- This video is brought to you by Mine.
(dramatic music)
What's up, Wisecrack?
Michael here.
When searching for a video on YouTube,
you may have seen this,
or maybe you've heard about the copyright hell
Twitch streamers have recently been facing.
Copyright claims and legal battles are everywhere,
from record labels suing YouTubers
to YouTubers suing television executives
to the entire music industry threatening to sue Twitch
for doing such a bad job monitoring music copyright claims.
Over the past 20 or so years,
there have been so many copyright cases
that Congress actually created a small claims court
for people to duke it out over intellectual property,
and even worked it into the second COVID stimulus bill.
So, it's worth asking a couple questions here.
First, how did we get here?
And second,
is our current set of copyright laws good or bad,
and for who?
So, join us as we try to figure it all out
while getting increasingly angry at Disney
in this "Wisecrack Edition" on "Copyright: What Went Wrong?"
While the average person will probably never
have to battle a huge corporation over a copyright claim,
there are plenty of other reasons we should be mindful
of our relationships with big businesses.
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Now, back to the show.
Now, one of the reasons copyright is so interesting
is because it creates an inherent conflict.
On one end, it protects your creative work
from being ripped off and sold by others.
- Let me see.
Hello, lawsuit.
- But on the other hand,
it can actively stifle people from remixing or reacting
to other creative work in a way that's entertaining.
And we can understand that conflict best
by looking at the man whose company basically created
our modern intellectual property landscape, Walt Disney.
See, in 1928, Walt created the character
Oswald the Lucky Rabbit for Universal Studios.
Oswald was a huge hit.
But when Disney approached Universal
about making more Oswald cartoons,
he found out that the studio
was already working on new Oswald shorts without him.
And because they owned the rights,
he couldn't do anything about it.
Walt walked away fuming,
and without the rights to this adorable bunny.
It was then that Disney vowed to only work for himself
and that he would own exclusive copyright
to all the characters he and his company created.
And now Disney owns the copyright
to basically every character any of us have cared about
for the past 30 years.
So, way to be, Walt.
Anyway, as the story goes,
in a fit of rage on his train ride home,
Disney developed a brand-new character
that would belong to him and him alone,
Mickey mother (bleep) Mouse.
And despite some inexplicable sartorial choices,
Mickey was an unprecedented success.
Being in control of his own intellectual property,
Disney did what copyright laws should encourage.
He made more Mickey Mouse stuff,
and that worked out pretty well for him.
And examples of copyright gone right are everywhere.
In 1990, for instance, screenwriter Art Buchwald
sued Paramount Pictures for stealing his idea
and turning it into "Coming to America".
He won the lawsuit and then settled
with Paramount for $900,000,
which was probably in their budget
after the film brought in $288 million.
And if someone takes your song
and just reposts it on YouTube,
you can either get the ad money from it
or block it entirely,
and that's probably a good thing.
So, while copyrights have been super useful
for many creators,
these days it seems like it has a dark side.
That is, so much stuff is protected by that C in a circle
that a lot of folks think it's stifling creativity
and making it impossible for artists
to create new work derived from
or inspired by existing culture.
To get back to Walt,
not only is he an example
of why protecting your creative work is important,
he's also an incredible example
of the perils of copyrighting things to eternity.
See, in 1937, Disney released
his first feature-length animated film
based on a story entirely concocted
by his big, beautiful brain,
which is definitely not frozen in a vat hidden beneath
the Pirates of the Caribbean ride at Disneyland.
Sure, maybe I'm joking.
But the story of Snow White was totally taken
from the Brothers Grimm,
who themselves got all of their stories
by traversing the German countryside,
interviewing grandmas about how to scare kids.
- He takes his great, sharp scissors out
and then cuts their thumbs clean off.
- [Michael Scott] Dwight, Dwight!
- [Michael] It's not just Snow White.
The Disney company,
for all its aggressive copyright enforcement-
- A Berkeley school has been ordered to pay up
for playing a Disney movie at a children's event.
- Just loves borrowing other people's stories
from the public domain,
meaning they're not copyrighted and are free to use.
