Copy Catfight

How intellectual property laws stifle popular culture.

Jesse Walker from the March 2000 issue

(Page 2 of 4)

If the Bono bill's intended consequences are bad, its unintended effects are arguably worse. When it's unclear who owns a copyright--for an old B movie, say, or a cult writer's early short stories, or an ancient R&B record--that discourages companies from reissuing the work, even if there's considerable interest in reviving it. The potential legal hassle is simply too daunting.

Last October, the U.S. District Court for the District of Columbia rejected a suit alleging the Bono bill was unconstitutional; the plaintiffs have appealed the case, and it should be heard again by next August. One plaintiff, 56-year-old Eric Eldred of East Derry, New Hampshire, operates Eldritch Press, a popular Web site filled with digitized editions of old volumes, ranging from H.L. Mencken's In Defense of Women to books about boats. "I'm not interested in putting up works by Stephen King," he says. "I'm interested in books that are down a couple of tiers: books that are interesting, but that publishers don't find profitable to reprint." The new law threw some roadblocks in his way.

Consider Horses and Men, a 1923 collection of short stories by Sherwood Anderson. The book has long been out of print; the rights to it are owned by the Sherwood Anderson Trust, which makes money by putting out scholarly editions of Anderson's work. Many of the stories in Horses and Men will not be reprinted in any of their Anderson anthologies, and those that are will often have the punctuation "corrected" to reflect modern usage. Eldred would like to put the original book up on his Web site, so people can read the out-of-print tales and so they can compare Anderson's original punctuation to the new version. He expected the book to pass into the public domain in 1998, allowing him to do just that. But thanks to the Bono bill, the copyright won't expire for another 20 years.

And that's no aberration. Another 1923 book, Robert Frost's New Hampshire, has been out of print for more than 70 years; several of the poems have not been reprinted, and many of those which have been reprinted now include--this seems to be a theme--different punctuation marks. (It's also, Eldred notes, an attractive book in itself, with handsome woodcuts he'd like more people to see.) "Our real battle is not with the traditional publishers," Eldred explains. "It's not with people who want to make money publishing books. It's with people who want to lock up books."

A law that keeps old books out of the public domain does the same for old movies. One vocal opponent of the copyright extension is Sinister Video, a small company that specializes in reissuing old exploitation flicks. (See "Mail-Order Movie Madness!," April 1999.) "There are literally thousands of works, particularly in the area of motion pictures, that are sitting on the shelf waiting for the freedom of the public domain," the company noted in a statement. "The large companies that own the rights to them have no intention of ever making most of those works available again on a widespread basis." Thanks to the Bono Act, "Copyrights on all works will be extended so that the major companies can continue to exploit the small percentage of works that are still profitable to them--the rest be damned!" Damned indeed: In 20 years, a lot of those "protected" movies will have physically disintegrated. (For that reason, a film preservation group and a movie archive have joined Eldred's suit against the Bono law.)

For those who can't wait for those movies to enter the public domain, there is a loose distribution network that might satisfy them. But it exists in a gray area: not quite illegal, but always subject to the possibility that someone will decide a tape violates his copyright. For the most part, the videos are available only by mail order, though some specialty stores carry them as well.

One such store is Cinefile Video, a film buff's nirvana located next to Los Angeles' famous Nuart theater. Founded last May by four refugees from another video shop, Cinefile carries tapes that range from obscure industrial films to footage from Orson Welles' unfinished Don Quixote, from Italian horror-porn to classic Soviet silent cinema, from ancient TV specials to Grade Z movie trailers. "We'll buy anything that we find that we know you just can't find anywhere else," reports co-owner Hadrian Belove, "even if I don't particularly like it. There's a certain respect I have for the archival value of having such really weird tapes."

Most of the store's wares are regular copyrighted tapes, though many of them have gone out of print. Some have copyrights that have expired; others were never copyrighted; with others, no one's sure who owns the rights at all, and someone decided to release the films anyway. Some are foreign movies that don't have official distributors in the United States, thus giving Americans the right to sell dubs of them on demand.

