A Filmmaker Explains Why Copyright Sucks Today: An Excerpt From 'Sell Your Own Damn Movie!

from the filmmakers-figuring-it-out dept

Tue, Jun 14th 2011 1:38pm — Lloyd Kaufman

Written by Lloyd Kaufman with Sara Antill. Lloyd Kaufman is founder of Troma Films. His most recent book, “Sell Your Own Damn Movie!” is now available in paperback.This article is cross-posted from IndieWIRE.

I met a Troma fan in Florida a few years ago who told me how he used to get eight Netflix DVDs at a time, keep them for a day or two while he downloaded them to his computer and then return them for eight more. Once he had the digital files, he would make copies for his friends, asking about $2 for the cost of the blank DVD and the effort.

One night, while extremely high, he had figured out that, based on the number of movies he had copied and the penalty for each one, if caught, he would owe the government about $2.5 million in fines and face the rest of his life in prison.

Now, for someone who had already sold himself to the government in the form of federal student loans for film school, the prospect of an extra $2.5 million was pretty frightening. He gave up the pirate DVD business and started selling weed instead, as there were fewer risks involved. That was how we met. Last I heard, he was in jail for selling drugs, but he’ll be out sooner than if he had been caught selling $2 DVDs of “I Know Who Killed Me” to his friends.

Thomas Jefferson would have been appalled at this story. And not just because I think he would have liked trashy Lindsay Lohan movies. But because Thomas Jefferson believed that all art should belong to the public. For him, public domain was a large, thriving democracy, while copyright was a fat king thousands of miles away eating puddings and meat pies.

Unfortunately, we have reversed this with current law. Now copyright is king, while public domain has been relegated to obscurity. Thomas Jefferson, who was against copyright and said himself, “Inventions then cannot, in nature, be a subject of property,” finally agreed to compromise and include the issue of patents (and, by interpretation, copyright law) in the Constitution:

The 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;

First of all, let’s understand that authors meant writers. No heavy metal singer or filmmaker was assumed to be covered under this law. And by “limited times,” Jefferson meant 14 years. That meant that if you invented something or wrote a book, you had 14 years to make back the money that you spent and make a profit. After that, the invention or work would become part of the public domain and other people would be able to improve on it.

That’s exactly what happened when Edison didn’t secure an international patent for his early film projector! Everyone in Europe, including those smarter and more passionate than Edison, had the opportunity to improve on his design and create the film industry that we know and love today!

In fact, while Edison was shooting his films in New Jersey, some bright folks had the idea to get out of New Jersey and New York and head to California to make their movies. It wasn’t because they loved the beach; it was because they wanted to be farther away from Edison so he would have a harder time enforcing his patents.

And there’s the irony—the entire Hollywood studio system was based on evading patent law, yet now they are the strictest enforcers! They are the ones suing sweaty prepubescent fanboys (and their parents) for downloading copies of “The Hurt Locker”!

Once patent and copyright law had been written into the Constitution, it was decided that everything created before the law would be considered public domain. That’s why the writings of Plato and Homer are free for anyone to use.

But considering that the ancient Greeks created democracy and civilization, you would think they would have created copyright law if they had wanted to. The fact that they didn’t makes me think they would have supported truly independent art. In fact, I may start calling myself a modern-day Socrates!* (Like Socrates, I want to drink poison and die. But unlike Socrates, I am a chicken. Or at least a (Night of the) Chicken (Dead). (Shameless plug.)

So with Jefferson’s 14-year copyright, everything seemed fine. But then a man named Walt Disney created a little shit named Mickey Mouse, and everything changed.

HOW MICKEY MOUSE BEAT THE SHIT OUT OF THOMAS JEFFERSON

In 1928, Mickey Mouse appeared in the first sound-synchronized cartoon, Steamboat Willie , which was a parody (in Disnenglish, a copyright infringement) of a Buster Keaton film, “Steamboat Bill, Jr.” Mickey Mouse became an instant star and Walt Disney’s meal ticket. By 1956, when “Steamboat Willie” was all set to enter the public domain, Disney had become a powerhouse corporation, and it interceded on little Mickey’s behalf:

Disney Executive: You see, Senator, if “Steamboat Willie” were to belong to the public, they would pretty much own Mickey Mouse, too. And we can’t let that happen.

