Some Hard Facts on Copyright

I’ve referred to Nina Paley quite a bit in recent columns.  Her song “Copying is Not Theft” and her Mimi and Eunice cartoons skewer the moral pretensions of the Copyright Nazis more effectively than just about anything I’ve seen.

In a more serious vein, I just ran onto her interview with Art Brodsky from last year (“We Are Creators Too, Part I,” Public Knowledge, Sept. 22, 2009),  in which she discussed the effect of copyright on her own work.

One of my recurring themes in this column is the effect of state-enforced artificial scarcity, entry barriers, mandates, etc., in drastically raising the capital outlays and overhead costs of small-scale production.  In so doing, government policy protects the corporate big boys and incumbent players by nullifying what would otherwise be overwhelming advantages of efficiency and agility on the part of the microenterprises and the alternative economy.

Paley’s experience with her film “Sita Sings the Blues” is a classic example of the phenomenon.  The fact that musical recordings of Annette Hanshaw from the 1920s are still under copyright, thanks to endless extensions by Congress, meant that to make what would otherwise be a low-budget indie film she had to have an entire team of lawyers just to research copyright ownership and secure the necessary permissions.  And because the copyright owners have to maintain full-time, high-priced lawyers just to handle all the requests for permissions, Paley had to have her people talk to their people, while paying through the nose for the latter’s time.  And that doesn’t even count the cost of licensing itself.

“It’s like you’re not supposed to make a film unless you have millions of dollars to start with, like an enormous part of your budget is supposed to be just legal, which is a real disincentive for independent artists to make film. And we’re in this freaky time where suddenly the technology has become cheap enough and powerful enough so that independents, just ordinary people like me, can make films, but we’re not supposed to. Like there’s this whole legal thing that is supposed to keep us out, and so the technology is beginning to let us in, but the legal system is not. …  When you have a system where only the extremely wealthy can create art or create media, then you shut out this huge number … of people that now have access to the technology to make that stuff. ”

Thank you!

Meanwhile, the Copyright Nazis are troubled by the very existence of things like Creative Commons, or the fact that traditional culture is still in the public domain.  Creative Commons has to be stamped out because of the threat it poses to the proprietary culture model, and (as Paley pointed out) the entire public domain has to be privately appropriated and put under copyright lockdown.  People like Mark Helprin are squealing that Creative Commons is a commie threat, and the content industries are actually lobbying the WTO to sanction governments for adopting open-source software.

Paley noted that much of our great literature — Shakespeare’s plays, for example — consists of mashups of the popular culture of its time.  Thanks to copyright, only people who cut deals with giant corporations with a large legal staff can risk commenting on contemporary culture.

Paley made some other interesting points.  She raised the question of whether posthumous copyright extensions violate an implicit contract with the artist:

‘It’s quite likely that a lot of the people that created these works in the ’20s and onwards, when they were signing over the rights … they knew that the terms were only 28 years and so that could have been a comfort to them. Like, ‘Okay, I have to, you know, sign this over to a corporation, but it’s only gonna be 28 years and after 28 years, people can sing my song.’ …  So it’s entirely possible that had artists known that they wouldn’t have done this or … there’s no way to get the consent of the artists from history to say, ‘Is it okay if we lock up your work forever and ever?'”

I was especially pleased to see her eviscerate the “what about the poor starving artists who won’t get paid for their work” hand-wringers.  Paley finds — and this is true of most of her artist friends as well — that almost none of her income comes from royalties, most of it comes from stuff like commissions and other work for hire.  The main gobbler of royalties is the distribution companies the rights are signed over to.

So aside from the creators of a few blockbusters, artists are mostly working for commission or performances right now exactly the way they would in a free market, without copyright — only with copyright limiting their freedom to make money off their own work in ways not approved by the content companies.

Free Markets & Capitalism?
Markets Not Capitalism
Organization Theory
Conscience of an Anarchist