Wednesday, September 21, 2011

Do Fans Have Rights In Films?

Who really owns a film? The legal rights are clear: the producer of the film owns the legal rights and can do anything they want with it. They can show it, sell it, change it, colorize it, or even destroy it. . . legally. But do the fans have rights in it too?

This issue has come to the forefront because of the Star Wars saga. Star Wars is an iconic film (three actually) and really changed the world in many ways -- but suffice it for our purposes to say that millions of people fell in love with Star Wars and it has great cultural influence. So George Lucas should be congratulated and heartily thanked.

But in 1997, George did an evil thing. He released revised versions of these films which were an atrocity. I won’t go into all the details here or the fact I think Lucas did this with the intent of upsetting fans. What matters is that he ruined the original films. But who cares? He can make as many versions as he wants and we can ignore all those versions and stick with the originals, right? Actually no. At the same time Lucas released his new versions, he declared that he would never let the originals be seen again. And to this day, he has done his best to make that happen.

So does he have the right to do this? I’m a firm believer in property rights, but I don’t think he does. Here’s why.

Lucas created an iconic film. This is as much a part of the history of film and a pillar of our culture as Casablanca or Citizen Kane. To allow him to suppress the original version, the version that became iconic, to keep it from being seen and to replace it with his idiotic, ADD-riddled second version would destroy that part of film history and make that part of our culture inaccessible. It would be like letting someone purchase all the rights to the Mona Lisa, and then declaring that the image could only be used if Mona was first given a clown nose. We would never let that happen to a cultural treasure like the Mona Lisa, so why should we let it happen to an equally influential film?

Even our copyright law acknowledges the public's interest because it allows creators to claim the rights for only so long before they enter the public domain. Though, thanks to our idiot Congress, we no longer can rely on copyright law to help us in this. Copyrights were originally 14 years. This was expanded to 28 years in 1790. Then it became 56 years. Today, they run for the life of the creator plus 70 years (for anything created after 1978). Does that seem right? It doesn't to me. That means a thirty year old filmmaker who lives to be 100 could effective tie up their film for 140 years. . . until 2151 if they produced the film today.

I certainly respect the filmmaker's right to benefit from and control their own creation. And that typically includes the right to use or not use the property as the owner sees fit. But I also abhor waste. And I see it as wasteful to let someone suppress art.

I tend to see art as something different from regular property as it is societal in nature, i.e. it derives its value from being observed by society. When an artist offers that to the public it becomes part of the culture and I think they should not be allowed to take it away again. I'm not saying we shouldn't let them exploit it and profit from it, but I do have a problem with them simply refusing to release it just as I would have problems with a drug company refusing to release a vaccine. It is bad for society to let ideas be suppressed.

But this raises some obvious questions. For example, what becomes a cultural icon and what doesn’t? Or should we skip that question and just disallow the suppression of any film or any book by its owner? And if we don’t allow such suppression, what obligations would we place on the owner to make it accessible to the public? If George Lucas refuses to put it on BluRay, can we force him to do that? Can we say that others have that right if he won’t?

That's actually what I would suggest. It really doesn’t give me any heartburn to shorten copyrights again to a reasonable period, like 40 years, and require that those copyrights be used or sacrificed, i.e. use it or lose it. That way, George would be free to use the films as he saw fit, with the one exception that if he tried to bury the originals, then someone else could come along and release them.



Ed said...

Andrew, You might not believe this, but the verification word if "tatoine" -- how close is that to Tatooine?

On the article, I have no dog in the "Star Wars" fight, but it does seem kind of wrong to let people simply hide something for their whole lives and then seventy years.

AndrewPrice said...

Ed, I have problems with that too. What's the justification for giving 70 years after death? Even if we're talking about preventing a company (like Disney) from immediately losing it's protection, you could still shorten it considerably, and maybe put in an "either/or X years" just in case the guy dies right away.

Don't get me wrong, I want to be an author myself, so I get the need for copyrights. But it strikes me as wrong to let people simply bury their work.

LawHawkRFD said...

Andrew: If they keep this up, the next thing you know the copyright law will read just like the rule against perpetuities: No interest is good unless it must vest within 21 years plus some life in being at the timme of the creation of the instrument (here, the Lucas-owned movie and script rights). It would also be equally incomprehensible.

I like your idea of certain things becoming "public domain" at a certain point so that seminal works don't get destroyed or suppressed simply because the author had a change of heart. As for the exclusive possessory interest, your forty years are long enough.

T-Rav said...

Andrew, first off, "Citizen Cain"? Really? I've never even seen that movie, and that jumped out at me. I guess I know now who you're secretly supporting for President ;-)

Sad to say, I have never seen the original versions of the Star Wars movies. I was too young and hadn't really paid attention to the trilogy yet when they got pulled. So for all I'd know, all that crap might be part of the actual movies--Han not shooting first. Stupid stuff constantly going in front of the screen. That weird '80s nightclub in Return of the Jedi. So many Ewoks. Jar Jar shouting "Wesa free!" at the end...@#$%&(!&#?)#!!!

AndrewPrice said...