Senator: No, no. We must protect Mickey.

Disney Executive: What we need, Senator, is an extension of the copyright law. That way, we can keep Mickey safe.

Senator: Yes, yes. We must protect Mickey.

Disney Executive: Yes, Senator, we must protect Mickey.

The Disney executive puts away his hypnotist materials, leaves a pile of cash on the table, and leaves. The hypnotized senator wakes up with the overwhelming urge to protect Mickey Mouse. Days later, copyright law is extended.

Buster Keaton, however, continues to receive food stamps.

This scene is repeated in 1984 and 2003. “Steamboat Willie” will remain the intellectual property of Disney until 2023, almost 100 years after it was created and many, many years after the last person who worked on it became snail food. And at some point before 2023, I’m guessing the copyright laws will be extended once again.

An interesting little twist to this whole story, which was sent to me by steamboat4eva@hotmail.com, is that someone at Disney discovered in the 1990s that “Steamboat Willie” may actually be in the public domain already. This was due to a mistake in the wording of the original copyright. A law student at Arizona State University investigated this claim and agreed. Then another law student at Georgetown wrote another paper confirming the claim. At this point, Disney threatened to sue the student and the claim hasn’t been uttered since.

I’m not advocating breaking the law. I can’t, because then if you do break the law, you can come back and say, “Kaufman told me to,” and that would be a gigantic goiter in the ass for me.

So I’m not telling you to become a pirate and break the law. What I am saying is what we need is to once again make public domain the Earth and demote copyright to a dwarf planet.

* NOTE FROM LLOYD’S ASSISTANT: I don’t think you need to say this, since filmmakers didn’t exist at this point.

**LLOYD’S RESPONSE: I’m still operating under the theory that film was invented by the Chinese thousands of years ago.

****ASSISTANT’S RESPONSE: Whatever. Lloyd sucks balls.

******NOTE FROM FOOTNOTE GUY: Uh, should I take this out? Whatever, fuck it. I think Lloyd sucks balls, too.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, movies, public domain

41 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 14 Jun 2011 @ 2:07pm

But considering that the ancient Greeks created democracy and civilization, you would think they would have created copyright law if they had wanted to. The fact that they didn�t makes me think they would have supported truly independent art.

Maybe that's what it makes you think, but what it makes me think is that the printing press had not yet been invented at that time. Copyright was an answer to a question the ancient Greeks had no reason to even ask.
[ link to this | view in thread ]
Dave, 14 Jun 2011 @ 2:10pm

Steamboat Willy paper that was referenced
http://www.public.asu.edu/~dkarjala/publicdomain/Vanpelt-s99.html

Free Willy! Err... Mickey!
[ link to this | view in thread ]
thublihnk (profile), 14 Jun 2011 @ 2:21pm

Lloyd Kaufman on Techdirt? I couldn't be happier right now. Especially because he makes so many great points.
[ link to this | view in thread ]
Greevar (profile), 14 Jun 2011 @ 2:38pm

Re:
That's entirely possible, but can you prove it? So I guess neither point stands up to scrutiny. Can you prove that if Socrates had the printing press that the Greeks would have invented copyright? What I can conjecture from these philosophers and teachers is that since they advocated for the expansion and distribution of knowledge and philosophy, they would likely be against anything that restricted anyone from freely disseminating such knowledge.
[ link to this | view in thread ]
Jackn, 14 Jun 2011 @ 2:45pm

Re:
Hum, i didn't notice any of those great points. or even the point of this article (except copyright crimes are more severe than drug dealing). the rest is just noise
[ link to this | view in thread ]
Chosen Reject (profile), 14 Jun 2011 @ 3:01pm

