Creative Control - Part 2
The Cons of Copyright
There are problems with that system. When copyright can be owned by companies exploiting creators on a work-for-hire basis, you end up with companies like Disney who’ll pressure to keep Mickey Mouse in copyright by extending the period to an absurd degree. When it can be bought up by a company that exists solely to profit from such ownership, you end up with companies like the owners of “Run, Rabbit, Run” who’re basically exploiting the work of others to make easy money while making a reuse of the most negligible import all but impossible because they simply don’t give a fuck. When the automatic transfer to an estate leaves the copyright in the hands of individuals happy to ignore the original creator’s concerns, you end up with the family of Federico Garcia Lorca being too restrictive, exerting a deeply dubious editorial hand with poetry that — shock, horror — deals with homosexuality. Or you end up with the estate of Robert Zelazny not being restrictive enough, allowing Amber books to be written when Zelazny himself expressly stated he didn’t want this.
Personally, I think a shake-up to copyright legislation would be no bad thing. For a start, we could put the rights into the public domain upon the creator’s death unless expressly passed on in a will. A creator has the right, I’d say, to ensure that their loved ones enjoy the benefits of their legacy for a reasonable period, but they have to exercise that right. And actually, I’d bring in an “invalidation of contract” provision. Which is to say that any executor of an estate acting in contravention of the express wishes of the original creator is in breach of an implicit contract entered into in their acceptance of the copyright as part of their inheritance. In such cases, they have abrogated their responsibilities and thus the rights that go with them. You could require such a suit to be brought by a complainant with a relationship that validates a claim to succession as executor. You could define what legitimises such a claim in all sorts of interesting ways, if you want to. A lover or a long-term friend and fellow writer might well be more likely to treat a gay writer’s poetry with more respect than immediate relatives whose concern for his “good name” is really a concern for their own. Or you could push the envelope further and allow anyone to bring such a suit, on the principle that, if it’s upheld, the copyright enters the public domain. Personally, in the case of derivative works — unsanctioned sequels and prequels, spin-offs and cash-ins — where the production of these is deemed the definitive action which invalidates the contract, I’d even transfer the copyright for these to the public domain. Sorry, mate. You piss on the creator’s grave, you abrogate any creative rights associated with that action.
Work-for-hire and corporate ownership are gnarlier issues, perhaps. I don’t see any good reason why a copyright transferred by purchase should last longer than a copyright transferred by inheritance, and I’d love to see Disney shitting bricks if that period was set at 50 years, say. It would seem only fair to have rights then reverting to the creator, if they’re still alive, or to an executor explicitly nominated in the creator’s will. But in the case of purchase the contract is explicit, not implicit, and its terms are likely to be pretty absolute. Where the transfer of copyright takes place as a cash transaction, that’s pretty much going to render any claim of abrogated responsibilities unsustainable, because the buyer’s only responsibility is to follow the terms written into that contract. Other than that the creator gave up any say on what could be done with their work when they signed on the dotted line. It’s the sort of situation you get in the comics industry, in programming, or in the entertainment industry, of course, with cut-throat corporate bastards like Disney, and as unpalatable as it is to see creators exploited, you either have to disallow such contracts as inherently inequitous or, well, suck it up. The inequity can be and is addressed with the sort of legislation that gave the estates of Siegel and Shuster a form of co-ownership of Superman with DC Comics. It would be nice, I think, to see this right to terminate the assignment of copyright extended, in whatever modified form was necessary, to the creators of some of the more recent seminal works in the same industry — Alan Moore’s Watchmen, Neil Gaiman’s Sandman. But ultimately this seems to me to be about contracts rather than copyright itself, about what can be done, if anything, to redress exploitation when it’s the spirit of the law that’s been breached rather than the letter.