Lawhawk, Frankly, I can't image that 40 years is not enough. In fact, the very idea behind patents and copyrights is to let the person exploit their ideas for money but then to let the public use them at some point. Forty years should be more than enough. And letting these things run forever keeps them out of the public domain way too long -- especially with the army of lawyers now who crack down on anything they consider infringement.

rlaWTX said...

Jar Jar is NOT in the original trilogy.

are the versions they keep playing on cable the original ones?

AndrewPrice said...

T-Rav, Good catch! That's what happens when you read various political headlines before you write an article. LOL!

The original Star Wars was much better. It was a true film with a really cool atmosphere, not a videogame aimed at five year olds with ADD. None of that annoying stuff was in it.

And yeah, I hate Mr. Binks. I know Bev likes him, but I just want to strangle that digital democrat.

Just be glad that colorization failed or you wouldn't have seen any black and white films either, because Turner was ready to paint them all up. Jerk.

LawHawkRFD said...

Andrew: I'm with T-Rav. Did you just endorse Citizen Herman Cain without telling me in advance? LOL

AndrewPrice said...

rlaWTX, No, Lucas won't let anyone broadcast the original versions. So when you see it on TV it will be the "special edition."

The last chance you had to see the originals required you to buy the special editions about a decade back. Lucas included really bad copies of the originals (transferred from laserdisc) as an extra in the package to boost sales. Since then, he won't let them be sold or shown.

AndrewPrice said...

Lawhawk, Um... yeah! ;-)

AndrewPrice said...

T-Rav and rlaWTX, Let me clarify... JarJar is no where in the originals. He's in the "prequels." Lucas should be shot to the moon for making those. Grumble grumble grumble.

ScottDS said...

This will be a somewhat random assemblage of comments since, believe it or not, I never really put pen to paper with my thoughts on this situation.

--I think I speak for most when I say I'm fine with Lucas making whatever changes he wants so long as the originals are still presented, and in top quality... not the non-anamorphic recycled laserdisc transfers that he included on the last DVD release as an "extra."

--I think the things that bug me the most about the changes (especially the latest round) are: a.) nearly every change creates another problem later on (he adds a CGI rock in one shot but not in the next shot, etc.)... b.) there are still errors that need fixing (garbage mattes, color inconsistencies, etc.)... c.) lack of QC.

--For the most part, filmmakers don't own their films but I'm pretty sure the studios are required by the DGA to consult with the directors before exploiting the films for whatever reason. (Example: if Paramount wanted to do something with Star Trek II, they'd probably consult director Nicholas Meyer first.)... On the other hand, Lucas owns everything Star Wars. 20th Century Fox defers to him and they won't do anything to jeopardize their relationship with him. I'm sure more than one person in the Fox Home Entertainment division would like to see the originals released but Lucas owns the copyright, the print, etc.

--Lucas has said that he doesn't want the originals released. However, in the last few years, the company line has been, "It would be too expensive." Lucas is a multi-billionaire! And a man named Robert Harris who is one of the top film restoration gurus in the world (he restored The Godfather, Lawrence of Arabia, and more) has said that it's definitely possible and could be done in a cost-effective manner.

--Bill Hunt of The Digital Bits (one of the first DVD - and now Blu-ray - websites) thinks that the originals will be released one day. You know why? Because Lucas is gonna run out of incentives. For the Blu-Ray set, the big incentive is the 40+ minutes of deleted scenes. And if the planned 3-D re-release isn't as successful as they hope, Lucas is gonna need a new revenue generator.

T-Rav said...

Andrew, I don't blame the people who flipped their lids recently over the new Blu-Ray releases. As if that God-awful "NOOOOOOO!!!" from Vader in "Revenge of the Sith" wasn't bad enough, they now have it--twice--in ROTJ, when he's making the decision to destroy the Emperor and save his son. The critics were right: that scene's way more effective without any dialogue from Vader, and having that line, of all things, screws it up. (Not to mention, if Palpatine's so clever, wouldn't he realize what was about to go down when he heard it and respond accordingly?)

What really put me over the top was the official press release from LucasFilm, which consisted of this line: "Yes on NOOOO!" That makes it sound like the company's bowing to popular demand or something, and they must know how much the fans hate that line. It's like Lucas is giving us a deliberate middle finger, but wants us to believe he's hugging us. That just drives me up the wall.

AndrewPrice said...

Scott, As usual, you've said a mouthful. Give me a few minutes to respond. :)

AndrewPrice said...

T-Rav, I've had numerous discussions with people and I honestly have come to believe that Lucas is essentially trying to offend the fans. So many of the changes he's made make no sense at all. They don't fit the story, they don't fit the feel of the film, and they are needless. I think there are only two possibilities there -- he's a total idiot or he's doing it intentionally to upset people. I don't believe he's a total idiot.

For a variety of reasons, I think he's trying to anger people -- everything from things I've seen in interviews to how it makes no sense that a man who clearly loves every last dollar he can get won't release the originals (which would set sales records) to the types of changes he makes (like the insertion of offensive racial imagery even after people complained) to introducing more mistakes into the films, etc. I think none of this is an accident.

