I recently finished up an almost two year long assignment for the Disney Movie Studio helping them to develop programs and strategies to answer the question "How do we not become the music industry." While this was not the happiest place on earth to work, the assignment was fantastic and I threw myself in and did my best to bail out the ship of state and chart a new course into profitable digital waters.

"Disney doesn't have a stick up their ass, they have an entire enchanted forrest" --MKaye Illustraton: icky no.4. dann matthews

"Disney doesn't have a stick up their ass, they have an entire enchanted forrest" --MKaye

Illustraton: icky no.4. dann matthews

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.

A logo representing opposition to the CTEA, using a reference to its "Mickey Mouse Protection Act" pejorative denomination

A logo representing opposition to the CTEA, using a reference to its "Mickey Mouse Protection Act" pejorative denomination

Half the lobbying money came from the four top Hollywood media interests, such as Universal Studios, News Corporation, Time Warner, and Walt Disney. However, Disney took the leading role in pushing for H.R.2589 and S.505—the initial bills of the CTEA as cited in a brilliant doctoral thesis, The Public Domain Trapped by the Mouse: Walt Disney and Ramifications of the Copyright Term Extension Act by Seung-Hwan Mun of the University of Texas. Seung notes Congressional Quarterly reported that one week after an informal meeting with Disney CEO Michael Eisner on June 9, 1988, then–Senate Majority Leader Trent Lott (R-Miss) signed on as a co-sponsor to copyright-extension legislation on the very day Disney’s political action committee made a $1,000 contribution to Lott’s campaign committee (Schecter, 1998; Ota, 1998a).

You might remember Lott as the senator who likened homosexuality to alcoholism, kleptomania, and “sex addiction” in a television interview and later resigned his seat in 2007—a resignation that, according to news sources such as CNN and the New American, “was at least partly due to the Honest Leadership and Open Government Act, which forbids lawmakers from lobbying for two years after leaving office.” Not surprisingly, on January 7, 2008, it was announced that Lott opened a lobbying firm about a block from the White House.

A rich source of lobbying money, Disney led the copyright fight in Congress with contributions totaling nearly $800,000 to political campaigns in the 1997–1998 election cycle, according to the Center for Responsive Politics

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The Mouse Liberation Front.

The Air Pirates were a group of cartoonists who created two issues of an underground comic called Air Pirates Funnies in 1971. The lead features in both issues focused on Walt Disney characters, including Floyd Gottfredson’s Mickey Mouse cartoon strip depicting the Disney characters in various sex acts and drug use. Contributor Ted Richards took on the big bad wolf and the three little pigs in an effort to attack and expose Disney’s seizing of popular American and European folklore. Unsurprisingly, Disney sued. The initial decision by Judge Wollenberg in the California District Court, delivered on July 7, 1972, was in favor of Disney.

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The story is nicely packaged by Bob Levin in his book The Pirates and the Mouse: Disney's War Against the Counterculture. (2003) where he shares that undeterred, Dan O’Neill, founder of Air Pirates Funnies, continued to publish various Disney send-ups, claiming his right to parody and fair use; however, in violation of the temporary restraining order, Disney won another $200,000 preliminary judgment and another restraining order, which O’Neill continued to defy. Finally, in 1978, the Ninth Circuit Court ruled against the Air Pirates three to zero and, a year later, the Supreme Court refused to hear an appeal. 

Soon thereafter, O’Neill recruited assorted artists for membership in a “secret” artists’ organization, the Mouse Liberation Front. Art exhibitions by the Mouse Liberation Front (M.L.F.) were held in New York, Philadelphia, and San Diego. The crescendo to the saga happened when—with the aid of supportive Disney employees—O’Neill delivered The M.L.F. Communiqué #2 in person to the Disney studios, featuring his drawing of Mickey Mouse seated at an animation table smoking a joint. According to an interview with MLF member Bobby London, in Comic-Art.com, he accounts for the final outcome in 1980, weighing the unrecoverable $200,000 in damages and $2,000,000 in legal fees against O’Neill, the Walt Disney Company settled the case or, more accurately, gave up—dropping the contempt charges and promising not to enforce the judgment as long as the Pirates no longer infringed Disney’s copyrights.

In Bob Levin’s book The Pirates and The Mouse: Disney’s War Against the Counterculture, New York University School of Law professor Edward Samuels was quoted as saying, “I was flabbergasted. [Dan O’Neill] told me he had won the case. ‘No, Dan,’ I told him, ‘You lost.’ ‘No, I won.’ ‘No, you lost.’” Apparently, Dan O’Neill’s definition of winning was the fact that he didn’t ever go to jail. A winning outcome by one measure—but, as noted in Levin’s book, many believe “They set parody back twenty years.” 