For example, "Mulan" was based on a Chinese legend,
"The Little Mermaid" on a Hans Christian Andersen story,
"The Jungle Book" on Rudyard Kipling's characters,
and the list goes on and on.
This isn't necessarily bad, but here's the grift.
When Disney pulls from the public domain to make a movie,
they then copyright their story and characters,
making it nearly impossible for the next storyteller
to pull from the same influences.
Try writing the next "Little Mermaid"
and you'll see what we mean,
but don't expect us to pay your legal fees.
But arguments over intellectual property
are way older than Mickey Mouse.
In fact, copyright disputes outdate the printing press.
In his epigrams, the ancient Roman poet Martial
complained about receiving no profit from the booksellers
who peddled his popular poems.
And in sixth century Ireland, a literal battle
that cost 3000 lives was fought over a dispute
about a copied manuscript.
But copyright laws didn't develop
just to settle disputes in court and without bloodshed.
- We sampled it from them, but it's not the same bassline.
Like, it goes (mimics bass)
That's the way theirs goes.
Ours goes, (mimics bass)
that little bitty change.
- [Michael] They were also seen as a way
to incentivize people to keep churning out
exciting new work,
and boy, was that a success!
- [Announcer] Welcome to-
- Yabba-dabba-doo!
- [Announcer] The Space Jam!
- Okay, but intellectual property orgy
with basketballs aside,
we do want to encourage the guy
who made "Beethoven" to make that,
as well as "Beethoven's 2nd" and "3rd" and "4th"
and "5th: Big Paw", plus "Big Break",
"A Christmas Adventure", and "Treasure Trail".
And this is exactly what the founding fathers had in mind
when they baked copyright law into the Constitution.
Like a lot of things in this wrinkly old scroll,
the clause wasn't super specific,
but it clearly indicated that Congress
could use copyright restrictions
to incentivize writers and scientists
to create original works.
It reads: Congress shall have power to 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.
Laws enacted under the copyright clause
created limited monopolies,
that is, monopolies which give authors a good run,
but don't last forever.
Early policies were deeply informed
by a utilitarian theory of property ownership.
The idea is inventors and authors should be rewarded
proportionally to how useful their creation is to consumers,
and also that people make more useful stuff
when they don't have to worry about people stealing it.
Of course, the logic behind this isn't exactly perfect.
It's kind of like arguing that if Disney
wasn't able to copyright his own work,
he would have been too lazy to create anything ever again.
And maybe that's true,
but as anyone who's gone to a show at Denny's knows,
not every artist is in it for the money.
(rock music)
(angry yelling)
- Still, English philosopher Jeremy Bentham
argued that copyright laws incentivize inventors
to make cool stuff
by offering them a monopoly on the profits.
He wrote that: Without the assistance of the laws,
the inventor would almost always be driven
out of the market by his rival,
who, finding himself without any expense,
in possession of a discovery which has cost the inventor
much time and expense,
would be able to deprive him of all his deserved advantages
by selling at a lower price.
This all seems pretty reasonable.
Incentivize talented and smart people to make things
by giving them the exclusive ability
to profit off their idea.
And then once they've milked that little Eureka moment
for a long time or, you know, die,
it goes into the public domain
so someone else can riff on it.
What I'm saying is,
if you asked the framers of the Constitution
if Dr. Seuss's kid should be able to make money
off of cartoons adapted from his books
30 years after his death,
my guess is they'd say, "Nah."
But Seuss's estate does still control and profit
off of all sales of his books and all derivative content.
And because the Seusses still control
what can be done with Seuss' IP,
we can't enjoy the "Star Trek" Dr. Seuss mashup book
the masses were begging for.
So, what the flying (bleep) happened?
Here's the thing.
Until the early 1830s, copyright terms only lasted 14 years.
And even by the time Disney created Mickey Mouse,
copyright only lasted 28 years
with an option to renew for another 28 years.
That would've meant Mickey Mouse
would've become public domain in 1984.
But not so fast.