I think he's upset that the rest of his films were poorly received and he's playing the role of the spoiled kid who owns the ball.... "I'm taking my ball and I'm going home."

By the way, there's an interesting interview with the director of The People vs. George Lucas over at Red Letter Media. I recommend it. (LINK).

Retro Hound said...

I'm a bitter clinger. I still have my Star Wars VHS from about 1993. I should burn it to DVD for myself.

AndrewPrice said...


1. I agree. I am not bothered by him making any changes he wants, so long as he allows the originals to remain available to the public. And I agree that I would like to see them in something better than the poor transfers we have of them. I don't think we can force that on him, but like I say in the article -- I would be happy to let others do it if he won't.

2. I've said before (and just said again to T-Rav) that I think the errors are intentional. I don't believe that he can hire a team of people and spend a million dollars to fix 20 seconds of film and end up causing errors. That strikes me as impossible, unless he's either hired the biggest fools on the planet or he doesn't care. The fact people have pointed these things out to him and then he doesn't fix them in later versions confirms that to me -- it's intentional.

3. On the ownership point, let me add something to consider. One of the places I've practiced had some real problems because all the local land ended up being put into trusts for kids. When the kids then had a falling out, that tied the land up -- in some cases for generations. That's another problem to consider here. It's very possible that you will end up with multiple people owning a film or whatever and then one of the owners acts out of spite to prevent the use of the property. That's not the case with Star Wars, but it could easily be (suppose his wife got half in the divorce). Society needs a way to keep these things available to the public when the owners sit on them.

4. Lucas is lying. First, releasing the originals would be a record breaker in terms of sales. So whatever it cost, he would easily make that back. Secondly, I've heard the same thing that it could be done fairly cheaply. What he's doing is trying to come up with a reason other than "I don't like you people... f*ck off."

5. It's possible Lucas will change his mind, but I have my doubts. When people decide to act in a personal/spiteful manner, they don't care about the economics. As I was saying above about the land, when those families starting fighting, they didn't care that there where huge buyers ready to spend a fortune to get the land. . . they wanted to hurt the other family members and that's all they wanted.

AndrewPrice said...

Retro Hound, LOL! A bitter clinger. Now that would have been funny if Obama had said "clinging to their guns and their copies of the original Star Wars"!

I have the VHS copies around somewhere, but they were pan and scan. I have laserdisc copies, but no player anymore. And I have the dvd transfers. They aren't great, but they are all I have... so I too am a bitter clinger. :)

T-Rav said...

Darn it, Andrew! It's getting close to dinnertime and now you've got me thinking of pizza rolls! (sigh) I've been watching those reviews way too much...

T-Rav said...

Okay, so I am no longer apologizing if I get wordy in answering the film debate questions. Really, guys? Really? ;-)

AndrewPrice said...

T-Rav, sigh. Yeah, we're Star Wars geeks. :(

Hmmm... pizza.

I know what you mean about watching those reviews too much. They're really, really entertaining. This isn't a review though. They've been doing more "straight up" reviews of recent releases, and this is the same two guys doing an interview with the director of the film. (By the way, that's actually the guy who does Plinkett in the reviews on the left).

thundercatkp said...


Good question and one i never thought of. while pondering this over in my mind. I wondered if someone sued Lucas for fan rights, would they win? I don't know...would they?

I think Lucas was trying to reach a different generation. Maybe to make more money on future movies, I don't know. But didn't count on the fallout with the older folks that practical worshiped him as God of Sci-fi. Just a thought.

I'm not sure why he would never again allow the older ones to be seen use that's a publicity stunt. Which would be a good one unless it backs fires.

I can see it now ~~Just days after Lucas' death the holder of the Original Star Wars will have 24/7 showing until Lucas' ashes have been launched into space~~~

...back to read the comments now...


AndrewPrice said...

Karen, If it was a publicity stunt, then he vastly underestimated the outrage he would cause. People are furious.

This is an interesting issue because on the one hand, they created it and they should have the right to control it. But on the other hand, they know what they're dealing with in terms of fans when they get into the business and it strikes me as unreasonable to let them deny the fans access to the original work.

thundercatkp said...


I didn't even know that the original version were no longer available until I read this. Following but verify theory..I checked out several online stores and netflixs. I'm surprised still. Has Lucas recently joint Scientology or something...when did he decide that...I'll have to go back and re read the article again.

He's an idiot for doing that unless he has a reason no one knows about. Maybe the original version wasn't really his and someone called him out on it....

AndrewPrice said...

Karen, He declared in 1997 that he would not be releasing the originals again. They even released a VHS version around that time which has that printed on it.

Tennessee Jed said...

not much for me to say on this one. Public domain and patent expiration come to mind. Seems tricky, legally. Generally speaking, this whole financial model of gradually trickling out the technology so true fans keep paying over and over for incremental (and often marginal) improvements in sound and picture quality. I guess it beats actually having to come out with really good new material.

AndrewPrice said...

Jed, I understand that's where studios make most of their money -- in re-releasing these "properties" because a huge percentage of the fans will switch over each time. I don't mind them making money on that. I just don't like anyone suppressing the films.

thundercatkp said...