Whatever reconstruction of copyright legislation might be in order though, we are not dealing with the wildly unrealistic “problem” painted by Masnick. It is not, I’d say, even a remotely plausible scenario of how things might be if the copyright system ran amok!!! He’s saying that “no new creative works could be done without getting permission.” None. Not a single one. This would require that every single work that could be done, theoretically speaking, must be of such a nature that someone, somewhere could challenge it on grounds of copyright infringement. This is a statement about the essential nature of all works of art, that they are all necessarily contestable, because this is how art is made. What Masnick spectacularly fails to see is that even if this were true, even if copyright legislation became so wildly draconian, in the cloud-cuckoo-land of an imagined future, as to render all new creative work open to challenge, all those existing in-copyright works they were purportedly plagiarising would be themselves contestable. Any system sufficiently onerous that all new works were by nature transgressions would be sufficiently onerous that all old ones would be similarly in breach of its rules. If the “problem” was really a matter of some errant pretence “that there is a true original creator who deserves credit, money or control” and all those pretenders-to-originality had a legal system by which they could actually, realistically challenge any new work that could conceivably be produced, their own works would be equally susceptible to such challenges. All but the very oldest works still in copyright — which is to say, those works right on the verge of going out of copyright anyway — could be contested by the rights-holder of some earlier work.
Is it possible perhaps, just maybe, that this is why plagiarism is defined in very strict terms so as to only cover the sort of copying that actually fucking matters? Could it be that the legislation deliberately sets clear limits on what is open to challenge and what is not in order to reflect the reality — that the overwhelming majority of creative works, if they exploit the work of others at all, do so in a manner that is acceptable, but that a tiny minority of not-very-fucking-creative-at-all works are exploiting the work of others in a manner that is simply not acceptable? Could it be that the legislation is actually setting the definition of what constitutes an “original” work, as far as the law is concerned, in its identification of a few very specific features by which a work can be deemed criminally lacking in this “originality”? It doesn’t seem too wild and wacky an idea to me that even if all creative works could, theoretically speaking, be considered “derivative” in some shape or form, the purpose of copyright legislation is to allow for legal action in the subset of cases — and only in the subset of cases — where they are exploiting another’s labour without capital recompense.
Standing on the Shoulders of Giants
Maybe we’re all “standing on the shoulders of giants,” but maybe sometimes it’s simply wrong. Mostly it means jumping from one shoulder to another, this giant to the next, learning to see the world from their perspective until you can stand tall yourself and maybe, hopefully, one day be the giant whose shoulders a later generation stand on. Nothing wrong with that. Standing on the shoulders of a few particular giants for a good long while though, because you want to really understand their view, and doing so without giving them credit, (like if I didn’t acknowledge my debts to Aeschylus, Euripedes, Virgil and their translators,) that’s just bad form. It’s not illegal but it’s bad form. Standing on the shoulders of living giants like that, sneakily having them carry you somewhere without their permission, (like if I simply reused verbatim some modern translation of Inanna’s Descent,) that’s just plain wrong. At very short distances, if you have a very good reason for it, and due credit is given, it’s fair enough, (which is why it’s called “fair use” or “fair dealing”,) but otherwise you need to ask, and that giant is quite entitled to refuse outright or set conditions and require recompense. Standing on the shoulders of dead giants and being carried like that when the wake is barely over and that giant is in the hearse of culture-at-large on their last great journey to the graveyard? (Like if I reused Gardner’s Gilgamesh verbatim in the next book?) Well, it’s possible that giant wouldn’t object but it’s just as possible they’d rule it out of the question, or would want their next-of-kin to have the final say, the power to deal or veto. And if you really respect that giant then you should respect their wishes.
