ecause of my NDAs I cannot speak of the work I did or the process we faced, but it's safe to say my 20+ months on the Studio's executive steering committee revealed, or at least confirmed what you might assume about the old media model.
These guys are, for the most part, old school pick and pack, supply-chain people suddenly thrown into a digital world and with some exceptions, extremely entitled and entrenched and unwilling to learn new things. Harsh? No actually not. The fact we were eventually able to develop amazingly innovative and cutting-edge digital distribution technologies and sustainable business models was really due to the genius and digital savviness of the CEO of Disney, Bob Iger, without his mandates, the Studio never would have attempted to evolve on their own.
While I might sound bitter or disappointed in my relationship, the truth is I love Disney and I want Disney to succeed in every way, every way but one perhaps.
Disney recently tried to trademark the Dia de Los Muertos, to coincide with a new Pixar movie release. When I said the culture of Disney was entitled, this is exactly what I mean. Disney went too far in trying to own the rights to a traditional indigenous Mexican holiday, but this is not the first or most outrageous copyright grab by the predatory mouse.
Copyright, copyleft and the copyfight, a brief background.
The raw act of creation applies to the creation of tools (technology and social systems) as much as it does to the use of those tools by artists in the act of creating their art. Disruptive change in mass-media culture on the scale we are experiencing not only brings challenges to the existing stakeholders but also introduces new problems unique to its own promise.
While skiing on January 5, 1998, Sonny Bono (pop icon of the Sonny and Cher duo and the Republican congressman of California’s 44th District) smashed head first into a tree and died. Of his many accomplishments, the 1998 Sonny Bono Copyright Term Extension Act (CTEA) might perhaps be his most-enduring contribution—ensuring that “The Beat Goes On” will go on forever. The CTEA law, also known disparagingly as the Mickey Mouse Protection Act, effectively froze the advancement date of public-domain content in the United States for works covered under the fixed-term copyright rules set forth in the Copyright Act of 1976. One can only guess at Bono’s motivation; perhaps he’d seen one too many Cher impersonators murdering “I Got You Babe” and just had to do something about it.
In 2012, the Republican Study Committee published a policy report calling for radical changes to the copyright system which was published and then magically unpublished in a remarkable 24hour period. Skeptics have reported seeing fairy dust at the scene of the crime.
Of the various analysis and editorial depictions of CTEA, that of Lawrence Lessig, professor of law at Stanford Law School and founder of the Center for Internet and Society, does the best job of deconstructing CTEA in his 2004 book, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity and, more recently, Remix: Making Art and Commerce Thrive in the Hybrid Economy.
While decidedly a leftist view of copyright law (Copyleft) as it affects miximal expression, Lessig’s work paints a clear and present crisis for all concerned stakeholders, which he made clear in a 2010 article in The New Republic titled For the Lover of Culture, in which he outlines that unlike the fair-use rules of copyright for works of print—specifically, the ability to freely use quotations with attribution—film and electronic media in general have no such understanding.
Lessig shares the chilling account about the documentary Eyes on the Prize, quoting Jon Else, the documentary’s producer and cinematographer, who describes the problem:
"[The series] is no longer available for purchase. It is virtually the only audiovisual purveyor of the history of the civil rights movement in America. What happened was the series was done cheaply and had a terrible fundraising problem. There was barely enough [budget] to purchase a minimum five-year rights on the archive-heavy footage. Each episode in the series is fifty percent archival. And most of the archive shots are derived from commercial sources. The five-year licenses expired and the company that made the film also expired. And now we have a situation where we have this series for which there are no rights licenses. Eyes on the Prize cannot be broadcast on any TV venue anywhere, nor can it be sold. Whatever threadbare copies are available in universities around the country are the only ones that will ever exist. It will cost five hundred thousand dollars to re-up all the rights for this film."
I’m happy to share with you that extraordinary efforts resolved this travesty for Eyes, but thousands of important works remain shelved and rotting due to the imprecise and overly broad wording of corporate-sponsored copyright laws.
Lessig shares his comments from the American University’s (AU’s) Center for Social Media, concluding that “rights clearance costs are high, and have escalated dramatically in the last two decades” and, in effect, “limit the public’s access” to documentary film. The consequence of this errant ecology of creativity is that the vast majority of documentaries from the twentieth century cannot legally be restored or redistributed.