Yeah I re read the article. Still hard to believe that. Thanks

AndrewPrice said...

Neither can the fans. You're welcome.

ScottDS said...

Andrew - that VHS set was released in 1995 and, yes indeed, there's a message on the back indicating it would be the last time the originals would be released. I still remember at the tender age of 12 seeing the widescreen boxset of those tapes at Best Buy and to this day, I regret not buying them.

If you look, you can find HD versions of the originals available to download on ye olde torrents. I'm not sure how but several fans have managed to produce good-looking copies.

A fan named "Adywan" has actually produced his own Special Edition, deleting some of Lucas' changes, adding his own (some are better than others), and even fixing dozens of continuity glitches. Do a search for "Star Wars Revisited" one day and you'll see what one fan can do in his spare time on a computer.

It should be noted that Lucas' buddy Steven Spielberg recently admitted that the revised E.T. (sans guns) was a mistake and the Blu-Ray will include the original version.

AndrewPrice said...

Scott, Thanks, I'll look for that!

Speaking of fan edits, another issue with Lucas came up after he released the Phantom Menace. Lucas was telling everyone in interviews that he was all in favor of letting fans mess around with the films. Then someone did a very good remake of Phantom Menace called Phantom Menace 2.0. Soon people were passing this thing around on VHS. Suddenly, Lucas sent in the lawyers. That was really hypocritical and showed the heavy-handed approach he was beginning to take with people.

I read that about Spielberg. The other thing Spielberg did which was smart was when he released his revised version of E.T. he also released the original along with it. So he never tried to suppress the original, he just made a new version... a version no one liked, but still just a new version. So I can't lump him in with Lucas on this count.

T-Rav said...

I watched the RLM video at the link. Very interesting, not least because Plinkett's creator looks oddly like a sanitation worker. Eh, maybe it's work-release or something. :-)

Speaking of Lucas shutting down fan involvement, did anyone hear a couple of months ago when someone in New York was going to show a marathon of all six movies and LucasFilm swept in and threatened legal action? Yeah, what a bunch of vultures.

AndrewPrice said...

T-Rav, They do a pretty good job with their Half in the Bag reviews too. Some are pretty funny, but more importantly, they tend to be right on point.

I thought the interview was interesting as well and I'd like to see the film.

I heard that about New York and it doesn't surprise me at all. Lucas has apparently been sending in the lawyers for all kinds of things in the past few years.

tryanmax said...

Man, I've been pissed off at Lucas since The Ewok Adventure, and that $#!+ happened when I was only 4 years old! I can't get much more upset with George anymore.

I'll just let him hang himself with his own words:

AndrewPrice said...

tryanmax, Lucas hasn't been making many friends for a long time now! And if he managed to anger you at age 4, that's pretty bad on his part! LOL!

Thanks for the link: LINK. I remember this speech. This was when Lucas was attacking Turner for colorizing films.... "destroying our cultural heritage."

tryanmax said...

What can I say? I was a perceptive youngster. That, and my mother destroyed my sense of "cute" by introducing me to Pink Floyd's The Wall at an early age.

AndrewPrice said...

Yeah, that would do it! I didn't discover Floyd until high school. I'm not sure what I would have made of it when I was younger?

Outlaw13 said...

I don't have a lot of time this AM, so I'll throw this bomb down and come back later.

I find it interesting that so many are willing to say that the work of others should be theirs to do with what they wish or at least be able to control. After a reasonable time of course.

This is all because someone shat over a cherished childhood memory.

The fact remains it isn't ours to do with what we wish. You can and I enocourage you to write letters, don't purchace any Star Wars parafanalia of any sort...if people didn't purchase it he wouldn't make stop already you dupes.

I enjoyed the original Star Wars as well, but it isn't ours...the memories are ours, our fandom is ours to give and for the most part we just rolled over and gave it away like the slut down the street. Why would Lucas bend to your will when you just keep giving it away? That's the only weapon people really have, and should have use it wisely.

Ponderosa said...

At this point I'm going with "total idiot" or at least one trick pony. Great as it was still only one trick.

Kasden co-wrote Raiders, Star Wars V and VI.

Left on his own we got Star Wars I, II & III, etc.

Thinking you should reconsider the idiot argument...

tryanmax said...

Getting back to the original question posed by Andrew, and in response to Outlaw13, I don't think there is anything untoward about wanting to go back to a more reasonable lifespan for copyrights. Forty, even 50 years seems about right to me.

I like the idea of a fixed timeframe not based on the creator's lifespan. I'd hate to think that if I wrote the novel of the century and died the next day, my heirs couldn't benefit from that. The timeframe needs to be reasonable but relatively short. Forty to 50 years is roughly half a human lifespan--ample time for the creator or inheritor to reap the rewards of the labor.

As to fan rights, I can't reasonably conclude that such a thing exists. However, since the copyright monopoly is a protection afforded by the state, there is no reason that the privilege cannot carry certain caveats.