Re: Re:
Here, I'll summarize it for you:
* One of the leading founding fathers didn't like the idea of copyright.
* He (and others) only let it in based on the idea that a very limited group of people would get a very limited time for their monopoly. All of those "very limited"s have become the exact opposite.
* The greatest Greek philosophers probably would not have liked copyright.
* The industry that is one of the biggest proponents of maximizing intellectual property laws got its start by infringing on someone else's intellectual property.
* Disney is willing to sue if you point out that what they claim is protected by copyright law actually isn't.
[ link to this | view in thread ]
DandonTRJ (profile), 14 Jun 2011 @ 3:03pm

Enjoyed the piece, but I think there might be an error -- the claim that Mickey Mouse was set to go PD in 1956 (28 years after its creation) seems to be based on the belief that copyright was still operating a 14-year initial term with a 14-year renewal term. To my knowledge, the 1909 Act changed this to a 28-year initial term with a 28-year renewal term, so there was not yet any need for legislative hand-wringing. That only came around in 1998, when Mickey was on the verge of exhausting his cumulative 75-year term under the 1976 Act. That's when Sonny Bono stepped in to extend all existing protection another 20 years.
[ link to this | view in thread ]
adrian, 14 Jun 2011 @ 3:23pm

"Once patent and copyright law had been written into the Constitution, it was decided that everything created before the law would be considered public domain. That�s why the writings of Plato and Homer are free for anyone to use."

The US government did not have the authority to grant rights in the writings of the Greek philosophers.
[ link to this | view in thread ]
Marcus Carab (profile), 14 Jun 2011 @ 3:32pm

Re: Re: Re:
you left out a big one:

* Disney (a private company) was the architect of much of modern copyright law
[ link to this | view in thread ]
Marcus Carab (profile), 14 Jun 2011 @ 3:34pm

Re:
Why not? Creating a monopoly around these works would have been no more or less arbitrary than the monopoly they did decide to create.

Don't forget: copyright is an artificial construct, not a natural right. It didn't exist for most of civilization's history. It could have been whatever we wanted it to be.
[ link to this | view in thread ]
btr1701, 14 Jun 2011 @ 3:43pm

Re: Press
> the printing press had not yet been invented at
> that time.

So what? They still had pen and paper. Ideas could be copied and "infringed", just not perhaps on such an extensive scale.
[ link to this | view in thread ]
Anonymous Coward, 14 Jun 2011 @ 4:11pm

Re:
Yes, but their descendants should they be provable, would try and claim all of the back royalties they have been robbed of for centuries.
[ link to this | view in thread ]
Anonymous Coward, 14 Jun 2011 @ 4:40pm

Re: Re:
Robbed?? Really?

Robbed of what exactly? Royalties that didn't exist _then_ and shouldn't exist _now_?

That's not only ridiculous, it's insulting to every intelligent and reasonable person alive. You're pretending that everyone in the world _should_ be paying royalties to every author descendant from the beginning of human civilization. To every inventor descendant. To every musician descendant.

And who should we let decide how much in royalties the guy/guys that invented the wheel should receive? And how much to each descendant?

Robbed? Really?
[ link to this | view in thread ]
Anonymous Coward, 14 Jun 2011 @ 4:45pm

Re: Re: Re:
I suppose my sarcasm was a bit understated, but it was sarcasm none the less.
[ link to this | view in thread ]
aperson (profile), 14 Jun 2011 @ 5:12pm

i got my first honest laugh of the day from the footnotes.
[ link to this | view in thread ]
Anonymous Coward, 14 Jun 2011 @ 5:32pm

I'm fairly certain that based on that sentence's structure, science:arts::inventors:authors, therefore "Authors" would simply apply to "Arts", not just book writers and programmers. Actually, I'm a bit doubtful that programming code should be copyrightable. And of course "Arts" is a bit subjective... Come to think of it, I guess "Author" is subjective too.