In 1976, Congress gave the Copyright Act a complete overhaul
with some guidance from a team of Disney lobbyists.
See, Walt was dead.
His head was, again, not frozen and stored
beneath the Pirates of the Caribbean ride in Disneyland,
and the company's copyright on their iconic character
was set to expire soon.
They weren't too crazy about losing ownership
of their coveted revenue-generating glove enthusiast.
The resulting 1976 Act increased the term
of copyright protection from 28 years
to the life of the author plus 50 years.
All in all, the lobbying efforts
of Disney and other corporations
kept Mickey locked up in Cinderella's Castle until 2003.
Goofy, Pluto, and Donald also got
their Disney prison sentences extended,
and it also became way easier to get sued
for selling a crocheted pattern
of them sitting in Disney jail.
Which I've never visited, but Universal jail, you know.
And if you haven't noticed,
Mickey Mouse is still not in the public domain.
That's because in 1998,
the Copyright Term Extension Act, or CTEA, was passed,
again extending works for 70 years after the author's death
and also protecting corporate works
for 95 years from their original publication
or 120 years from their creation, whichever expires first.
Which means Flo won't be public property until, like, 2125.
So, guess that makes that screenplay I wrote illegal.
Anyway, people literally call this law
the Mickey Mouse Protection Act because, duh.
According to legal scholar Laurie Richter,
Disney spent $6.3 million lobbying for the extension.
They even set up a political action committee,
the Disney PAC,
and donated to senators who would eventually
sponsor the CTEA.
This was coupled with lobbying efforts from other folks,
like musician George Gershwin's estate,
which was and still is very concerned
that Gershwin musicals might be sampled in rap music.
Okay, dude.
This all resulted in yet another extension for Mickey,
as well as a handful of other characters
that would have been in the public domain by now.
But maybe you're thinking,
so what if Disney wants to keep control of its characters?
Well, one criticism is that Disney
is keeping control of characters
adapted from the public domain,
and that's really bad for art.
Pooh, Snow White, the Little Mermaid, Cinderella,
Aladdin, Hercules, Sleeping Beauty, Mulan,
they were all taken from works
that were in the public domain,
which means they were available to the public
and were not protected by copyright.
Sure, nowadays you could try
to make your own version of Mulan,
but barring the rare exception,
it's remarkably hard to have much success
when a multinational corporation has a virtual monopoly
on the characters you are creating
and the story you're telling.
That said, you can certainly try.
Mockbusters aside, a bigger issue than Disney
raiding the public domain while contributing nothing to it
is that the copyright extensions they lobbied for
have made hundreds of thousands of lesser known works
completely unavailable and inaccessible.
They just sit there, copyrights extended,
companies holding on to them to maybe one day
turn them into something.
Who knows what creative derivative work
might've come from them?
After all, great works ranging
from Goethe's "Faust" to "West Side Story"
were also derivatives of other stories.
And many scholars feel that copyright extension
well beyond an author's death is far from utilitarian.
Increases in copyright protection
can actually harm the public more than they benefit authors,
especially when those authors are dead
and definitely not frozen beneath the pirate ride
and the new authors are multinational corporations.
One argument lobbyists and copyright enthusiasts use
is something called the tragedy of the commons argument.
Coined by Garrett Hardin in 1968,
The tragedy of the common stipulates
that open shared access to a resource
would cause overuse and destruction of that resource.
So, like open farmland,
an idea being open and sharable will only be harmful.
But research shows that copyright correlates more
with the disappearance of works
than with their availability to the masses.
in his study "How Copyright Keeps Works Disappeared",
scholar Paul Heald analyzed large samples
of both Amazon books and songs and found that:
Shortly after works are created and propertized,
they tend to disappear from public view
only to reappear in significantly increased numbers
when they fall into the public domain and lose their owners.
Like how Marvel is totally sitting
on countless forgotten villains and heroes
who may never return to print
or make it to the big screens,
or how there hasn't been a movie yet
about Namor, the King of Atlantis
because of copyright disputes between Marvel and Universal.