Just as a landowner does not have the right to do absolutely anything with his property (zoning laws, structural codes, eminent domain, etc.), reasonable limitations on copyright could be imposed that would require preservation of the original copyrighted material. Of course, there is a certain degree of apples and oranges to this comparison since copyright is not properly understood as a property right, but rather a limitation on property rights.

tryanmax said...

Unfortunately, much of this discussion may be academic, as any of our suggestions here would require the United States to withdraw from the Berne Convention.

AndrewPrice said...

Outlaw, I definitely get your point and as a lover of private property and property rights, I am largely sympathetic to it.

However, I have problems with granting someone a permanent monopoly to an idea.

First, ideas, unlike real property, can be shared by everyone without diminishing or destroying the idea. In other words, while we can't share your land without taking away your enjoyment of it, we can all share your idea without diminishing your enjoyment of it. So in that sense, there is a distinction here.

Moreover, this is only considered a property right because we create the property by operation of law through the copyright. The reason we grant a copyright in the first place is because we want to encourage people to share their ideas -- otherwise they need to hide them to exploit them (like Coke does with its formula).

By granting a copyright, we grant the first person to come forward with the idea a monopoly that lets them profit from the idea. But that artificially limits the idea in the sense that it keeps others from using it. In the case of a film, this may not be significant, but think about it in the case of a vaccine or some computer code that would make the net run 100 times faster. By giving these people the monopoly, we prevent everyone else from using those ideas even if they later come up with the idea independently. Thus, we are restricting human knowledge.

Moreover, keep in mind, the copyright is broader than just the idea itself. Look at music, for example. Lots of bands lose the rights to their songs when another band claims part of the song is stolen. That means suddenly a collection of chords that may barely sound similar to the average listener belongs to a band. If they choose to prevent anyone from using it, suddenly a simple collection of chords is lost to humanity. The same is true in films. If I made something that seems too close to Star Wars or too close to the characters, Lucas can swoop in and stop me. And this can go pretty far. Christian Louboutin is trying right now to copyright red soles on shoes (and may succeed).

My problem with simply calling this a property right and leaving it at that is (1) it's not property in the traditional sense of being limited in the number of people who can use it without wiping out your enjoyment of it, (2) the copyright is much broader than just the idea itself -- it encompasses a wide swath of similar knowledge, and (3) it retards humanity's development to let people section off ideas and then squirrel them away. Also, it’s only a property right in the first place because society has decided to make it a property right and thus we should also have the right to place limits on that. Thus, I have no problems at all with also putting a requirement on the copyright that they exploit the idea or step aside and with putting a time limit on their ownership of the idea.

AndrewPrice said...

Outlaw, Let me also add that if these things didn't eventually end up in the public domain, then we would lose an awful lot of knowledge. What do we do about the works of someone like Dickens 200 years after his death? How long does his estate last? As a practical matter, a lot of knowledge would be lost if we had to depend on people to take care of their affairs in such a way that their work could continue to be sold in perpetuity.

AndrewPrice said...

Tryanmax, Well said. I second your comments.

On the lifespan idea, I agree that it should be a number of years rather than associated with a lifespan because the rights shouldn't depend on what stage of life the author/creator was in or how long they happened to live.

P.S. Unfortunately, most of what we do with blogging is just academic because we don't have the power to change laws. But it's still interesting to discuss and you never know who you might influence!

AndrewPrice said...

Ponderosa, LOL! Ok, I'll rethink the possibility that he's just an idiot. You're right though, his track record is pretty horrible. I understand too that Star Wars was a disaster until it was fixed in editing.

rlaWTX said...

totally OT tech question:
Blu-Ray & DVD -
can you play Blu-Ray discs on regular DVD players? vise versa?

(please- answers need to be simple, not too tech-geek)
Thank you!!!

AndrewPrice said...

rlaWTX, Simple answer. . .

1. No, you can't play BluRay on a regular DVD player.

2. BUT you should be able to play regular DVDs on a BluRay player.

rlaWTX said...

Andrew, thank you! That's what I had gleaned from a couple of technically-oriented articles, but wanted to be sure... appreciate the info!!!!

AndrewPrice said...

You're welcome rlaWTX! :)

Outlaw13 said...

I don't necessarily have an issue with something reverting to the public domain after a period of time. But the idea that George Lucas owes anybody anything simply because you happened to enjoy something he thought up and filmed in 1975 is ludicrous.

I'm not saying that you shouldn't be upset or not write angry letters, from protests, write blogs do whatever you want, but until that film reverts to the public domain it's George Lucas' and 20th Centery Fox's film to screw with as they wish. If you don't like it quit buying his stuff. I guarentee you that if people weren't continuing to buy Star Wars stuff he wouldn't be doing this.

I wonder what he's doing with all this money? Get the FBI on that.

AndrewPrice said...

Outlaw, We may be talking at cross purposes here because what we're talking about is when and/or under what conditions it should go to the public domain.

My position is simply that (1) it should be a shorter fixed period (like 40 years) before it goes to the public domain (rather than life plus 70 years like right now) or (2) it should go to the public domain if the holder of the copyright refuses to make it available to the public.

tryanmax said...

To your last comment, Andrew, I would also add that, since it is the government which grants the copyright monopoly, and since we are the government, there in lies the case that George Lucas does in fact owe something to the public for that privilege.