Whatever. Let's just agree that the original "register for 14 years, and you can re-register once for 14 more" system was fine and dandy, and the current "automatically for life and 120 years after the death of the author, until we get it extended yet again" system is insane.
[ link to this | view in thread ]
Etch, 14 Jun 2011 @ 5:53pm

I disagree with ..
I agree with everything you said except for this part:
"First of all, let�s understand that authors meant writers. No heavy metal singer or filmmaker was assumed to be covered under this law. "

Nope. Read it again. Its quite clear that he meant an author or an inventor of any form, whether it be art, science, what-ever
[ link to this | view in thread ]
Gumnos (profile), 14 Jun 2011 @ 7:08pm

Repetative redundancy that repeats itself?

The Disney executive puts away his hypnotist materials, leaves a pile of cash on the table, and leaves

"Disney...hypnotist materials" and "pile of cash"...feeling redundant today?
[ link to this | view in thread ]
Anonymous Coward, 14 Jun 2011 @ 7:26pm

Re: Steamboat Willy paper that was referenced
Now the question is.....who has the balls to exercise these rights?

12. Conclusion

Disney first created Mickey Mouse on a sketch pad while traveling from New York to LA in 1928. Those sketches, which were protected under a common law copyright, were the basis for the Mickey Mouse motion pictures. They also provided the basis for the images printed on the Mickey Mouse Club materials sold to theaters. Disney published its common law protected expression without the proper copyright notice attached to the films and on the club materials. The statute of limitations to rectify that omission has long since elapsed, as has the statute of limitations for Disney to file any infringement claims based on that omission. As a result of its omissions and inaction, Disney forfeited its copyright claims to Mickey Mouse. Mickey has fallen into the public domain where all are free to copy and enjoy him.

(emphasis mine)
[ link to this | view in thread ]
Anonymous Coward, 14 Jun 2011 @ 10:13pm

A nice comment on that link that I think is worth re-posting here. I hope this person doesn't sue me for infringement :)

Writer89 writes

"Couldn�t agree more. WB and the other big players let thousands of great and near-great films from the 20s, 30s, 40s, 50s, and 60s lay around gathering dust for decades, refusing to release them on DVD, but as soon as collectors began making copies of what they assumed were abandoned films available to people at reasonable prices through the Internet, they created the Warner Archive Collection so they could do it themselves, and immediately sued (bypassing the cease and desist letter of warning, which would have done the trick) a number of these suppliers, demanding cash and threatening dire consequences. All anybody wanted was for these films to be available for home viewing (other than on TCM). And of course the manufactured-on-demand copies they are selling contain code to prevent them from being played on a computer or any other device which might be able to copy them! Can you hear Jefferson spinning in his grave?"

http://www.indiewire.com/article/why_piracy_is_good_and_copyright_sucks_an_excerpt_from_s ell_your_own_damn_m/
[ link to this | view in thread ]
Anonymous Coward, 14 Jun 2011 @ 10:15pm

"He gave up the pirate DVD business and started selling weed instead, as there were fewer risks involved."

The laws that protect the rich (the most) carry steeper penalties.
[ link to this | view in thread ]
Any Mouse (profile), 14 Jun 2011 @ 10:44pm

Re:
The point that is made is that copyright notice was not attached to the original material, something that the law required for it to be sufficiently 'protected' under the law. Without that notice, the copyright was invalid, and it was never rectified.

At least that's what I'm gleaning from all of this.
[ link to this | view in thread ]
Greevar (profile), 14 Jun 2011 @ 11:11pm

Re:
Based on the time stamp, you must work in government!
[ link to this | view in thread ]
Jay (profile), 15 Jun 2011 @ 12:24am

Link

The irony abounds. Say Bill, do you think that Lloyd doesn't know about Disney either?
[ link to this | view in thread ]
art guerrilla, 15 Jun 2011 @ 4:06am

Re: Steamboat Willy paper that was referenced
um, actually, the disney legend that walt hisownself 'created' willy/mickey has been debunked: his infinitely more talented partner/employee (don't really know their relationship in early days) ub iwerks is the one who did the development of willy/mickey, and the original animations...

yes, it was walt's company and driving force to find a new character, but he was a bidnessman and visionary, not a master animator/artist like ub iwerks...

ub did most all the actual work on them (presumably, 'work for hire') whilst walt was imagineering a control-freaks empire...

art guerrilla
aka ann archy
eof
[ link to this | view in thread ]
shawnhcorey (profile), 15 Jun 2011 @ 6:00am

"And there�s the irony�the entire Hollywood studio system was based on evading patent law, yet now they are the strictest enforcers!"

