mouse as the principal character, etc.
Sounds to me that there are plenty of opportunities to create new expressions about mice.
Re: Re: Re: Examples
But not about Mickey Mouse and Superman because they’re owned by corporations. Some expressions and ideas are off-limits to the public-at-large.
Re: Examples
What are some examples where Disney has refused to let others build off their works?
Another legal trick. Trying to get people to defend a negative. How does one prove what never happened because Disney has made it clear that it will sue people who do?
In the meantime: http://lmgtfy.com/?q=%22disney+sues%22+copyright
Re: Re: Examples
You said Disney refuses to let other people make new works from their own works.
It’s not a legal trick to ask you to provide an example. It’s simple logic: if you say x, the burden is on you to provide evidence of x.
Re: Re: Re: Examples
Sweet! I can finally make a sequel to Dumbo!
Re: Re: Re:2 Examples
Why would you want to?
Re: Re: Re:3 Examples
Why would you want to?
Really? So, in Terry Hart’s understanding of the First Amendment, you’re limited by having to explain WHY you want to express yourself in a certain manner? Really?
Re: Re: Re:3 Examples
Because I’m an artist? Why does it matter to you? It’s my expression, not yours.
Re: Re: Re: Examples
HREF=http://www.dvorak.org/blog/2008/07/11/disney-the-happiest-corp-on-earth-puts-the-screws-to-florida-couple/
HREF=http://www.welcometowallyworld.com/frontpage/2009/10/17/ho-white-the-seven-dwarves-how-to-get-your-ass-sued-by-disne.html
And if you want one for Mike’s argument about proving a negative:
HREF=http://news.bbc.co.uk/1/hi/entertainment/3435969.stm
the key phrase being:
Mr le Calvez says he was forced to start his legal action after French bookshops stopped stocking his children’s book because of fears they might be sued by Disney, even though his book came out before the film.
Re: Re: Re: Examples
You said Disney refuses to let other people make new works from their own works.
It’s not a legal trick to ask you to provide an example. It’s simple logic: if you say x, the burden is on you to provide evidence of x.
It is a legal trick: asking someone to provide an example of a negative? Please. The whole point is that the content was not created. How do you show that content not created otherwise would have been? Terry, stop with the intellectual bullshitting.
Examples
“Guess we’ll never know what could be done with Mickey Mouse since we’ll all be fricken dead by the time copyright expires on him.”
You could always “Tweet It”.
Since copyright law (and patent law for that matter) does not pretend that authors create works in a vacuum, the title of this article seems off the mark.
Re: Re:
Since copyright law (and patent law for that matter) does not pretend that authors create works in a vacuum, the title of this article seems off the mark.
Except that it does. Giving one person a monopoly on the idea shows that it does.
Re: Re: Re:
that is completely specious
a) copyright law protects expression. If the expression is unique you have copyright. The only material issue with respect to prior cultural artifacts is – have you plagiarized them in which case you don’t get copyright.
b) patent law is much more explicit that prior art is directly relevant. You can’t get a patent if it can be demonstrated there is prior art and your contribution is not novel and even if you get it because no-one detected the prior art at the time anyone can litigate to get the patent recinded.
giving what you call a monopoly proves nothing.
Re: Re: Re: Re:
WOW THATS AMAZING!!!
So all I have to do is spend a couple million dollars in a lawsuit to prove prior art … BEST SYSTEM EVER!
Re: Re: Re: The difference between theory and practice
The difference between theory and practice is greater in practice than in theory.
In theory, it works like you described and everything is fine. In practice…
a) There is something called “derivative works”. Even if your expression is unique, if you based it on someone else’s (and since authors do not work in a vacuum, it is hard to completely avoid it), you can be sued and lose. And how much is needed for something to be a derivative work? Is the same story retold from the point of view of the antagonist a derivative work? Is a different story on the same universe a derivative work? Is a completely independent story but with similar characters a derivative work?
The current tendency seems to be taking an expansive view on “derivative works”, meaning that in the end you get an almost monopoly on a particular idea.
Also, plagiarism is copying something and passing it off as your own, not just copying something.
b) First, you can get a patent if there is prior art. You can even get a patent if someone else has a patent on it (there was a famous case of it, I cannot recall if it was RSA or LZW). And litigation to get the patent rescinded is very expensive, so it is not a practical option.
And even if the patent is valid, other people do not work in a vacuum. They would like to make small improvements to your patented work – except that they can’t. The theory is that they would simply license the patent; in practice, the patent owner often will not want to license, wants unreasonable conditions, it is too expensive (even if a single patent is not expensive, it is not uncommon to have to use hundreds or thousands of patented techniques to manufacture something), or they simply do not know about the patent (with millions of patents, written on a code which needs a lawyer to decipher, and with scope which is only really decided after litigation, it is simply not possible to know which ones apply).