What exactly he owes is a matter for discussion. But since the copyright monopoly does not necessarily arise from natural law, it is a right that can be legitimately conditioned.

tryanmax said...

Andrew, you're an attorney. How'd I do?

AndrewPrice said...

tryanmax, I think that's correct. When a monopoly is granted, it always comes with conditions because that is the price of granting the monopoly -- the alternative is either to grant an unlimited right or to not grant the property right and to make the person protect it themselves.

Our society has always choosen the middle path of granting the monopoly but with limitations/conditions. I think that makes sense and is a fair compromise. In exchange for protecting the idea from theft, the price is that the public gets to use the idea at some point.

(I'm not aware of any property right which is unlimited in our law. Even real property rights are subject to limits.)

That said, this does create the danger of being a slippery slope as this type of justification has no limits in terms of the types of conditions you could apply. That doesn't make it an invalid justification, it just means we need to be careful about how far we let people take that kind of argument.

Personally, I prefer to keep those conditions as small as possible, but I would say (1) a limited time period and (2) not "wasting" the property are two conditions that should be imposed and which have support in our legal history -- i.e., court's have often interfered with property rights to prevent waste. That, for example, is why the law won't enforce unlimited covenants not to compete (it's wasteful of people's skills) or provisions of wills that require the destruction of property (e.g. "bury me with my car."), because courts won't sanction the wasting of assets.

I think a requirement that the copyright holder exploit the property or lose the copyright fits within that history and is an acceptable limit.

In effect, Lucas would have the right to do anything he wanted with the films for the length of the copyright period, except refuse to let them be seen by the public. If he does that, then the copyright would give way and allow others to exploit the property which he has refused to use himself (probably with a royalty).

P.S. yeah... a lawyer. It shows, huh? :(

Outlaw13 said...

You maybe right about cross purposes.

I just don't get why people think they have a "right" to someone elses work after a specific period of time be it 75 years or 10. Yeah, the law says that I do, but that doesn't make it "right".

Those are his characters, his story, his movie...if you don't like what he did fine...don't watch it, get over it, move on. :)

AndrewPrice said...

Outlaw, I get your point and in principle I share your concerns. I don't like the idea of feeling anyone has rights in anyone else's property. I don't even think the government should have the power of eminent domain.

But I see ideas as different.

For one thing, it doesn't hurt anyone's enjoyment of the property if someone else uses it. Maybe your ability to profit from it suffers, but how can someone complain about that if they weren't even trying to profit from it?

Secondly, our civilization is built upon the intellectual work of millions of humans before us. If we let people start carving up knowledge and withhold it from the public indefinitely, our intellectual progress will stall. Imagine if the inventor of a key internet code suddenly decided "nope, I don't like what people have done with it" and yanked the right to use that.

Third, this is a bargain/an exchange, and people know what they're getting into before they start. If you want the protections afforded by copyrights and patents, then you agree that there are limits on those rights. If you don't want those protections, then you can still do your own thing, but you run the risk of being ripped off. Coke takes that chance.

Fourth, the protections are too broad to let people have unlimited copyrights. Lucas doesn't just hold the rights to Star Wars, he holds the rights to everything associated with it and anything that is arguably similar to it or its elements. If we're going to grant that kind of protection, then there need to be limits or suddenly whole chunks of things start to vanish.

What do we do if I suddenly write a 100 page lousy plot-less novel that uses a million superheros with all kinds of powers, names and descriptions. Should we really let me corner the entire superhero world based on that?

That's why I think the public has rights here. We can definitely disagree in good faith, and I do understand your position and feel a lot of sympathy for it, but that's how I see this issue. :)

tryanmax said...

Well, Andrew, it's on your profile.

Outlaw13, I think your hang-up is due to the the misconception that copyright is a protection of property rights when, in reality, it is a restriction of property rights.

Here is a good discussion of the concept.

I would add to this description that there is no natural basis for copyright law. It is a societal construction to exploit the optimal balance between what occurs naturally--ideas disseminate without regard to their creator reducing incentive to share ideas--and what would occur if full property rights were granted to ideas--we'd still be pounding rocks in the stone age because every idea would die with its creator.

tryanmax said...

Andrew, in response to your slippery slope comment, I think that any middle ground position is subject to the threat of a slippery slope. If you think of taking the middle ground as walking the ridge, what do you have on either side? Yet walking the ridge is the most sensible approach because it affords the widest vantage point and the levelest path.

Of course, on matters of philosophy, the hard part is finding the ridge since, in some sense, we are all wandering in the dark

AndrewPrice said...

tryanmax, It's in my bio too: LINK.

On the slippery slope, it is very hard to avoid in most instances. Sometimes issue come down to a matter of principle, but most issues actually end up being decided in a muddier fashion, i.e. "the slippery slope."

And walking the ledge is usually the best way to handle that, but unfortunately, the slippery slope is easily abused to push you headlong down into the valley. That's a specialty of lawyers.