The idea that all of these permutations of “standing on the shoulders of giants” are rendered acceptable or unacceptable in law in the name of progess, the idea that it’s all some sort of strategy for encouraging individual creators to continue striving to stand tall as giants, an attempt to prevent them from just sitting down and letting their legs atrophy because there’s no guarantee of a nod, a tip or even a polite request for consent when others decide they want to stand on your shoulders — this is wrong both practically and in principle. The creators are going to carry on striving to be giants regardless. They don’t need encouragement cause they get it in the rush of suddenly seeing the world from a new perspective, whether it’s because they’re standing on the shoulders of giants or because they’ve learned how to stand just that little bit taller themselves. They will strive for years — for decades — with no reward whatsoever and no expectation of reward because there is never any guarantee that they will become that giant or, even if they do, that they will be recognised as such. They’ll strive against the skepticism of those who think you’re somehow born a giant and who, looking at this would-be creator, see only a piddling little hobbyist, born to be the height they are. They’ll strive against scorn and condescension, disapproval and doubt, their own as much as anyone else’s, continuing even as they grow taller and taller because the change is so gradual — and they only really stand tall when they’re alone anyway, in those unseen paintings or unread manuscripts — that it may well be that nobody notices. They’ll strive against the problem of finding the time and energy to strive when you have to earn a living. They’ll strive because they’re addicted to the striving, because the striving itself is really sort of the point, this insatiable drive to figurate. It’s not really that they want to be a giant. They just want to stand tall so they can see a little better. It’s the difference between wanting to be an artist, to have made art, and wanting to make it. At the end of the day, the encouragements and discouragements will have an effect but the incentive of copyright is not really of much import to the majority of creators who’re never going to be successful at all, never mind successful enough to be plagiarised. That’s what makes the whole “progress” idea wrong on a practical level. But simply on principle, in terms of ethics, it’s just completely bogus. Because they’re striving towards this point where maybe one day the rest of us will stand on their shoulders and be carried by them and have a hell of a time, and that’s a form of labour that we owe them for.
The way to think of copyright is not “intellectual property” but “intellectual service”. A work of art is not just a product; it’s a two-fold process of toil and transfer. All those copyrighted structurings of sounds and images — it’s not that the creator owns some abstract information-pattern, some insubstantial Platonic form floating out there in the morphological aether until the creator came along, pulled it out of thin air, and by making it manifest in the medium of their choice established their ownership of the very order encoded in this specific articulation, their ownership of every particularity of that articulation, from the low-level structures of musical or linguistic phrases to the higher-level structures of characters described in literature or represented in cinema. You can’t “own” an idea, but the distinction between idea and expression in copyright does not really mean that you can “own” an expression either. The legislation might word it in such terms but it’s like legislating ownership of numbers, like saying that whoever comes up with the most precise calculation of pi owns that particular expression of it. It’s not really meaningful to say that I own this articulation that you happen to be reading right now when it is — if it constitutes a “thing” at all — in some abstract sense, as much in your head as you read it as it is in mine as I write, as much as it is on the screen of my laptop in a document still incomplete, as much as it is on the screen of your computer in an internet browser showing a blog entry finished and published for anyone to read. Ownership is a poor concept when it comes to articulations of ideas.
But this is because articulations are processes rather than just products. Experiencing a work of art conveys that articulation into your imagination, or through it at least, idea and expression in one big package. The entirety of the articulation carries out a procedure — quite different, in all likelihood, for each reader or viewer or listener. It performs a function of figuration, each structuring of sound or image being parsed and recombined — sparking off imagination and ideation at every turn, at every level — until the process is completed, as on the last page of a book, or abandoned, as when a viewer turns away from a painting. It’s this experience that we value, not the work as a mere product, an inactive object. The object itself — book, print, disc or file — is just the means by which the transfer is made possible, and buying, borrowing or stealing a copy of it from whatever source is of zero import if no subsequent transfer takes place. Whether the copy is legitimate or not, it simply doesn’t matter if it is never used. It’s the transfer you’re paying for, if you’re paying at all, the service provided by the creator in making it available to you. You’re also paying for the toil required to set that service up in the first place, because the provision of that transfer is not without effort. That service actually working in a way that’s of value is dependent on the hard graft of the brickie, the skilled craft of the joiner, the precise design of the architect and quite possibly the apparently crack-pot vision of a mad scientist who’s used himself as the test subject in ten years of experiments with extreme living conditions in an obsessive attempt to understand the importance of houses in people’s lives — how they succeed, how they fail, how they might go horribly wrong in a Demon Seed sort of way and completely fuck with their inhabitants. That’s the sort of toil that may well have gone into this house you’ve rented for a weekend for a holiday.
[Next: I Got a Golden Ticket!]