And then, Belove concludes, "There are certain companies that own things and purposefully don't release them, either because they think they're embarrassing or--who knows?--because of some vindictive streak." Disney, for example, will not allow anyone to sell or rent Song of the South, a 1946 film of Uncle Remus stories that is periodically damned for its alleged racism. It is indisputably illegal to carry those movies, and Cinefile will not stock them. Belove does have his own copies of several such tapes, however, and often personally lends them to his store's customers for free--thus moving the transaction out of the marketplace and out of the reach of the company lawyers.

Song of the South, of course, would be covered by a copyright whether or not the Bono bill was in effect. Disney's efforts to suppress it indicate that the trouble with intellectual property laws goes deeper than the length of time a work can be monopolized. It can erode free speech to monopolize a work at all.

The most dangerous thing about restrictive copyright laws isn't what they do to old works. It's what they do to new ones. Copyright has traditionally been tempered by the doctrine of "fair use," which allows a limited amount of appropriation for the purpose of parody or criticism. (That is why book critics, for example, do not have to get permission to quote the texts they are reviewing.) Fair use is not dead: In the 1994 case Campbell v. Acuff-Rose Music, Inc., the Supreme Court ruled unanimously that the rap group 2 Live Crew had the right to parody the old Roy Orbison hit "Oh, Pretty Woman," declaring that "a parody's commercial character is only one use to be weighed in a fair use enquiry," and that the new record was clearly "commenting on the original or criticizing it, to some degree."

Unfortunately, the courts have not been consistent friends of fair use. Two years after the Campbell decision, for instance, Dr. Seuss Enterprises successfully convinced a federal district court to issue an injunction against The Cat NOT in the Hat!, an O.J.-oriented parody by "Dr. Juice." Splitting every hair in sight, the court ruled that the parody defense applied only when there was "a discernible direct comment on the original." And Dr. Juice's book, the court ruled, was lampooning the Simpson case, not The Cat in the Hat; Seuss' story merely provided a narrative framework. The U.S. Court of Appeals for the 9th Circuit agreed: "While Simpson is depicted 13 times in the Cat's distinctively scrunched and somewhat shabby red and white stove-pipe hat," it ruled, "the substance and content of The Cat in the Hat is not conjured up by the focus on the Brown-Goldman murders or the O.J. Simpson trial." Therefore, the book was bannable.

Nor is fair use consistently protected for the purpose of criticism. There is a long tradition of letting critics and scholars quote passages from books. There is much less precedent for quoting, say, a 30-second excerpt from a movie on a CD-ROM, or 10 seconds of a song in an online journal, partly because CD-ROMs and Web sites have not been around that long and partly because the courts seem to regard sounds and images as somehow different from text. The editors of one recent critical collection, The Many Lives of the Batman, discovered that they could not freely quote images from comic books, a tricky problem if one wants to make an argument about the placement of words or images within a panel or the relation of one panel to another. "If you can't quote what you're talking about," comments MIT's Jenkins, a contributor to the Batman anthology, "then at a certain point it becomes impossible to talk about it at all. You cut off certain ideas from being heard."

One of the most common sparks for a copyright fight is the practice of sampling, in which parts of older records are spliced and recycled in newer tunes. In 1991, for instance, the long-forgotten '70s pop star Gilbert O'Sullivan, discovering that rapper Biz Markie had appropriated three words from his song "Alone Again (Naturally)," successfully sued, not for a share of the royalties, but to suppress Biz Markie's record altogether.

These days the issue extends far beyond music. "We now live in a culture that is based on sampling," Jenkins argues, "with new means of poaching and redoctoring images. It's a new aesthetic." Where samizdat artists once had to make do with photocopiers and audio cassettes, they now can use videotapes, camcorders, Photoshop, digital film editing, recordable CDs, MP3 files, and the Internet. The result has been an explosion of amateur films, fiction, and music, all of which can be "published" for a minimal investment by putting them on the Web.