Lessig "They sit on film library shelves, many of them dissolving, since they were produced on nitrate-based film, and most of them forgotten, since no content company or anyone else can do anything with them. In this sense, most of these works have been made orphans by a set of agreements concluded at their birth, which—like lead in gasoline—were introduced without any public recognition of their inevitable toxicity. "
Lessig illustrates an even more chilling account in reaction to the Google Books settlement. As stated under the settlement, Google will pay for rights to distribute up to 20 percent of copyrighted books whose author could not be found, and, beyond 20 percent, the public will pay to access the full book, with the funds given over to the new nonprofit Book Rights Registry.
Lessig extrapolates the legal consequences for such a statute inThe Metering of the Printed Word from his New York Times interview: “The deal constructs a world in which control can be exercised at the level of a page, and maybe even a quote. It is a world in which every bit, every published word, could be licensed.”
The ultimate extreme conclusion is easy to believe. Given the state of aggressive corporate legal departments needing to provide the “P” in their “P&L” (profit and loss) we seeing the same slash-and-burn mentality at work in digital media that has all but destroyed the cultural record of documentaries and other important artifacts.
Years ago, I produced a piece for USA Television. We did an interview near a shopping mall and later discovered that a very low, almost-imperceptible music track could be heard leaking into our interview from the background mall music. We “EQ’d” (equalized, or filtered out) the majority of the nuisance and covered up the balance of the annoying noise with licensed music inserted behind the interview. At the time, USA didn’t have a blanket rights license with ASCAP, so any music used in a production needed to be cleared individually. You guessed it: We were busted.
Copyright law exempts performance “without any purpose of direct or indirect commercial advantage,” yet ASCAP has brought suit against telecoms for mobile-phone ringtones. In the suit ASCAP was not disputing the legality of the sale of the ringtone, as long as the rights holder is compensated. What ASCAP was asserting is that ringtones overheard by passersby constitute a public performance. The Electronic Frontier Foundation’s senior intellectual property attorney, Fred von Lohmann, clarifies the challenge:
"Under this reasoning from ASCAP, it would be a copyright violation for you to play your car radio with the window down!"
The radical interpretation of current copyright law basically delineates that you “must defend” or risk losing control of your copyright. This notion has spawned a huge bureaucracy of legal insanity that risks destroying our cultural record, squashing creativity and creating an environment so hostile to artists that it will ultimately produce a culture lacking referential contexts of any kind. (Don’t quote me or I’ll sue!) (just kidding).
The U.S. Constitution’s stated purpose of “promot[ing] the progress of science and useful arts” by limiting the perpetual protection or lifetime rights to works was challenged by the adoption of CTEA. Opponents saw CTEA as the beginning of a slippery slope toward a perpetual-copyright scheme that nullifies the intended outcome and violates the spirit of the “for limited times” language of the U.S. Constitution, Article I, section 8, clause 8.
Mickey goes to Washington.
Disney is arguably the leader of the corporate copyright police. Disney was about to lose the copyright protection of its golden licensing goose, Mickey Mouse, and set out to lobby Congress to extend the copyright act’s limitations in an effort to protect Mickey from emancipation. Without the CTEA, Mickey Mouse would have entered the public domain in 2004, Pluto was due to expire, in 2006, Goofy in 2008, and Donald Duck in 2009. As a result of CTEA, there will be no Disney copyrighted works due to enter the public domain until 2018 which gives the mouse plenty of time to buy more legislation.
Mickey Mouse’s original film debut in Steamboat Willie (1928) was, in fact, borrowed from works in the public domain. The short was a parody of Buster Keaton’s 1928 Steamboat Bill, Jr. Besides Mickey Mouse, many of Disney’s animated films are based on nineteenth-century public-domain works, including Snow White and the Seven Dwarfs, Pinocchio, Cinderella, Alice in Wonderland, The Hunchback of Norte Dame, and many, many more. The Disney Corporation has built itself on the shoulders of other creative works and harvested enormous benefits from the public domain, the very basis for the U.S. Constitution’s stated purpose of “promot[ing] the progress of science and useful arts” by limiting perpetual copyright. If CTEA had been in effect at the dawn of Disney’s empire, Disney might never have existed.
The cultural expression by artists, writers, musicians, and filmmakers is born of inspiration and not created in a vacuum. Artists require a rich public domain from which they can draw inspirational resources. Just as Disney borrowed great public-domain works to produce a wealth of corporate riches and enrichment for audiences, so too should the next would-be Walt—empowered to build on the shared cultural record influenced by Disney. A story about “the little merman” might steal nothing directly from Disney or its profits, but even the abstract act of referencing cultural icons can lead to shock-and-awe legal nightmares.
Disney, along with other big media interests, pushed lawmakers to extend copyright protection. Motion picture, television, and recording studios and their parent companies contributed $6.5 million to federal candidates and political parties in the 1997–1998 election cycle during the CTEA wars.