There are problems with that system. When copyright can be owned by companies exploiting creators on a work-for-hire basis, you end up with companies like Disney who’ll pressure to keep Mickey Mouse in copyright by extending the period to an absurd degree. When it can be bought up by a company that exists solely to profit from such ownership, you end up with companies like the owners of “Run, Rabbit, Run” who’re basically exploiting the work of others to make easy money while making a reuse of the most negligible import all but impossible because they simply don’t give a fuck. When the automatic transfer to an estate leaves the copyright in the hands of individuals happy to ignore the original creator’s concerns, you end up with the family of Federico Garcia Lorca being too restrictive, exerting a deeply dubious editorial hand with poetry that — shock, horror — deals with homosexuality. Or you end up with the estate of Robert Zelazny not being restrictive enough, allowing Amber books to be written when Zelazny himself expressly stated he didn’t want this.
Personally, I think a shake-up to copyright legislation would be no bad thing. For a start, we could put the rights into the public domain upon the creator’s death unless expressly passed on in a will. A creator has the right, I’d say, to ensure that their loved ones enjoy the benefits of their legacy for a reasonable period, but they have to exercise that right. And actually, I’d bring in an “invalidation of contract” provision. Which is to say that any executor of an estate acting in contravention of the express wishes of the original creator is in breach of an implicit contract entered into in their acceptance of the copyright as part of their inheritance. In such cases, they have abrogated their responsibilities and thus the rights that go with them. You could require such a suit to be brought by a complainant with a relationship that validates a claim to succession as executor. You could define what legitimises such a claim in all sorts of interesting ways, if you want to. A lover or a long-term friend and fellow writer might well be more likely to treat a gay writer’s poetry with more respect than immediate relatives whose concern for his “good name” is really a concern for their own. Or you could push the envelope further and allow anyone to bring such a suit, on the principle that, if it’s upheld, the copyright enters the public domain. Personally, in the case of derivative works — unsanctioned sequels and prequels, spin-offs and cash-ins — where the production of these is deemed the definitive action which invalidates the contract, I’d even transfer the copyright for these to the public domain. Sorry, mate. You piss on the creator’s grave, you abrogate any creative rights associated with that action.
Work-for-hire and corporate ownership are gnarlier issues, perhaps. I don’t see any good reason why a copyright transferred by purchase should last longer than a copyright transferred by inheritance, and I’d love to see Disney shitting bricks if that period was set at 50 years, say. It would seem only fair to have rights then reverting to the creator, if they’re still alive, or to an executor explicitly nominated in the creator’s will. But in the case of purchase the contract is explicit, not implicit, and its terms are likely to be pretty absolute. Where the transfer of copyright takes place as a cash transaction, that’s pretty much going to render any claim of abrogated responsibilities unsustainable, because the buyer’s only responsibility is to follow the terms written into that contract. Other than that the creator gave up any say on what could be done with their work when they signed on the dotted line. It’s the sort of situation you get in the comics industry, in programming, or in the entertainment industry, of course, with cut-throat corporate bastards like Disney, and as unpalatable as it is to see creators exploited, you either have to disallow such contracts as inherently inequitous or, well, suck it up. The inequity can be and is addressed with the sort of legislation that gave the estates of Siegel and Shuster a form of co-ownership of Superman with DC Comics. It would be nice, I think, to see this right to terminate the assignment of copyright extended, in whatever modified form was necessary, to the creators of some of the more recent seminal works in the same industry — Alan Moore’s Watchmen, Neil Gaiman’s Sandman. But ultimately this seems to me to be about contracts rather than copyright itself, about what can be done, if anything, to redress exploitation when it’s the spirit of the law that’s been breached rather than the letter.