It is no wonder patents create a monopoly, and often several overlapping monopolies, generating extremely wasteful amounts of litigation.
Re: Re: Re:
Neither copyright nor copyright law embrace “ideas”. In fact, at the “ideas” stage neither Title 17 nor Title 35 even come onto play since the former to apply requires expression fixed in a tanglible medium, and the later requires at least a conception, i.e., a complete and operative form of an invention that must subsequently be reduced to practice either actually or constructively.
Can “ideas” per se possible be eligible for enforcement under some legal theory? In very limited instances the answer may be “yes”, but this is a matter generally within the scope of contract and unfair competition law, laws that are divorced from federal copyright and patent law.
Re: Re: Re: Re:
Neither copyright nor copyright law embrace “ideas”. In fact, at the “ideas” stage neither Title 17 nor Title 35 even come onto play since the former to apply requires expression fixed in a tanglible medium, and the later requires at least a conception, i.e., a complete and operative form of an invention that must subsequently be reduced to practice either actually or constructively.
I love it when lawyers stubbornly insist that the law says something so the damned reality before their very eyes can be ignored.
Re: Re: Re:2 Re:
Try to secure a copyright on a work that has not been fixed in a tangible medium of expression.
Try to secure a patent on an invention that has neither been conceived nor reduced to practice.
Ideas are not protectable (except in some circumstances under, perhaps, law such as contract law) under either copyright or patent law.
If you can show me a copyright on an “idea”, as opposed to a “work”, I will certainly reconsider my comment…but this will likely be a bit difficult since by definition an “idea” is something that is does not exist in any tangible form.
If you can show me a patent on an “idea”, as opposed to an “invention”, I will certainly reconsider my comment…but this will also likely be a bit difficult to do since be definition “conception” commences the “inventive process” and “reduction to practice” concludes it.
There are circumstances where a copyright or a patent can present issues, but “ideas” is not one of them.
Re: Re: Re:3 Re:
If you can show me a copyright on an “idea”, as opposed to a “work”, I will certainly reconsider my comment.
“Comin’ Through the Rye.” The unofficial sequel to “Catcher In The Rye.”
Not a single sentence from “Catcher” was used in the sequel, but it was still found to be copyright infringement.
Re: Re: Re:4 Re:
Copyright law is not “copy – not ok”, “not copy – ok”. It is significantly more nuanced.
Perhaps if you read the opinion by the Federal District Court this will be more clear.
See: http://www.scribd.com/doc/17040458/Salinger-v-Colting-Opinion
Re: Re: It's the perpetual ownership that's the problem/indicator.
No. It’s not the monopoly that shows this notion that authorship exists in a vacuum. It’s all of the one sided extensions to copyright that keep on happening that benefit “proprietors” to the detriment to the rest of society.
It’s this notion of “ownership” in perpetuity that shows a clear disregard for the fact that creative works are collaborative and derivative in nature.
Re: Re:
agreed
Re: @ 12
It does pretend authors create in a vacuum when it doesn’t protect our right to a public domain that isn’t a hundred years old!
As copyright duration is extended and extended we loose free access to the culture of the twentieth century and loose an important fuel for our creativity.
I’m not very much into Mickey Mouse, but take for instance Jazz music. It thrives on building on copyrighted songs. I’m sure many many Jazz musicians “go illegal” in order to make a living from their art, they couldn’t possibly clear all the rights. Copyright is not protecting these creative people’s side of the debate.
Re: @ 12 pt 2
Beethoven’s works are in the public domain. I can get them for free on IMSLP or buy cheap editions (it’s nice to have real life scores). They cost about $10.
One of the greatest works of the Twentieth century is Messiaen’s Turangal?la Symphony. The score costs about $150 (I was actually glad to check again for this post, it used to cost $300!).
I would love it if copyright lawmakers acknowledged that creative people need a healthy public domain. Which is what they seem to be totally ignoring.
Preaching to the choir
I couldn’t help but write about this myself, not long ago, in the context of game design (shameless plug). I also can’t help but wonder if it’s going to convince anyone who isn’t already convinced. Not that it’s impossible, but it’s so rare I sometimes lose hope.
This argument is fallacious.
a) of course they don’t create in a vacuum. nothing is so created. so reductio ad absurdum nothing can be created.
b) copyright does not protect the ideas – some of which, or precursors of which were indeed floating around – but the expression. And the expression was not floating around. ‘Catcher in the Rye’ was indeed written in a time and place but it didn’t just fall off a tree.
Re: Re:
This argument is fallacious.
Your understanding may be, but the argument is sound.
a) of course they don’t create in a vacuum. nothing is so created. so reductio ad absurdum nothing can be created.