You should view Cory Doctorow's "Every Pirate Wants to Be an Admiral"

http://craphound.com/?p=3510
[ link to this | view in thread ]
Jason, 15 Jun 2011 @ 7:51am

Re:
They totally posted a notice on the beach, dude.
[ link to this | view in thread ]
PaulT (profile), 15 Jun 2011 @ 8:04am

Re:
" what it makes me think is that the printing press had not yet been invented at that time"

So, the only way to copy a book is with a printing press? Or are you saying that the act known as copyright infringement is only relevant if it takes place on a mass scale?

Besides if Plato, for example, could have a book written then his contemporaries could easily "steal" those ideas by writing a similar book. Why do you think that Plato didn't see the need to "protect" his works like later authors?
[ link to this | view in thread ]
txpatriot, 15 Jun 2011 @ 8:54am

How stupid is this country?
@Lloyd: Jefferson "compromised" and "included" copyright in the Constitution? Jefferson wasn't even at the Constitutional Convention; he was in France at the time. He had little to do with its writing.

I don't know which is worse: the fact that you included this erroneous nugget, or that 27 commenters missed it and chose to focus on Mickey Mouse instead (SMH) . . .
[ link to this | view in thread ]
Anonymous Coward, 15 Jun 2011 @ 9:34am

Re: I disagree with ..
You hit probably the key point of view in this piece, which shows that the author is intentionally trying to misunderstand the laws in order to make his point.

You got it right. When copyright came about, there were no heavy metal singers or film makers. There was also no internet. By extending his logic, copyright would only cover things created using the technology of the day the law was written, and would not apply in any modern circumstance whatsoever or to any modern technology. That just seems silly, doesn't it?

With such a rather easily discredited basis for much of his point of view, it's pretty easy to imagine that most of his other points depend on either excluding things that don't agree with his view, or purposely ignoring contrary results.
[ link to this | view in thread ]
Nick Dynice (profile), 15 Jun 2011 @ 10:01am

In fact, while Edison was shooting his films in New Jersey, some bright folks had the idea to get out of New Jersey and New York and head to California to make their movies. It wasn�t because they loved the beach; it was because they wanted to be farther away from Edison so he would have a harder time enforcing his patents.

Two of those "bright folks" were bothers. The Warner Brothers. I thought that was an important point that was missed.
[ link to this | view in thread ]
nateW24 (profile), 15 Jun 2011 @ 11:08am

This is a good read. I've been looking up Lloyd's books ever since I caught some Troma movies on Comcast.
[ link to this | view in thread ]
doughless (profile), 15 Jun 2011 @ 11:26am

One thing I've never understood is how anyone, especially the Supreme Court, can think that a copyright that effectively lasts longer than the average human lifespan is even remotely for a "limited time".

I know my idea is hardly original (especially among the Techdirt community), but I still feel like I need to say it. Any works that are released in my lifetime absolutely do not have a limited term as far as I'm concerned, since they will never enter the public domain until I am dead.

Actually, I've changed my mind, and when evil raporists are found guilty of copyright infringement, I think judges should start sentencing them to prison for limited terms. Life plus 70 sounds pretty good to me.
[ link to this | view in thread ]
taggart, 15 Jun 2011 @ 12:52pm

So, forgive me in advance for being ignorant to a whole stew of legislation and history of law-making. I don�t know a whole lot about copyright laws, and, being a student filmmaker, I haven�t had to concern myself much with the legality of my work.