Another legal scholar, Michael Heller,
calls this the tragedy of the anticommons.
Heller argues that while privatizing a commons
might stop wasteful overuse,
it can also cause wasteful underuse.
That is to say when everything is copyrighted
and the landscape becomes so fragmented,
it becomes very difficult to make something new.
The public can't access these things,
but competitive copyright owners
don't collaborate with each other, either.
It might be helpful to think about the public domain
as a warehouse of ideas which authors can reuse,
sample, change, and incorporate into other works.
If the warehouse isn't well-stocked,
people don't have pre-existing
cultural materials to work from.
Some of Europe's most well-regarded composers
wrote incredible pieces by freely cribbing music
that no one particularly owned.
And take this little tune you might remember
from "The Lion King".
(dramatic orchestral music)
It comes from an old church Gregorian chant
that would also make its way
into a famous piece by Mozart and then Hector Berlioz,
(brooding orchestral music)
another by Franz Liszt,
(brooding orchestral music)
and then another by Gustav Holst,
(sinister orchestral music)
and then the "Sweeney Todd" musical,
(menacing orchestral music)
and a Jethro Tull track.
(rock music)
That is to say,
ideas spreading freely is often, but not always,
a very good thing.
But the real tragedy is that another warehouse of ideas
is fully stocked,
but no one's allowed in there except the owner
who checks in, like, once every 20 years.
The one saving grace that sometimes
lets us breach the anticommons,
at least in art and media,
is something called fair use.
It permits the use of unlicensed copyrighted work
under certain circumstances,
like parody, education, commentary, and criticism.
It's how wisecrack gets away with showing clips
from lots of movies and TV shows
without getting sued so far.
The underlying argument for fair use is as utilitarian
as Jeremy Bentham's position on copyright.
Types of reuse under fair use are allowed
because they benefit the public as a whole
and they don't hurt the original creator
in any measurable way.
The downside of fair use is that it's a legal defense.
That means that if you wanna fight a copyright strike
by claiming fair use,
you have to go to court unless the owner backs down.
There, everything is evaluated
under a complicated set of criteria.
How much of the copyrighted work is used?
What is its effect on the market?
How much is it transformed?
Going to court may or may not be worth it
for either party involved,
but in some cases, it's probably better
than paying unaffordable licensing fees to studios.
Having the anticommons doesn't just mean
that we never see character crossovers
from competing companies anymore.
It's way scarier than that,
because intellectual property
isn't just art and books and media.
It's also things like drug patents.
Heller gives the example of a drug company
that found a potential treatment for Alzheimer's disease.
In order to develop it,
they needed access to dozens of other patents.
The owners of those patents demanded
exorbitant sums of money,
and some even blocked the whole deal.
The company was never able to get access to the patents.
The drug, which might have saved millions of lives,
sits on a shelf.
It kind of seems like all these patents
and intellectual property rights
are not benefiting the public.
Between terrifying stories like that
and artists feeling smothered
by giant corporations that own everything,
it's not surprising that a host of groups have popped up
advocating for changes,
ranging from the elimination of biopatents
to the legalization of peer-to-peer file sharing.
These include Creative Commons,
which advocates for more flexible and open copyright laws
so that creators don't have to resort
to fair use as a defense.
Others argue for the complete abolition of copyright laws
and encourage creative piracy until those laws change.
Groups like the League of Noble Peers
promote the movement against intellectual property,
while Pirate Cinema literally screens movies
without licensing them.
Meanwhile, Mickey Mouse is set
to enter the public domain in 2024.
The jury's still out on if Disney lobbyists
will convince Congress to extend copyright terms again.
Hopefully they won't,
and we can finally release our limited edition
Mickey jailbreak merch.
But what do you guys think?
Should we abolish copyright altogether
or change the laws to give a little more flexibility
to creators and artists?
Let us know in the comments.
Big thanks to our incredible patrons.
Slam that subscribe button like you're Mickey Mouse
trying to break out of the patent office,
and don't forget to ring that bell.
And as always, thanks for watching.
Later.
(upbeat music)