First published in #74 (May 1967, "The JFK/DISNEY ISSUE") of The Realist under a copyright claim by publisher Paul Krassner, this poster was drawn by artist Wally Wood. 

First published in #74 (May 1967, "The JFK/DISNEY ISSUE") of The Realist under a copyright claim by publisher Paul Krassner, this poster was drawn by artist Wally Wood. 

One final irony; original Air Pirate member Bobby London was quoted in an interview as saying "A friend of mine had told me to try and get a job at the Disney merchandising art department here in New York. And after laughing wholeheartedly at this idea, I decided to give it a try." He got the job and apparently nobody ever mentioned the Air Pirates while he worked there, though in the interview he recalls a rather awkward moment when "...one day the art director, who had become a very good friend of mine, came out and talked to the artists as he customarily would do at the end of the day, and he made some sort of joke about dirty Mickey Mouse comics and the place got really quiet. I didn't look up or move or anything, I just kept working, and it just passed...apparently some people up there at Disney knew and they didn't mind because they got to know me and they got to like me. So, I kept the job."

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The notion "Guns don't kill people, people kill people" might be an allegory for Disney, Inc. vs. the lawyers and myopic leadership therein. In the case of Bobby London, "We become what we hate," or at least at times simply benefit by our enemies. For me, Disney is not inherently evil, Disney is not my enemy, and is in fact a source of endless pleasure. The question is how often and I laughing with them, or laughing at them remains to be seen.

My personal beliefs.

For all of you who are right about now thinking that I’m a radical leftist, I’m actually fairly conservative when it comes to my strong beliefs that artists and copyright holders deserve protections and should be compensated for their work. Where I diverge perhaps is my equally strong belief that parody, quotation with attribution, and editorial fair use—for example, in historical, orphaned documentaries—makes an urgent case for a sane, responsible resolution to the insanity of being arrested for having one’s purchased, authorized, ringtone overheard.

Uploading of untransformed works, such as music, movies, or other literal works, in whole or in part, does indeed do damage to the artist. Even derivative clips significant enough to elude the “quotation with attribution” that are used outside of any material editorial context or presented linearly with no transformative perspective are, in my opinion, fair game for copyright sanctions.

Material on services, such as YouTube, that does however, employ editorial treatments, such as mashups, supercuts, or other creative or editorial processes, that are clearly transformative in nature rarely (if ever) prevents or circumvents commerce to occur for the native original work in question.

Change is needed both to protect intellectual property AND to protect fair-use and parody. Support reform to better target the broad wording of proposed legislations such as the "Stop Online Piracy Act"/"E-PARASITE Act" (SOPA) and "The PROTECT IP Act" (PIPA) and all the rest that will inevitably follow. Make your voice heard.


Additional Sources.

Gaylor, Brett. “RIP!: A Remix Manifesto.” External Sites – NFB. 2008. Web. 22 Apr. 2011. <http://films.nfb.ca/rip-a-remix-manifesto/&gt;.

Levin, Bob. “Dan O’Neill.” Edward Samuels. 2004. Web. 22 Apr. 2011. <http://www.edwardsamuels.com/copyright/about/anecdotes/oneill.html&gt;.

“Liblicense: Definitions of Common Words and Phrases.” Yale University Library. May 2008. Web. 22 Apr. 2011. <http://www.library.yale.edu/~llicense/definiti.shtml&gt;.

“Air Pirates.” Wikipedia, the Free Encyclopedia. 13 Mar. 2011. Web. 22 Apr. 2011. <http://en.wikipedia.org/wiki/Air_Pirates&gt;.

“Mickey Mouse.” Wikipedia, the Free Encyclopedia. 20 Apr. 2011. Web. 22 Apr. 2011. <http://en.wikipedia.org/wiki/Mickey_Mouse#Walt_Disney_Productions_v._Air_Pirates&gt;.

Smith. “Walt Disney: Long Biography.” Walt Disney – Just Disney.com – Your Source For Disney. Web. 22 Apr. 2011. <http://www.justdisney.com/walt_disney/biography/long_bio.html&gt;.

“Steamboat Willie.” Wikipedia, the Free Encyclopedia. 13 Apr. 2011. Web. 22 Apr. 2011. <http://en.wikipedia.org/wiki/Steamboat_Willie&gt;.  


Posted
AuthorRichard Cardran