I think your description of copyright law as being a societal construct is absolutely right. In a natural state, you really can't protect ideas once you share them like you can protect your personal or real property. So the creation of such protections is something society has come up with as an inducement to get people to share their ideas.

And if we didn't do that, then as you say, people would have an incentive to hide their ideas from the public so they can profit from them and that would lead to a lost of knowledge as people die without sharing their ideas.

That's why people who say we should eliminate copyrights and patents entirely are wrong.

Floyd R. Turbo said...

I'm late to this game...

First... I believe in strong copyright for original authors.

Second... the 70-odd monopoly is ridiculous on its face and is a grab by large media corporations and individual artists willing to join. It's short-sighted and while it allows enrichment eventually your work will not be read, performed, etc. as cheaper and in many cases better (I'm lookin' at you Beethoven, Shakespeare, and Handel) public domain works.

Third. Fans have no rights but that being said... many artists show a disdain or outright hatred for their fans. I wouldn't put George Lucas with Warhol or Marcel Duchamps -- I think he is so geeky and isolated that he is almost OCD about Star Wars. He's like a really rich arrogant hoarder. He can't help himself -- he has to tinker

tryanmax said...

Hmm, I just had a thought. I think Floyd hit on something when he said the 70+ year monopoly is a grab by large media corporations. And indeed, 70 years is long enough for a work, if not exceptionally popular, to go beyond obscure to simply vanishing. In a way, it's as though the entertainment industry sees itself not only in competition within itself, but with its own past.

Of course this makes perfect sense when you consider that the quality of material coming out of Hollywood especially is getting lower and lower. If Hollywood were forced to compete with its own past, it would have to strive at becoming better and better.

Continuous improvement is a difficult business model. Not impossible, just challenging. Planned obsolescence is a much easier route to take. This applies as much to physical goods as it does to intellectual products.

AndrewPrice said...

Floyd, Sorry for the delay, we've been doing play by play on the debate tonight.

I agree with your points, though as I've said, my one concern is the creator who simply buries something. That troubles me. But beyond that, I agree that the original creator should have strong copyright protection -- I especially don't like Hollywood getting away with making minor changes and calling that an original work. But I do think life plus 70 years is too long.

I think you're right about this being a corporate thing. I understand that the biggest lobbyist in terms of making that happen was Disney.

AndrewPrice said...

tryanmax, That's actually a great point -- "planned obsolescence." I'm going to have to think about that, but maybe that is the point -- to let them "retire" these things so they don't need to compete with the past?

Otherwise, you would be competing not only against Star Wars, but all the reboots that people come up with once Star Wars hits the public domain. Life plus 70 lets them hold the rights until the generations who saw the original are all dead. Thus, the audience that might want the reboots is gone by the time the film hits the public domain.


LawHawkRFD said...

Andrew: As to the side issue, I have no problem with the lengthy history of constitutionally-permitted eminent domain. What I do have a problem with is a Supreme Court that doesn't know the difference between the Constitutional words "public use" and the state's usage of the words "public purpose (Kelo v. City of New London, Connecticut)."

As for a date certain for the expiration of intellectual property so that it may enter public domain, I substantially agree with you. I would prefer to see a system where the property is protected by a 21 year statute, with one 21 year extension at the option of the owner of the property. At the end of 21 or 42 years, the property devolves to public domain for all the reasons you stated.

Tying eminent domain and intellectual property rights together, I would carve out an exception for national security. For example, if an inventor came up with a workable idea that would neutralize nuclear weapons safely before they arrive at their destination, I believe that the property should be "condemned" for public use (safety) with just compensation to the inventor. Needless to say, I don't expect that Lucas would be able to come up with such a thing outside of ILM, but if he did, it would be subject to legal condemnation for public use.

tryanmax said...

This conversation has led me to brush up on copyright history. I find it interesting that everyone here, while following different historical models, pretty much agrees that the current model sucks.

LawHawk, I couldn't help but notice your suggestion resembles the Statute of Anne, widely regarded as the original copyright law. I, personally, balk at the renewal provision, preferring a single longer and transferable term.

But I admit that I don't know the reasoning behind the renewal structure. Could you explain it to me? Thanks!

AndrewPrice said...

Lawhawk and tryanmax, I've been thinking about the idea of requiring a renewal. My first thought was that it seems pointless. But then the more I thought about it, the more it made sense as a good way to get more stuff into the public domain quicker when the creator doesn't care.

Consider, for example, an author who writes a story and decides they hate it or think it won't sell and basically wash their hands of it. If the copyright period was 50 years, then for the next 50 years, that work would just sit there still tied up by the creator's ownership. But if it had to be renewed at 25, then the author could just ignore the renewal and it would be available 25 years sooner.

That actually makes a good deal of sense for sorting out people who want to enforce their copyrights and those who don't.

tryanmax said...

I hadn't thought of that. Thank you. It gives me something to chew on.

AndrewPrice said...

You're welcome. It didn't strike me at first either. My first thought was that it seemed a bit like a waste. But I can see the point.

USArtguy said...

I think the four most important words in Andrew's article have been lost, or at least sidetracked, in the discussion because of the specific use of George Lucas and Star Wars.