However, that being said, what seems like the biggest issue to me (and what Lloyd was trying to allude to in his article) is the copyrighting of IDEAS. It�s fine and dandy to want to make money from a film�we all want at least enough money to live, and most of us want more than that. But it seems to me that there could easily be some sort of royalty laws or legislation that charges people who use the ideas/aesthetics/characters of an �author�s� work�thereby providing filmmakers/writers/programmers/etc. with a livelihood, but also providing the public with the rights to their ideas.

The biggest issue I see raised in this article is the idea of �authorship� in an increasingly globalized, collaborative age. Most projects of any sort these days are the work of 10s or 100s or 1000s of people from all over the globe. Ideas, legally attained or not, are everywhere thanks to the internet. It�s hard to truly say that one person or even one company completely �owns� the rights to an idea.

Kaufman touches on this a little bit here when he discuss some of the issues surrounding net neutrality: http://www.g4tv.com/videos/53711/fathers-day-with-tromas-lloyd-kaufman/
[ link to this | view in thread ]
Derek Kerton (profile), 15 Jun 2011 @ 2:33pm

Re: Repetative redundancy that repeats itself?
You know, I get your joke, but there is a serious response to what you've said. There IS more than a bag of cash used to influence legislators.

Sure, they like the cash, campaign contributions, corporate support, wine and dining, etc. that is thrown at them by industry. And that definitely has an influence on policy.

However, the 'hypnotist materials' are also extensively used. This is the part of the gambit where our politicians TRULY BELIEVE that 'supporting industry' means supporting the big corps. That 'supporting the music industry' means supporting recording studios. They truly believe that innovation=patents. They truly believe the bogus research reports that industry presents to them. The believe they are protecting jobs by extending IP rights duration.

It would be nice if it were just a matter of bribery. The dis-information is harder to combat. That's because passion and "they took our jobs" is easy to understand and economics is not.
[ link to this | view in thread ]
UriGagarin (profile), 15 Jun 2011 @ 3:12pm

umm
That�s exactly what happened when Edison didn�t secure an international patent for his early film projector! Everyone in Europe, including those smarter and more passionate than Edison, had the opportunity to improve on his design and create the film industry that we know and love today!

Except that :
1 Europe isn't a country
2 various others on this side of the pond had already done much of the ground work and had patents on it .
see for example
http://en.wikipedia.org/wiki/William_Friese-Greene

Classic case of parallel invention .
[ link to this | view in thread ]
meatball, 15 Jun 2011 @ 4:12pm

Re: Re: Press
Ideas were copied and "infringed" on a large scale. The Library of Alexandria. (~150 years after Socrates)

The real reason it burnt down? Skynet won't be made to defend humanity, it will be made to defend copyright. As we speak there are terminators roaming throughout history, destroying libraries, getting law degrees, causing the dark ages.
[ link to this | view in thread ]
Maxx Eastick, 16 Jun 2011 @ 3:50am

I thought copyright was the right to copy
I thought copyright came about after the printing press and big publishing houses where printing and selling contemporary written works without paying anything to the original author. So the "right to copy" was established so these publishers would have to pay the author the right to make a copy of their work.
Now the publishers still make huge profits while authors (written, music, film, picture) have to sell merch, and tour the country to promote their works so they can eat.
[ link to this | view in thread ]
GLev (profile), 16 Jun 2011 @ 12:21pm

Re: umm
I don't see where anyone implied that Europe is a country...
[ link to this | view in thread ]
nateW24 (profile), 21 Jun 2011 @ 11:44am

He makes some god points, while some can be argued. I'm see him at the Rerun theater in Brooklyn for free tomorrow. What could be better than a screening of Mother's Day and a Q&A with this guy?
[ link to this | view in thread ]
Trojan, 12 Sep 2011 @ 5:53pm

Mickey Mouse and Minnie Mouse
When ever the 1928 Mickey Mouse becomes public domain Disney is the only that can use Mickey Mouse Public Domain copyright because Mickey Mouse has Secondary meaning and whenever the orginal Minnie Mouse becomes public domain Disney is the only that can use Minnie Mouse public domain character.

It is too bad that the Congress and U.S. Senator did not realize this.
[ link to this | view in thread ]