Authors Do Not Create Content In A Vacuum... So It's Too Bad Copyright Often Pretends They Do
from the on-the-shoulders-of-giants dept
The website Copygrounds, which has been interviewing various people involved in various copyright issues, has an interview with the always interesting Henry Jenkins (who we've quoted a few times in the past). The whole interview is worth reading, but I wanted to call attention to one key part, when the interviewer asks Jenkins about the European concept of "moral rights," which the US has explicitly rejected:The current American system rewards authorship rights to corporate owners at the expense of both consumers and authors. The European tradition rewards moral rights to authors at the expense of the rest of the culture. Neither represents the most desirable system, in part because both falsify the actual conditions of authorship. Authors do not create value in a vacuum. All writers are already readers who are processing elements of their culture as the raw material for their own expressive and intellectual output, and in turn, their work becomes the raw materials for the next phase of creative expression.That line: "Authors do not create value in a vacuum," is a good one, and deserves to be repeated. So much of the debates we have on copyright and related issues seems to center on this belief that they do. In that patent realm, it's the whole "flash of genius" concept, but it certainly applies in copyright as well. The system is designed as if people are creating things entirely from scratch, rather than pulling from the culture around them to put it together in new and creative means. Disney, of course, is famous for taking old stories and making them new again, and yet it refuses to let others do the same to its works. Authors do not create value in a vacuum. And, of course, it goes beyond the idea that authors are building on what's come before. The value piece is often added by the readers themselves, and how they interact, mold and share the content that has been created. Authors do not create value in a vacuum... but we've built up laws and institutions that seem to assume they do.
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Filed Under: authors, content, creation, henry jenkins
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Even J.R.R. Tolkien, who was famous for the depth of detail to which he went to make his writing seem authentic, based his fictional tongues on dead languages that he found fascinating.
Read the Wikipedia entry for more details: href="http://en.wikipedia.org/wiki/Languages_of_Arda
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But beyond all that, the greatest boon to the Star Wars franchise is the imagination of its fan-base. If kids hadn't grow up imagining their own adventures as Jedi Knights, Corellian smugglers, and Rebel starfighter pilots, the franchise could have died out after the Star Wars Holiday Special and the Droids and Ewok cartoons.
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Cures and treatments
Real authors actually are in a vacuum, and need to get air. And right this moment, many authors have flocked over to Apple.com where they gaspingly whack their keyboard to be placed on the waiting list for a product called Macbook Compressed Air. The "Book Of Ancient Chinese Medicine Man Prophesies" state that Macbook Compressed Air can cure some of the symptoms authors that live in a vacuum experience.
The same prophesy claims Macbook Compressed Air also cures having 100 tabs open, and has power to convert Android loyalists to iPhone, but these two theories haven't been scientifically proven yet.
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Examples
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Oh, wait, you didn't. Silly me.
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Is one of the most famous laws in copyright history good enough for you?
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Do you have another example?
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Lawyer's trick. No one was talking about the trademark. They were talking about the copyright, but it's pretty sleazy to ignore that and pretend it's about trademark.
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Not sure I understand the question. Are you honestly suggesting that Disney was not the driving force behind the CTEA?
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Superman will never enter the public domain. Why would anyone have a problem with that?
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I agree. Which is why Disney never should have been able to copy Steamboat Bill in creating Mickey Mouse, right?
Oh wait, there's a logic fail here. Apparently, since you don't HAVE to use Mickey Mouse, then Disney has not prevented anyone's speech.
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I can name plenty of speech in the last 70 years that Disney hasn't prevented.
Creators have managed to get around the troubling "Mickey Mouse" problem. Kurt Vonnegut did it; George Lucas did it; Bob Dylan did it.
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Terry, please. Who made that claim? Intellectual dishonesty does not look good on you.
Stifling creativity does not mean that "creativity stopped." I mean, seriously. What's with the bullshit? Can you really not understand the difference between *some creativity is stifled* and *all creativity is stifled*? I took you seriously because your blog seemed smart, but this is just beyond ridiculous.
I thought you were above ridiculous claims.
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Under the reign of Communist Russia, plenty of artistic works were still created.
Therefore, Russia's censorship laws worked perfectly fine.
Right?
p.s.: http://www.google.com/search?q=disney+sues
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Be thankful Kurosawa is not a jerk.
Nevermind the fact that the whole original Roddenberry pitch for Star Trek 10+ years earlier was "wagon train in space".
You don't have to look to the current software patent shenanigans to see how Big Content tries to "own a genre" or something else equally absurd.
