Copy Catfight

How intellectual property laws stifle popular culture.

On August 19, 1999, in Los Angeles, a mild act of censorship took place. Twentieth Century Fox, the colossus behind the cult series Buffy the Vampire Slayer, sent a letter to Alexander Thompson, a 35-year-old data processor and devoted Buffy fan. Thompson had spent countless hours transcribing each episode of the show, complete with descriptions of the scenery and action, and had posted the results on the World Wide Web, to his fellow fans' delight. Joss Whedon, the show's writer and producer, had praised Thompson for the job he'd done, even autographing one of the transcripts.

Whedon, however, did not own the copyright to his work. Fox did. And Fox, the company told Thompson, "has a legal responsibility...to prevent the unauthorized distribution of its proprietary material."

In other words, Thompson had to remove his transcripts from his Web site or face a lawsuit.

As far as repression goes, this no doubt sounds trivial. Fox is clearly being stupid--Thompson's transcripts were a resource for fans, not a substitute for the show--but the company was within its legal rights as the owner of the Buffy program. What it did was obnoxious, silly, and bad business, but it's hardly a threat to free speech. Right?

Don't be too sure. There is an inherent conflict between intellectual property rights and freedom of speech, a tension between your right to control a story you've written and my right to use it as raw material for my own work. Thanks to two trends, that tension is turning rapidly into a collision--one where more than the convenience of online Buffy fans is at stake.

On one hand, as information has grown more valuable, copyright and trademark law has become increasingly restrictive. At the same time, there has been, in the words of MIT media studies professor Henry Jenkins, an "explosion of grassroots, participatory culture," a new high-tech folkway that not only draws on pop culture but appropriates from it more easily than ever before, and disseminates itself on a wider scale.

Now the companies atop the culture industry, from Fox to Disney to LucasFilm, are starting to notice this alternate universe of fans, parodists, and collagists. They don't quite understand what they're finding, and for the most part they don't like it. And they've got the government on their side.

In theory, a copyright is simply an incentive to create: Compose something original, the Constitution says, and we'll make sure you get a chance to profit from it. Trademark law is even simpler. It's a protection against fraud and consumer confusion, a recognition that Nike shoes are a particular product, and that if I start selling some homemade slippers as "Nikes," I am deceiving my customers.

Copyrights, unlike trademarks, have always posed problems, even if you think they're necessary. They are, after all, government-granted monopolies; as such, they should be strictly limited and carefully watched. If someone wants to extend their reach, he'd better have a compelling argument for doing so, and lawmakers should approach his proposal with due skepticism.

Instead, Congress acts as a rubber stamp for copyright holders, especially the big campaign donors in the entertainment industry. At the dawn of the republic, copyrights lasted for just 14 years and could be renewed for another 14. This period has been gradually extended, especially lately: It has been lengthened 11 times in the last 40 years, most recently by the Sonny Bono Copyright Term Extension Act of 1998.

Before the Bono Act, new or recent works copyrighted by individuals were protected for life plus 50 years. Afterward, protection lasted for life plus 70 years. Corporate-owned copyrights were also extended by two decades, to 95 years, as were all copyrights for works produced before 1978. The push for the new law was spearheaded by Disney, whose most famous character, Mickey Mouse, was scheduled to enter the public domain in 2004, with Pluto, Goofy, and the rest following shortly thereafter. Disney is notoriously jealous with its cartoon cast: In one of the most famous copyright cases of the '70s, it successfully halted sales of Air Pirates Funnies, a risqué underground comic by Dan O'Neill featuring the Disney characters, even though the comic was clearly a Mad-style parody.

The prospect that just anyone would be allowed to produce his own Mickey merchandise was evidently unthinkable at Disney HQ, and the company exploited its connections to get the copyright extension passed. The very day Senate Majority Leader Trent Lott became a co-sponsor of the bill, the Center for Responsive Politics reports, the Disney Political Action Committee donated $1,000 to his campaign chest; within a month, it had also sent $20,000 in soft money to the National Republican Senatorial Committee. And Disney had help: Other entertainment giants, from Time-Warner to the Motion Picture Association of America, joined the lobbying effort, as did some well-known songwriters, such as Bob Dylan, and heirs of dead songwriters, such as George and Ira Gershwin.

The irony was rich: Disney, which draws heavily on public-domain characters and stories in its own products (Aladdin, the Little Mermaid, Mulan), was fighting to keep the cultural commons closed. And Dylan regularly bases his work on the chord structures, and sometimes lyrics, of older folk songs--"The Girl from the North Country" on "Scarborough Fair," "I Dreamed I Saw St. Augustine" on "I Dreamed I Saw Joe Hill Last Night." Yet there he was, demanding royalties from his music until 70 years after his death.

Meanwhile, the Gershwin heirs, who didn't even write the songs that keep them wealthy today, found themselves essentially arguing that the 20-year extension would somehow be a further incentive to their dead ancestors' creativity, a claim that smacks of either spiritualism or desperation.

"It's a joke," declares David Post, a professor of law at Temple University. "It's a disgrace. There is no better example that I can imagine, literally, of Congress caving in to small, highly focused special interests. There is no conceivable public benefit from the additional 20 years. Zero." Copyrights don't bother Post, but retroactive extensions of them, which by definition cannot affect the original creator's incentives, do. "Congress was bought," he continues. "This was the sale of legislation in the crudest form. They should be ashamed."

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