Adam Savage On Why Copyright And Trademark Holders Need To Get Over Their Obsession With 'Control'

from the it's-not-about-control dept

Reader aster points us to a tested.com video in which Adam Savage talks about copyright issues. I've seen Savage mention on Twitter in the past that he's a closet copyright geek who is very interested in copyright policy, and the conversation is definitely interesting, focusing on the high profile cease and desist letter that Fox sent over Jayne hats. The frustrating thing to me, in watching this, is that the conversation jumps back and forth between copyright and trademark without clarification. In fact, they're almost entirely talking about trademark, while saying they're talking about copyright. Frustratingly, they suggest that you have to enforce copyright to keep it, which is simply not true. What they mean is that for trademark -- not copyright -- you have to make some effort to prevent confusion or your mark becoming generic if you want to keep that mark (though this has nothing to do with copyright). You can see the segment below, though the main discussion starts up around the 7:30 mark:
Still, Savage does make some really good points about fair use and the over-obsession some companies have with "control" even if it's not in their best interest. On the point of "control," he notes:
There's this construct within large corporations, which is 'we control our brand!' And the moment anyone does anything unauthorized with it, we need to shut that down. Because brand control is paramount.
To counter this, he uses the example of Lucasfilm which has generally been supportive of fan-art and fan creations, saying that they really only get involved when significant profits are being made. Of course, that's not entirely true. We've seen a few cases where Lucasfilm and its lawyers go a little overboard with threats, but the general point makes sense.
To me the lesson is that you can't ever leave the interpretation of fair use to the corporations.
Oddly, the host of the show says that it's too late for that, though that's completely wrong, too. Companies don't get to define fair use. It's still in the law and determined by courts. It may not be clear enough, but it's certainly not determined by the copyright (or trademark) holders. The host also (again, oddly) claims that fair use is mostly based on a court case from 1982 (which one?!?) and that people fear to test it. While it is true that there is some fear over bringing fair use to the courts (it's expensive and still arbitrary), there have been an awful lot of fair use cases that have gone through the courts in recent years including some key victories in recent cases that have stood strongly in favor of fair use.

But then Savage makes the key point: which is that companies need to realize that fans doing stuff in support of their brand can be a really good thing:
The other thing is to make a qualifiable assessment of what the best business practices for them are. In so many corporations you end up with this battle between the PR department -- who really does understand how to reach out to the fans and put everyone under a nice umbrella -- and the legal department which wants nothing to do with them... and is somehow anti-the fans.... So wake up legal departments. We know that you guys work hard and are smart people. But you need to understand a little bit more about this before you send these nastygrams.
He also compares the whole thing to the Streisand Effect, and suggests that he's going to go on Etsy to buy an "illegal" Jayne hat.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Jay (profile), May 23rd, 2013 @ 4:07pm

    Disagreements...

    Companies don't get to define fair use.

    I don't agree. If you read The Lewis Powell Memo you see that corporations frame the arguments regarding copyright and fair use. Most people have takedowns and other issues occur without ever trying a fair use defense in court. There are no teeth to the people having such a defense so it's useless.

    We remember that Kim Dotcom along with other victims of domain seizures have had no judicial review in their illegal takedowns.

    The host also (again, oddly) claims that fair use is mostly based on a court case from 1982 (which one?!?) and that people fear to test it.

    I'm going to go on a limb and think they're talking about Sony v Universal and its fair use rulings. Yes, that's 1984. But it just doesn't vibe that they're talking about a 1982 ruling unless they simply got the year wrong.

    What corporations have successfully done is privatize the judicial system over the past 40 years. This privatization was to be written with SOPA where corporations have more rights than people. Even now, we discuss all of the videos and takedowns issued with no fair use. That's the problem. We indeed have given corporations a lot of decisions. It's no wonder that the MPAA feels entitled to push both major parties to do what they want given how it's worked tremendously well for a LOOOONG time.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, May 23rd, 2013 @ 4:24pm

    To me the lesson is that you can't ever leave the interpretation of fair use to the corporations.