Whatever reconstruction of copyright legislation might be in order though, we are not dealing with the wildly unrealistic “problem” painted by Masnick. It is not, I’d say, even a remotely plausible scenario of how things might be if the copyright system ran amok!!! He’s saying that “no new creative works could be done without getting permission.” None. Not a single one. This would require that every single work that could be done, theoretically speaking, must be of such a nature that someone, somewhere could challenge it on grounds of copyright infringement. This is a statement about the essential nature of all works of art, that they are all necessarily contestable, because this is how art is made. What Masnick spectacularly fails to see is that even if this were true, even if copyright legislation became so wildly draconian, in the cloud-cuckoo-land of an imagined future, as to render all new creative work open to challenge, all those existing in-copyright works they were purportedly plagiarising would be themselves contestable. Any system sufficiently onerous that all new works were by nature transgressions would be sufficiently onerous that all old ones would be similarly in breach of its rules. If the “problem” was really a matter of some errant pretence “that there is a true original creator who deserves credit, money or control” and all those pretenders-to-originality had a legal system by which they could actually, realistically challenge any new work that could conceivably be produced, their own works would be equally susceptible to such challenges. All but the very oldest works still in copyright — which is to say, those works right on the verge of going out of copyright anyway — could be contested by the rights-holder of some earlier work.
Is it possible perhaps, just maybe, that this is why plagiarism is defined in very strict terms so as to only cover the sort of copying that actually fucking matters? Could it be that the legislation deliberately sets clear limits on what is open to challenge and what is not in order to reflect the reality — that the overwhelming majority of creative works, if they exploit the work of others at all, do so in a manner that is acceptable, but that a tiny minority of not-very-fucking-creative-at-all works are exploiting the work of others in a manner that is simply not acceptable? Could it be that the legislation is actually setting the definition of what constitutes an “original” work, as far as the law is concerned, in its identification of a few very specific features by which a work can be deemed criminally lacking in this “originality”? It doesn’t seem too wild and wacky an idea to me that even if all creative works could, theoretically speaking, be considered “derivative” in some shape or form, the purpose of copyright legislation is to allow for legal action in the subset of cases — and only in the subset of cases — where they are exploiting another’s labour without capital recompense.
Standing on the Shoulders of Giants
Maybe we’re all “standing on the shoulders of giants,” but maybe sometimes it’s simply wrong. Mostly it means jumping from one shoulder to another, this giant to the next, learning to see the world from their perspective until you can stand tall yourself and maybe, hopefully, one day be the giant whose shoulders a later generation stand on. Nothing wrong with that. Standing on the shoulders of a few particular giants for a good long while though, because you want to really understand their view, and doing so without giving them credit, (like if I didn’t acknowledge my debts to Aeschylus, Euripedes, Virgil and their translators,) that’s just bad form. It’s not illegal but it’s bad form. Standing on the shoulders of living giants like that, sneakily having them carry you somewhere without their permission, (like if I simply reused verbatim some modern translation of Inanna’s Descent,) that’s just plain wrong. At very short distances, if you have a very good reason for it, and due credit is given, it’s fair enough, (which is why it’s called “fair use” or “fair dealing”,) but otherwise you need to ask, and that giant is quite entitled to refuse outright or set conditions and require recompense. Standing on the shoulders of dead giants and being carried like that when the wake is barely over and that giant is in the hearse of culture-at-large on their last great journey to the graveyard? (Like if I reused Gardner’s Gilgamesh verbatim in the next book?) Well, it’s possible that giant wouldn’t object but it’s just as possible they’d rule it out of the question, or would want their next-of-kin to have the final say, the power to deal or veto. And if you really respect that giant then you should respect their wishes.
