Copy Catfight

How intellectual property laws stifle popular culture.

Jesse Walker from the March 2000 issue

(Page 3 of 4)

The most active amateurs are probably the members of various fan subcultures. I own, for example, a CD called Do It Again: The Kover Kontroversy Kontinues, a collection of songs composed by the British rock band the Kinks and performed by members of an Internet fan group, the Kinks Preservation Society. The contributors live everywhere from Holland to Hawaii to Brazil; some recorded straightforward remakes, while others reworked the songs in interesting ways--translating the lyrics into Portuguese, say, or adding a reggae rhythm, or splicing in a verse from the folk standard "Wayfaring Stranger." The performers never bothered to get the rights to the songs, figuring that wouldn't be necessary for a communal, noncommercial, low-circulation project. Legally speaking, that isn't necessarily so. Fortunately, the band doesn't seem to mind, recognizing the project as an informal tribute, not a commercial competitor. ("I personally gave Dave [Davies, the band's guitarist] a copy of the CD," reports Paul Wykes, who organized the project, "and he seemed thrilled by it.")

Not every copyright owner is so tolerant. Devotees of Star Trek, Star Wars, and the like have long produced their own fiction set in their favorite show's or movie's universe. In the last decade, this genre of writing has moved almost entirely out of the realm of small presses and zines and onto the Internet--where, being much more visible, it is also much more vulnerable to a copyright infringement challenge. This is a particular problem for fan filmmakers, a once-tiny group that has grown tremendously now that they can use relatively cheap camcorders, editing software, and computer animation instead of low-tech, silent Super 8 film--and now that their work can be viewed not just in living rooms and at science fiction conventions but on any computer screen hooked to the World Wide Web.

Thus, a Web surfer with the right software--most of it available for free--can download an astonishing array of homemade epics, varying widely in tone and quality:

• Star Wars: The Remake is a mimetic recreation of the first Star Wars film, compressed into 15 soundless minutes. Made in 1980, this specimen from an earlier generation of fan filmmaking will be utterly incoherent to viewers who have not seen the original movie, and will be rather impressive, in an odd way, to viewers who have.
• Kung Fu Kenobi's Big Adventure is a seven-and-a-half-minute short by one Evan Mather, with musical and visual allusions to everything from Mission: Impossible to A Charlie Brown Christmas. Performed by Star Wars action figures against a computer-generated animated background, this film is 50 times as inventive as The Phantom Menace and about 100 times as entertaining. My favorite scene: a recreation of the Jedi Council meeting in Menace, on a set made out of Legos. The Jedi knight played by Samuel Jackson rises and delivers a speech, sampled directly from a rather different film starring Jackson, Pulp Fiction:

  "Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of darkness, for he is truly his brother's keeper. And I will strike down upon thee with great vengeance and furious anger--"

  Yoda interrupts: "Anger leads to hate."
  Kung Fu Kenobi violates more copyrights than I could count. All the dialogue is taken directly from the soundtracks of other films. All the characters are lifted from other films, too. And I doubt Mather paid any licensing fees for the music. But it's an original work in itself, a funny movie that appeals even to ogres like me who don't care much for Star Wars. Mather has made several other pictures, each of them built, in different ways, on pop culture allusions; his latest is titled Buena Vista Fight Club.

• Star Wars: A Newfangled Hope is too big to put on the Web, but individual sites have screened it as a streaming video at pre-advertised times. It consists of the first Star Wars film in its entirety, with a new soundtrack dubbed over the old one. I haven't seen it, but according to the Mos Eisley Multiplex, an online guide to Star Wars fan cinema, it presents a world in which "Ben Kenobi's a hairdresser, Luke is one horny dope, Threpio endlessly sings showtunes and Darth has a major high-school crush on Leia."

  Redubbing--an honored comic technique ever since Woody Allen turned a Hong Kong spy flick into What's Up, Tiger Lily?, if not earlier--is a favorite method among fan directors. The most common target appears to be the Phantom Menace trailer, which exists online in countless guises.

• Macbeth Episode 5: MacDuff Strikes Back, an English project by some New Jersey high school students, is a 17-minute featurette reminiscent of the cult video Green Eggs and Hamlet. By any rational standard, it is a bad movie: It fuses Macbeth and the Star Wars films rather haphazardly, it's sometimes impossible to make out what the actors are saying, and the filmmakers didn't bother concealing the fact that they were shooting inside a school.

  But it would take a cold-hearted snob indeed not to appreciate this movie, or at least the spirit behind it. There's a message on the directors' Web site, a few sentences that sum up the spirit of the micro-moviemaking movement: "If you have a video camera lying around, and better yet some editing equipment (pretty cheap for computers nowadays), go experiment. Be your own director. Go Hollywood...use a skateboard for dolly shots, or a fishing rod for special effects. It's fun..."

That is, ultimately, the best argument for letting movies like this exist. It's not just that there's a sizable subculture that wants to watch them, and it's not just that sometimes a director like Evan Mather will make something so fun that even nonfans will enjoy the results. These movies are a first rung in the art of filmmaking, a chance for budding actors, writers, and directors to learn the rudiments of their craft. If those young auteurs want to adopt bits of the Star Wars mythos in their films, well, why shouldn't they? Star Wars is a part of our culture; it's a shared experience. And as Jenkins points out, "If something becomes an essential part of our culture, we have a right to draw on it and make stories about it....The core question is whether First Amendment protections include a right to participate in our culture." And not just to participate, but to criticize: A law that prohibits a Star Trek devotee's homages to his favorite show also restricts a Star Trek hater's right to parody the program's militarism, its view of sex roles, or its vision of the future.