    His point would have better hit home if it wasn't spoken in the context of him conflating copyright and trademark. Total IP noobie.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    art guerrilla (profile), May 23rd, 2013 @ 4:29pm

    shooting from the lip...

    not having seen clip (tl;dw), i can say one thing for certain: he -or whoever- is functionally 'correct' in talking about copyright and trademark in the same breath...
    for 99.99% of the population, they *are* 'the same kind of shit'...

    they simply don't follow these issues like most of techdirtia, *AND* -more importantly- they don't *care* to make the distinction between the legal constraints on copyright vs trademark; they only 'know' (*IF* they know this) that there is some sort of possible legal recourse if they do this or that which is natural for them to do in the course of incorporating *something*/*anything* which *may*, *possibly*, *kinda*, *sorta* be under *some* sort of copyrightrademark whatever...

    sure, they hear scare stories which are too true about mothers being sued into oblivion for *something* about 'pirating' (and they surely won't know many -if any- of the details of the situation, much less the legal ramifications), but -like car accidents- those happen to the mythical 'other people'...

    and *surely*, doing something as natural as remixing OUR kultur to propagate new/different kultur that is OURS, is as normal and necessary as respiration...

    well, not under Empire, boobie:
    the money is theirs...
    the power is theirs...
    the media is theirs...
    the choices are theirs...
    the voices are theirs...
    the kultur is theirs...

    ...and *now*, even the very blood, sweat, and tears (C) of our existence: OUR lives, OUR words, OUR music, OUR art, OUR seeds, are milked from us, stolen from us, regurgitated to us for profit; in a diluted, whitewashed manner, unlike the original creations of OURS...

    *HOW* or *WHY* should 'natural' nekkid apes feel *ANY* differently about THEIR OWN kultur ? ? ?

    *ONLY* if they have been propagandized into believing in mythical 'intellectual property' and the insane 'rights' that have grown up around them in the course of the korporatocracy kontrolling The System...

    otherwise,
    THIS.
    SYSTEM.
    IS.
    INSANE.
    AND.
    CRUEL.

    art guerrilla
    aka ann archy
    eof

     

    reply to this | link to this | view in thread ]

  4. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, May 23rd, 2013 @ 4:59pm

    What a melange! Think hit EVERY one of your wacky notions!

    Well, no, I don't see a clear "piracy promotes sales", though gets near it.

    I'm going to pick out this from the mess: "Frustratingly, they suggest that you have to enforce copyright to keep it, which is simply not true." For use as my launch point, though I SEE the way you mean it; however, it's more important to note that while it's literally true that you can have your copyright yet not enforce it, you LIKELY won't get any money from your product that way! And other people will, so it's doubly immoral. And, yet again, I hold that morality is an essential point about copyright, or on trademark here, at least as far as your text explains the shouting match.

    But we know Mike isn't concerned about morality, so drop that.

    On to the "control" aspects. -- IF you've worked to make a bit of intellectual property, then you own it just as much as if your labor shapes a physical object. Of course once you've done the labor there is always the lazy many who covet the item and will steal it if they can. Thieves use a variety of word tricks to undermine ownership, and one of them is the loaded concept of "control". They'll argue that "control" isn't in your best interests, that you're not playing "fair", call you greedy merely because you want a little from everyone in exchange for a highly-valued item that the thieves couldn't and wouldn't make. And that's clearly the way "control" is used above.



    Take a loopy tour of Techdirt.com! You always end up same place!
    http://techdirt.com/
    You've found the site of Internet Quipper Mike "Streisand Effect" Masnick!
    12:59:13[n-482-4]

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    AC Unknown, May 23rd, 2013 @ 5:02pm

    Re: What a melange! Think hit EVERY one of your wacky notions!

    Quit pushing your idea of "morality", OOTB. what may be "moral" to you is "immoral" to someone else.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Ezekial, May 23rd, 2013 @ 5:13pm

    This, from the guy who censors the brand name of everything they use on Mythbusters. Guess he wouldnt want one of them to sue for using their product in a way they didnt want him to.

     

    reply to this | link to this | view in thread ]

  7. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, May 23rd, 2013 @ 5:24pm

    Re: Re: What a melange! Think hit EVERY one of your wacky notions!

    @"Quit pushing your idea of "morality", OOTB. what may be "moral" to you is "immoral" to someone else."

    There are absolute standards that derive from the facts of existence, it's not all relative and up for grabs the way you commie-pirates want.