The idea that all of these permutations of “standing on the shoulders of giants” are rendered acceptable or unacceptable in law in the name of progess, the idea that it’s all some sort of strategy for encouraging individual creators to continue striving to stand tall as giants, an attempt to prevent them from just sitting down and letting their legs atrophy because there’s no guarantee of a nod, a tip or even a polite request for consent when others decide they want to stand on your shoulders — this is wrong both practically and in principle. The creators are going to carry on striving to be giants regardless. They don’t need encouragement cause they get it in the rush of suddenly seeing the world from a new perspective, whether it’s because they’re standing on the shoulders of giants or because they’ve learned how to stand just that little bit taller themselves. They will strive for years — for decades — with no reward whatsoever and no expectation of reward because there is never any guarantee that they will become that giant or, even if they do, that they will be recognised as such. They’ll strive against the skepticism of those who think you’re somehow born a giant and who, looking at this would-be creator, see only a piddling little hobbyist, born to be the height they are. They’ll strive against scorn and condescension, disapproval and doubt, their own as much as anyone else’s, continuing even as they grow taller and taller because the change is so gradual — and they only really stand tall when they’re alone anyway, in those unseen paintings or unread manuscripts — that it may well be that nobody notices. They’ll strive against the problem of finding the time and energy to strive when you have to earn a living. They’ll strive because they’re addicted to the striving, because the striving itself is really sort of the point, this insatiable drive to figurate. It’s not really that they want to be a giant. They just want to stand tall so they can see a little better. It’s the difference between wanting to be an artist, to have made art, and wanting to make it. At the end of the day, the encouragements and discouragements will have an effect but the incentive of copyright is not really of much import to the majority of creators who’re never going to be successful at all, never mind successful enough to be plagiarised. That’s what makes the whole “progress” idea wrong on a practical level. But simply on principle, in terms of ethics, it’s just completely bogus. Because they’re striving towards this point where maybe one day the rest of us will stand on their shoulders and be carried by them and have a hell of a time, and that’s a form of labour that we owe them for.
The way to think of copyright is not “intellectual property” but “intellectual service”. A work of art is not just a product; it’s a two-fold process of toil and transfer. All those copyrighted structurings of sounds and images — it’s not that the creator owns some abstract information-pattern, some insubstantial Platonic form floating out there in the morphological aether until the creator came along, pulled it out of thin air, and by making it manifest in the medium of their choice established their ownership of the very order encoded in this specific articulation, their ownership of every particularity of that articulation, from the low-level structures of musical or linguistic phrases to the higher-level structures of characters described in literature or represented in cinema. You can’t “own” an idea, but the distinction between idea and expression in copyright does not really mean that you can “own” an expression either. The legislation might word it in such terms but it’s like legislating ownership of numbers, like saying that whoever comes up with the most precise calculation of pi owns that particular expression of it. It’s not really meaningful to say that I own this articulation that you happen to be reading right now when it is — if it constitutes a “thing” at all — in some abstract sense, as much in your head as you read it as it is in mine as I write, as much as it is on the screen of my laptop in a document still incomplete, as much as it is on the screen of your computer in an internet browser showing a blog entry finished and published for anyone to read. Ownership is a poor concept when it comes to articulations of ideas.
But this is because articulations are processes rather than just products. Experiencing a work of art conveys that articulation into your imagination, or through it at least, idea and expression in one big package. The entirety of the articulation carries out a procedure — quite different, in all likelihood, for each reader or viewer or listener. It performs a function of figuration, each structuring of sound or image being parsed and recombined — sparking off imagination and ideation at every turn, at every level — until the process is completed, as on the last page of a book, or abandoned, as when a viewer turns away from a painting. It’s this experience that we value, not the work as a mere product, an inactive object. The object itself — book, print, disc or file — is just the means by which the transfer is made possible, and buying, borrowing or stealing a copy of it from whatever source is of zero import if no subsequent transfer takes place. Whether the copy is legitimate or not, it simply doesn’t matter if it is never used. It’s the transfer you’re paying for, if you’re paying at all, the service provided by the creator in making it available to you. You’re also paying for the toil required to set that service up in the first place, because the provision of that transfer is not without effort. That service actually working in a way that’s of value is dependent on the hard graft of the brickie, the skilled craft of the joiner, the precise design of the architect and quite possibly the apparently crack-pot vision of a mad scientist who’s used himself as the test subject in ten years of experiments with extreme living conditions in an obsessive attempt to understand the importance of houses in people’s lives — how they succeed, how they fail, how they might go horribly wrong in a Demon Seed sort of way and completely fuck with their inhabitants. That’s the sort of toil that may well have gone into this house you’ve rented for a weekend for a holiday.
[Next: I Got a Golden Ticket!]
posted by Hal Duncan | 3:31 pm
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