Those four words are "pillar of our culture". Art itself tries to lift humanity as a whole whether or not there is immediate profit to be had. Of nearly 900 works, Van Gogh only sold one painting in his life, yet it's hard to argue the world has not benefitted immensely from his brilliance. Art in any form transcends traditional boundaries of manufacture and regulation because it speaks to what makes us human… our emotions, life experience and soul. Unlike a product designed for consumption to be discarded at the end of its usefulness, art is more than just an idea put into physical form. Artistic 'styles' come into fashion and fade with time, but art itself is timeless. As long as there is humanity, art will never be obsolete.

The fact the vast majority of "art" fails those lofty ideals is not what's at stake here, rather art that has had such a radical effect on society that it changes everything that comes after it. Works recognized the world over as being a benefit to mankind in some momentous way (and this would include the original Star Wars) thus become a "pillar of our culture" and 'should' belong to the world at some point.

This is not in contrast to ownership (control) or copyright (protection of profit). The originator of art work should be able to use (control) their created work and reap as much personal benefit (profit) from it as possible. However, in the aesthetic sense, art belongs to everyone the moment it is shared. The 'profit' from art belongs to whomever owns the 'rights'… generally the author. Transfer of rights comes when they ate sold or when the time limits run out. The arguments then come from how long those rights last. How long should they last for the author? How long should they last for the new owner after they are transferred? Should these rights be allowed to be renewed? The current law, criticized as "the Mickey Mouse law", and the recent Supreme Court ruling that allows unlimited renewal of rights, puts art that influenced the world under corporate control. A mistake in my opinion.

Art and science that become a "pillar of our culture". These are the kinds of ideals the framers of the constitution tried to tackle when they deliberately wrote "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

LawHawkRFD said...

tryanmax: You're correct about the derivation of my preference for setting boundaries on intellectual property. I maintain that preference (within the boundaries of the differences I set forth) in agreement with Andrew and USArtguy. I also find USArtguy's additional comments regarding "art" as both refreshing and compelling.

AndrewPrice said...

USArtguy, I agree with that entirely.

I think ideas are unlike other property because they can be shared by an infinite number of people without diminishing other people's enjoyment of the ideas. In other words, unlike real property (land) or personal property (a car or couch) which can't be shared without taking away your ability to use it, ideas can be shared.

And as tryanmax pointed out above, ideas are not property in the natural world. In the natural world, you can't own an idea once you share it. Ownership has been a right carved out by society to encourage people to share their ideas. So really, copyright is a special right created by law, not a natural right inherent to the nature of property.

Combine this with the fact that ideas are so important -- they become the pillars of science and culture and make everything else possible -- and I really find that I have no problems with saying that if you want copyright protections, then as a condition of that, you agree that the idea will belong to the public once the time period expires.

I also think it's a mistake to keep extending this period for the very reason you cite. Ideas get stale and letting these ideas be controlled for so long is a bad idea. In effect, copyright law has gone from encouraging creators to come forward and share ideas to letting companies control these ideas until they are so old they've become worthless.

This particularly bothers me since often we're talking about small bits of knowledge like a progression of musical chords, or datacode, and anything that is remotely similar. Whose to say that someone else would not have come up with something similar a few weeks later? But now they can't because of the copyright. In effect, we are cutting off vast areas of thought and letting people tie up chunks of human potential for really long times. And if we're going to do that, then I don't think the person to whom we grant that right should have the right to simply refuse to let us use that knowledge.

It seems that allowing such behavior would be incredibly harmful to the human race as a whole.

AndrewPrice said...

USArtguy, Let me add, I think the key words in what you've said are "designed for consumption." Economists get sloppy when they use terms like consumption and they would say "art must be consumed to have value." But the truth is that art does not get consumed. Food gets consumed, land gets consumed, i.e. as you use it, it loses it's value for others and often loses it's value entirely.

Art is different. Art does not get consumed. If anything, art is anti-consumed because the more people who enjoy it, the greater its value becomes. It is, in effect, the exact opposite of consumable goods. So applying the same rule that assign property rights to consumable goods to inconsumable art doesn't make a lot of sense.

tryanmax said...

Brilliant insight! That opens up a whole new line of thought for me, "art as the anti-commodity."

I agree entirely with the concept, but it is just the surface of an ocean of implications.

AndrewPrice said...

tryanmax, Thanks. And you're right, there is a lot to consider in the implications -- enough to make my head spin for quite some time! LOL!

tryanmax said...

Give your brain a rest and go watch Moneyball (There, I've referenced it in three threads.)

AndrewPrice said...

I noticed! LOL!

shawn said...

Really late to this party, but I think something needs to be added: Lucas is on record saying that he based many element of "Star Wars" on other peoples' work. The films of Kurosawa, the old Buck Rogers and Flash Gordon serials- Joseph Campbell's "The Hero's Journey" and "The Power of Myth", et al.

I find it somewhat insulting that he turns around and says that "Star Wars" is solely his to do with as he pleases.

AndrewPrice said...

shawn, That's a really great point. He's basically borrowed other people's ideas and then he turns around and declares his own off limits. It's rather hypocritical.

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