    Sticking to copyright: while Disney may have "stolen" from fairy tales (no one complained), the labor of thinking up, working out, and producing Mickey Mouse was nearly all due to Walt Disney (and his gang of slave-artists to draw the many images), so the resulting film is ALL his. -- And to ENJOY the product of his work, you only had to pay a nickel! If you don't want to pay, you don't have to, but you've then NO right to enjoy the content. THAT'S A MORAL DEAL, plain and simple. -- Of course Disney is bad example for later years, but was absolutely true up to 28 years from creation date.

    And no, I'm not going to shut up. But you just keep pushing your immorality of taking what you haven't created, because that too serves MY purposes!

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, May 23rd, 2013 @ 5:37pm

    Honestly, I've always thought it was less about "control" and more about thinking the thing they own is valuable in a way that means it needs to be hoarded. They don't realize that A) their thing is not, in itself, really all that valuable in the grand scheme of things and B) giving the thing they own away freely increases its value. The value they're assigning to their works is both artificial and inflated... and if you think about it, if it really were the "valuable property" they want to believe it is, they'd damned well be paying property tax on it. (I desperately want some lawmaker to suddenly start talking about taxing corporations' intellectual property as if it were real property because I want to see all the back-pedaling from the bizarre inflation that goes on when they talk about what they've lost to piracy.)

    I've written this before on a techdirt article, so forgive me for repeating myself, but if the people who owned Star Trek in the early 70s had come down like a ton of bricks on the fans who were throwing cons where they charged people entry, printing and selling zines, and creating and selling art (the way Paramount's lawyers totally would do today and sometimes sort of try to do, only to be slapped down by the fans), Star Trek would not be the fat-and-sassy cash cow Paramount is milking to this day. STAR TREK WOULD BE COMPLETELY, UTTERLY FORGOTTEN. Paramount considered Star Trek worthless, you could have bought the whole thing for about a hundred grand; it was beneath Paramount's notice so they didn't care what the little people did with it. Considered worthless and given freely away, Star Trek became an incredibly valuable "franchise" (a phrase I detest). The fans gave it worth.

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    Jay (profile), May 23rd, 2013 @ 6:04pm

    Re: Re: Re: What a melange! Think hit EVERY one of your wacky notions!

    Sticking to copyright: while Disney may have "stolen" from fairy tales (no one complained), the labor of thinking up, working out, and producing Mickey Mouse was nearly all due to Walt Disney (and his gang of slave-artists to draw the many images), so the resulting film is ALL his.

    No. He stole from Grimm Fairy Tales, who took from thousands of years of stories to tell the children in regards to good moral upbringing.

    Then you have to think about this... Walt Disney is DEAD!

    He no longer has anything to do with creativity. His corporation is a shell, meant only to make money.

    And to ENJOY the product of his work, you only had to pay a nickel!

    Wrong. The public enjoyed his work and nowadays they enjoy it on the Pirate Bay since Disney's Vault is a figment of our imagination.

    If you don't want to pay, you don't have to, but you've then NO right to enjoy the content.

    Nope. I can enjoy it in a number of legal avenues without paying for it. A friend has a DVD. Or a friend has a VCR tape. And I've yet to pay. The same as people sharing media nowadays on Pirate Bay that you can't seem to wrap your head around.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, May 23rd, 2013 @ 6:33pm

    Re: Re: Re: What a melange! Think hit EVERY one of your wacky notions!

    So the benchmark is if no one complains, it's legal. Thanks for admitting that. Unless at any point I am made aware of any wishes of the copyright owner, anything I do is legal because no one complains. Thanks for clarifying that for me, out_of_the_blue. Your morals are superior and I will follow them to the letter.

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    teka (profile), May 23rd, 2013 @ 7:34pm

    Re:

    To be fair, that is probably more an issue of caution on the part of the production crew/Discovery.

    If the company that is more or less paying all the bills for the show says "don't give This rental company free advertising and don't invite the possible hint of a threat of a possible lawsuit from That company for using their branded beer to smash artificial skulls" then you get out the blur tools.

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    Chronno S. Trigger (profile), May 23rd, 2013 @ 8:22pm

    Re: Re:

    "To be fair, that is probably more an issue of caution on the part of the production crew/Discovery."

    That. I've dealt with the Discovery channel before, not for Mythbusters, but another show. They're so paranoid about what's shown. The company I was working with at the time had to remove anything and everything with names that weren't directly involved with the recording. The event calendars had to be removed from the tables out of fear that some small band name might be shown.