Ownership of ideas chills free speech because it allows for more ways for your speech to be objected to and supressed. Some "owner" can assert the "right to exclude". We saw that just the other day with that very historically relevant 20/20 interview.
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Re: Examples
You can find it here:
http://films.onf.ca/rip-a-remix-manifesto/
or here:
http://www.hulu.com/watch/88782/rip-a-remix-manifesto
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Re: Examples
Uh, how about ANY usage, reference, satire, poster, remix, youtube vid, web site, fan fiction, with ANY Disney character EVER? They are THE single most litigious company in existence with regards to ANY usage, no matter how small.
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Anything else you'd like?
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http://www.post-gazette.com/magazine/20000702EpcotSide7.asp
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Then there was "Tom and Jerry", contemporary movies having a mouse as the principal character, etc.
Sounds to me that there are plenty of opportunities to create new expressions about mice.
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Another legal trick. Trying to get people to defend a negative. How does one prove what never happened because Disney has made it clear that it will sue people who do?
In the meantime: http://lmgtfy.com/?q=%22disney+sues%22+copyright
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It's not a legal trick to ask you to provide an example. It's simple logic: if you say x, the burden is on you to provide evidence of x.
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Really? So, in Terry Hart's understanding of the First Amendment, you're limited by having to explain WHY you want to express yourself in a certain manner? Really?
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It's not a legal trick to ask you to provide an example. It's simple logic: if you say x, the burden is on you to provide evidence of x.
It is a legal trick: asking someone to provide an example of a negative? Please. The whole point is that the content was not created. How do you show that content not created otherwise would have been? Terry, stop with the intellectual bullshitting.
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You could always "Tweet It".
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Except that it does. Giving one person a monopoly on the idea shows that it does.
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a) copyright law protects expression. If the expression is unique you have copyright. The only material issue with respect to prior cultural artifacts is - have you plagiarized them in which case you don't get copyright.
b) patent law is much more explicit that prior art is directly relevant. You can't get a patent if it can be demonstrated there is prior art and your contribution is not novel and even if you get it because no-one detected the prior art at the time anyone can litigate to get the patent recinded.
giving what you call a monopoly proves nothing.
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So all I have to do is spend a couple million dollars in a lawsuit to prove prior art ... BEST SYSTEM EVER!
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The difference between theory and practice
In theory, it works like you described and everything is fine. In practice...
a) There is something called "derivative works". Even if your expression is unique, if you based it on someone else's (and since authors do not work in a vacuum, it is hard to completely avoid it), you can be sued and lose. And how much is needed for something to be a derivative work? Is the same story retold from the point of view of the antagonist a derivative work? Is a different story on the same universe a derivative work? Is a completely independent story but with similar characters a derivative work?
The current tendency seems to be taking an expansive view on "derivative works", meaning that in the end you get an almost monopoly on a particular idea.
Also, plagiarism is copying something and passing it off as your own, not just copying something.
b) First, you can get a patent if there is prior art. You can even get a patent if someone else has a patent on it (there was a famous case of it, I cannot recall if it was RSA or LZW). And litigation to get the patent rescinded is very expensive, so it is not a practical option.
And even if the patent is valid, other people do not work in a vacuum. They would like to make small improvements to your patented work - except that they can't. The theory is that they would simply license the patent; in practice, the patent owner often will not want to license, wants unreasonable conditions, it is too expensive (even if a single patent is not expensive, it is not uncommon to have to use hundreds or thousands of patented techniques to manufacture something), or they simply do not know about the patent (with millions of patents, written on a code which needs a lawyer to decipher, and with scope which is only really decided after litigation, it is simply not possible to know which ones apply).
It is no wonder patents create a monopoly, and often several overlapping monopolies, generating extremely wasteful amounts of litigation.
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Can "ideas" per se possible be eligible for enforcement under some legal theory? In very limited instances the answer may be "yes", but this is a matter generally within the scope of contract and unfair competition law, laws that are divorced from federal copyright and patent law.
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I love it when lawyers stubbornly insist that the law says something so the damned reality before their very eyes can be ignored.
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Try to secure a patent on an invention that has neither been conceived nor reduced to practice.
Ideas are not protectable (except in some circumstances under, perhaps, law such as contract law) under either copyright or patent law.
If you can show me a copyright on an "idea", as opposed to a "work", I will certainly reconsider my comment...but this will likely be a bit difficult since by definition an "idea" is something that is does not exist in any tangible form.
If you can show me a patent on an "idea", as opposed to an "invention", I will certainly reconsider my comment...but this will also likely be a bit difficult to do since be definition "conception" commences the "inventive process" and "reduction to practice" concludes it.
There are circumstances where a copyright or a patent can present issues, but "ideas" is not one of them.