That statement is, of course, meaningless, and has nothing to do with what I wrote.
b) copyright does not protect the ideas – some of which, or precursors of which were indeed floating around – but the expression. And the expression was not floating around. ‘Catcher in the Rye’ was indeed written in a time and place but it didn’t just fall off a tree.
Interesting example. Since a US court recently banned entirely unique expression in the format of an unofficial sequel to Catcher in the Rye. Seeing that decision, I’m at a loss as to how anyone can still claim copyright law only protects expression and not ideas.
Lawyers love to hang their hat on the idea/expression dichotomy, which sounds so good in theory. The reality is that there is no such thing.
The point remains. Copyright is based on the idea that works are created wholly from an individual’s own genius, and then protects it.
It’s “assumed” that authors do not create value in a vaccuum. Is there less creation now then at some time before? Are musicians making less than before? Is the movie industry making less than before? How has increased copyright duration effected this? Has there been a noticeable dropoff in creativity since the CTEA? Have we seen less new works, or less revenues since the Sonny Bono Act?
Re: Re:
See, authora can NEVER create value in a vacuum, because of societal constructs.
Basil, the Great Mouse Detective is directly based on the works of Arthur Conan Doyle, who based Holmes on a colleagus of his.
Popeye is a direct ripoff of Steamboat Willie. That fact that the characters are human does not change that.
Snow White is a direct rippoff of the folktale.
Shakespeare was a p[lagiarist of the highest order, and yet he’s one of the most crlebrated playwrights in the world.
Chaucer literally stole his stories frrom people and published them. Sound familiar? Look up one Gilderoy Lockhart.
Wihtout some form of plagiarism, most of the things we have would not exist.
Copyright durations mean that works, such as Beethoven’s 5th, are NOT PUBLIC DOMAIN. It’s not about the creating of the work; it’s about the stifling of new, yet derivative, works.
Re: Re: Re:
All those examples exist, so how did copyright stifle them?
Re: Re: Re: Re:
Copyright has stifled the modification of previously PUBLIC DOMAIN WORKS. The Faery Tales by the Brothers Grimm have been modified, and are covered by public domain.
How does it make sense, then, that Snow White, Cinderella et al are copyrighted, after they became public domain?
Re: Re: Re: Re:
Back in that time, copyright did not last forever.
Re: Re:
The old ones that care for copyright are making less art, they don’t work as hard anymore.
The new ones trying to do something new are flourishing so you get the idea that copyright does not do the work it is supposed to do and that is to incentivize people to create more because the people who need it the most don’t produce anything and the people who don’t need it and even ignore it are the ones producing. When your supposedly most creative people produce less there is something wrong. Doubt it?
Got the numbers to disprove what I just said please show it to us.
Lets get the hundred top artists of today and compare them with the top artists of yesterday.
Heck the daughter of Curtis Lee is a great example she did a lot less then her father but probably has more money. Curtis made around 200 movies others today make a 100 that is a drop in production.
Re: Re:
It’s “assumed” that authors do not create value in a vaccuum. Is there less creation now then at some time before? Are musicians making less than before? Is the movie industry making less than before? How has increased copyright duration effected this? Has there been a noticeable dropoff in creativity since the CTEA? Have we seen less new works, or less revenues since the Sonny Bono Act?
Geeze. Correlation != causation. Terry, you’re ruining my view on you as an intellectually honest player in this debate.
Do you really not understand the difference between absolute advancement and the rate of advancement?
Re: Re: Re:
Do you really not understand the difference between absolute advancement and the rate of advancement?
I’ve never heard of that. Could you break it down for us?
Re: Re: Re: Re:
I’ve never heard of that. Could you break it down for us?
Are you serious, or are you joking?
Re: Re: Re:2 Re:
I was being serious. I think you mean the actual growth vs. the rate of growth. For example, we could have more works being created overall, but at the same time, the rate of creation per person could be decreasing. Is it something like that?
Re: Re:
Yes.
Re: Re:
You know, I think the important contextual factor here is the internet.
As the internet has grown, both production and access have increased. Stronger copyright? No. The word of the law is stronger, but its actual effect on public behaviour has never been weaker. The internet has done good for the public, and done it because it has overcome the restrictions of copyright.
X "do not create value in a vacuum" is basis of
all justice regarding proportioning societal rewards. I’ll just note that The Rich like to spread the myth that they’re the source of all ideas and production, not to wander too far off topic. Also, that “corporate” ownership of copyrights is a *big* problem. The Constitution refers only to authors, not a corporate sponsor. — Perversely, the “corporate” version is more socialist in effect than the European method. But American “conservatives” regard socialism as okay if big business is the beneficiary (Wall Street BAILOUT, for instance).
[Since this thread was hijacked by the interogatory method, I’ll mention again that a mechanical filter for number of question marks in one post, and limiting frequency of posting would be a great help here. Even if not totally effective, the effort to bypass such mechanical limits would provide valuable information in itself.]