There's a common-sense issue here, too. It is legal, after all, to write or improvise one's own Star Wars adventures using action figures; that is, indeed, what the toys are for. It is legal to record those playlets on film or video; this is known as "making a home movie." Shouldn't it be legal to show those home movies to anyone you please? Especially if it's all done on a non-profit, amateur basis, with no threat of direct, head-to-head competition with the official Star Wars pictures?

LucasFilm has taken an inconsistent approach to its online imitators. Some fan films--such as Kevin Rubio's Troops, a Cops-inspired parody I have not seen--have received Lucas' warm praise. Others, such as the Australian-made The Dark Redemption, have received letters from lawyers telling them to shut down their sites, or else.

If copyrights have grown more restrictive over the years, trademarks have been transformed even more radically. Once restricted to preventing customer confusion and protecting businesses' reputations, they are increasingly treated as property that no one may appropriate at all. In 1996, for example, the New York Racing Authority sued Jeness Cortez, a painter whose work often depicted the Saratoga Race Course and, thus, various Racing Authority trademarks.

In that case, the courts upheld Cortez's First Amendment rights. In other cases, artists have not been so lucky. In one infamous incident, the Rock and Roll Hall of Fame successfully sued photographer Chuck Gentile over a poster depicting its museum at dusk. The Hall of Fame not only alleged that the poster's title--"The Rock and Roll Hall of Fame and Museum in Cleveland"--violated one of its trademarks; it claimed that the building's design itself was a protected mark, thus in essence claiming a property right in the way part of the Cleveland skyline looks. The U.S. District Court for Northern Ohio sided with the museum and issued an injunction against Gentile's poster. The U.S. Court of Appeals for the 6th Circuit later tossed out the injunction, but the museum is still pushing its case in the district court.

In part, this shift reflects the increased popularity of "dilution" laws over the last several decades, culminating with the Federal Trademark Dilution Act of 1995. Under this rule, it is illegal to produce, say, Microsoft brand ramen noodles, even though that other Microsoft isn't in the noodle business, lest the lousiness of your pasta undermine the software company's reputation. When dealing with a famous mark, such as Microsoft, the dilution doctrine makes some sense: There is, after all, a reasonable argument that commercial misrepresentation is afoot. The courts have stretched the doctrine out of shape, however, applying it with little regard for whether the trademark in question is famous enough for "dilution" to be a possibility.

Furthermore, the very definition of trademark has been expanding for the last 10 years. Writing in the Yale Law Journal, Mark Lemley of the University of Texas notes that "companies have successfully claimed trademark rights in the décor of their restaurant, the `artistic style' in which they paint, the design of their golf course, the shape of their faucet handle, the diamond shape of a lollipop, the `unique' registration process of their toy fair, the shape of their mixer, and the design of their personal organizers." At some point, this stops being anything more than a way to club your competition.

The fiercest trademark battles, though, involve words, not images. As e-commerce sweeps the Internet, domain names--those ugly streams of letters that end with "org" or "net" or "com"--have become more valuable, and some companies have become upset over URLs that bear too great a resemblance to theirs. Many of the resulting conflicts don't even make it to court: The very threat of legal action is enough to cow the alleged transgressor into dropping its address, even if he'd probably prevail before a judge. "A lot of this is just bullying," comments Temple University's David Post. "A lot of these claims are totally spurious." But the simple cost of defending themselves is often too much for those on the receiving end of a legal threat. The plaintiffs in such suits tend to have more money and lawyers at their disposal.

Besides, given the vagaries of the justice system, the defendant just might lose. Late in 1999, a judge ordered etoy.com, a Web site run by some European performance artists, to take down its site or pay a fine of $10,000 a day. Its URL, the court ruled, violated the trademark held by the online retailer eToys.com--even though etoy had been around since 1994, well before eToys existed. If the older site is finally saved, its rescuer will probably be public opinion, not the common sense of a judge or jury. Two weeks after the injunction, eToys suggested that it may voluntarily withdraw its suit, its reputation battered by constant protest on the Internet. (At press time, the case is not yet closed.)

Now Congress has gotten involved, passing the infamous "cybersquatting" law in late 1999. Cybersquatting is the practice of registering someone else's trademark (or a famous person's name) as a domain name, usually in hopes of selling the domain to the trademark holder later. The new law prohibits such speculation, imposing fines of up to $100,000 and, in the process, undermining the adjudication process already hammered out by the members of the International Corporation for Assigned Names and Numbers, a.k.a. ICANN. Civil libertarians worry that it will also intrude on our right to use trademarks in real sites' addresses--that if I devote a site to criticizing Shell Oil and call it www.shelloil.org, or even www.shelloilstinks.org, I may be breaking the new law.

While it would be a good idea to repeal the cybersquatting and dilution laws, one could probably avoid even more trademark battles with more prosaic measures. Post suggests expanding the range of domain names: If eToys.com could have called itself eToys.toys, he argues, the problem might never have emerged in the first place. There is also, he adds, a case for adopting the so-called "English system," in which a lawsuit's loser pays the winner's legal costs. Such an arrangement poses some problems of its own, but it would clearly discourage frivolous, bullying suits.