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"Comin' Through the Rye." The unofficial sequel to "Catcher In The Rye."
Not a single sentence from "Catcher" was used in the sequel, but it was still found to be copyright infringement.
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Perhaps if you read the opinion by the Federal District Court this will be more clear.
See: http://www.scribd.com/doc/17040458/Salinger-v-Colting-Opinion
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It's the perpetual ownership that's the problem/indicator.
It's this notion of "ownership" in perpetuity that shows a clear disregard for the fact that creative works are collaborative and derivative in nature.
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@ 12
As copyright duration is extended and extended we loose free access to the culture of the twentieth century and loose an important fuel for our creativity.
I'm not very much into Mickey Mouse, but take for instance Jazz music. It thrives on building on copyrighted songs. I'm sure many many Jazz musicians "go illegal" in order to make a living from their art, they couldn't possibly clear all the rights. Copyright is not protecting these creative people's side of the debate.
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@ 12 pt 2
One of the greatest works of the Twentieth century is Messiaen's Turangal�la Symphony. The score costs about $150 (I was actually glad to check again for this post, it used to cost $300!).
I would love it if copyright lawmakers acknowledged that creative people need a healthy public domain. Which is what they seem to be totally ignoring.
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Preaching to the choir
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a) of course they don't create in a vacuum. nothing is so created. so reductio ad absurdum nothing can be created.
b) copyright does not protect the ideas - some of which, or precursors of which were indeed floating around - but the expression. And the expression was not floating around. 'Catcher in the Rye' was indeed written in a time and place but it didn't just fall off a tree.
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Your understanding may be, but the argument is sound.
a) of course they don't create in a vacuum. nothing is so created. so reductio ad absurdum nothing can be created.
That statement is, of course, meaningless, and has nothing to do with what I wrote.
b) copyright does not protect the ideas - some of which, or precursors of which were indeed floating around - but the expression. And the expression was not floating around. 'Catcher in the Rye' was indeed written in a time and place but it didn't just fall off a tree.
Interesting example. Since a US court recently banned entirely unique expression in the format of an unofficial sequel to Catcher in the Rye. Seeing that decision, I'm at a loss as to how anyone can still claim copyright law only protects expression and not ideas.
Lawyers love to hang their hat on the idea/expression dichotomy, which sounds so good in theory. The reality is that there is no such thing.
The point remains. Copyright is based on the idea that works are created wholly from an individual's own genius, and then protects it.
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Basil, the Great Mouse Detective is directly based on the works of Arthur Conan Doyle, who based Holmes on a colleagus of his.
Popeye is a direct ripoff of Steamboat Willie. That fact that the characters are human does not change that.
Snow White is a direct rippoff of the folktale.
Shakespeare was a p[lagiarist of the highest order, and yet he's one of the most crlebrated playwrights in the world.
Chaucer literally stole his stories frrom people and published them. Sound familiar? Look up one Gilderoy Lockhart.
Wihtout some form of plagiarism, most of the things we have would not exist.
Copyright durations mean that works, such as Beethoven's 5th, are NOT PUBLIC DOMAIN. It's not about the creating of the work; it's about the stifling of new, yet derivative, works.
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How does it make sense, then, that Snow White, Cinderella et al are copyrighted, after they became public domain?
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The new ones trying to do something new are flourishing so you get the idea that copyright does not do the work it is supposed to do and that is to incentivize people to create more because the people who need it the most don't produce anything and the people who don't need it and even ignore it are the ones producing. When your supposedly most creative people produce less there is something wrong. Doubt it?
Got the numbers to disprove what I just said please show it to us.
Lets get the hundred top artists of today and compare them with the top artists of yesterday.
Heck the daughter of Curtis Lee is a great example she did a lot less then her father but probably has more money. Curtis made around 200 movies others today make a 100 that is a drop in production.
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Geeze. Correlation != causation. Terry, you're ruining my view on you as an intellectually honest player in this debate.
Do you really not understand the difference between absolute advancement and the rate of advancement?
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I've never heard of that. Could you break it down for us?
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Are you serious, or are you joking?
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As the internet has grown, both production and access have increased. Stronger copyright? No. The word of the law is stronger, but its actual effect on public behaviour has never been weaker. The internet has done good for the public, and done it because it has overcome the restrictions of copyright.
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X "do not create value in a vacuum" is basis of
[Since this thread was hijacked by the interogatory method, I'll mention again that a mechanical filter for number of question marks in one post, and limiting frequency of posting would be a great help here. Even if not totally effective, the effort to bypass such mechanical limits would provide valuable information in itself.]
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