    Hell, the agreement I had to sign just to be in the same building was insane to possibly the point of unenforceable. Funny thing is, I was the only one to read it before signing it.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, May 23rd, 2013 @ 8:30pm

    Re: Re: Re: What a melange! Think hit EVERY one of your wacky notions!

    There are absolute standards that derive from the facts of existence

    This is false on its face. Morals are derived from the standards of a society. There is NOTHING that is always moral or always immoral.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, May 23rd, 2013 @ 9:51pm

    Can anybody press the "nuke from space" button a couple of times and see if we get lucky hitting copyright?

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    anonymouse, May 24th, 2013 @ 12:06am

    seriously!!!

    The basic problem with copyright at the movement is that it is impossible for the monopolists to let the market do what it wants as then the content creators would realise how much they are losing every day.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    anonymouse, May 24th, 2013 @ 12:07am

    seriously!!!

    The basic problem with copyright at the movement is that it is impossible for the monopolists to let the market do what it wants as then the content creators would realise how much they are losing every day.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    PaulT (profile), May 24th, 2013 @ 12:40am

    Re: Re: Re: What a melange! Think hit EVERY one of your wacky notions!

    "Disney may have "stolen" from fairy tales (no one complained)"

    No, because it all happened before Disney pushed the twisted version of copyright you so slavishly follow and worship. In Disney's time, he was able to take freely from works by dead authors. Those authors, in turn, took from centuries of traditional stories by dead authors. Nobody complained because there was literally no problem, morally or legally, in doing so. It's only now that current generations are blocked from taking from Disney's stories now that he's dead. People are complaining because they're blocked from doing perfectly acceptable things using freedoms their predecessors enjoyed without question.

    "Of course Disney is bad example for later years, but was absolutely true up to 28 years from creation date."

    So why do you support the extension well beyond that 28 years that's now in place? If that 28 year limit was still in place, half the issue discussed here wouldn't exit. But you're not honest enough to admit that, are you?

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    PaulT (profile), May 24th, 2013 @ 1:00am

    Re: Re: Re: Re: What a melange! Think hit EVERY one of your wacky notions!

    "half the issue discussed here wouldn't exit"

    Yuk, pre-coffee comment... let's try again:

    "half the issues discussed here wouldn't exist"

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, May 24th, 2013 @ 3:43am

    Re: Re: Re: What a melange! Think hit EVERY one of your wacky notions!

    There are absolute standards that derive from the facts of existence, it's not all relative and up for grabs the way you commie-pirates want.

    And there we go: up comes the word "commie." She thinks she's pushing back against the Iron Curtain to save us all from a Red Dawn. *Eyeroll*


    Sticking to copyright: while Disney may have "stolen" from fairy tales (no one complained), the labor of thinking up, working out, and producing Mickey Mouse was nearly all due to Walt Disney (and his gang of slave-artists to draw the many images), so the resulting film is ALL his. -- And to ENJOY the product of his work, you only had to pay a nickel!

    Actually, no. The trouble with copyright is that you don't own what you paid that nickel for. There are limits to what you can do with your DVD, etc. of Mickey Mouse, e.g. how many people you can show it to and where it can be shown, etc. So no, you don't "only" pay a nickel for the movie. You pay a nickel for a licence to watch the movie on the media authorised and specified by Disney.


    If you don't want to pay, you don't have to, but you've then NO right to enjoy the content. THAT'S A MORAL DEAL, plain and simple. -- Of course Disney is bad example for later years, but was absolutely true up to 28 years from creation date.

    You're contradicting yourself. Long copyright terms either are moral or they're not. Make your mind up.


    And no, I'm not going to shut up. But you just keep pushing your immorality of taking what you haven't created, because that too serves MY purposes!

    Making a huge fool of yourself on Techdirt by demonstrating unrequited passion for Mike and an unreasonable fear of imaginary communists. It's funny if we're in the right mood but most of the time it's annoying.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, May 24th, 2013 @ 12:15pm

    Re:

    "if it really were the "valuable property" they want to believe it is, they'd damned well be paying property tax on it"

    That's gold. Absolute. Fucking. Gold.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Jun 4th, 2013 @ 12:24am

    ^^^^^^^^^^^^^^^

    "if it really were the "valuable property" they want to believe it is, they'd damned well be paying property tax on it"

    That's gold. Absolute. Fucking. Gold.


    ^^^^^^^^^^^^^^^



    HEAR HEAR. I agree!!!

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This