I am sure people know that I’m not a fan of the Digital Millennium Copyright Act. While I do consider copyright, as an institution, to have a pernicious impact on the arts I’m also painfully aware artists have to eat. As a result, I don’t advocate the abolition of copyright outside of the frame of a revolutionary reworking of the arts industry.
However this specific law has the very specific impact of allowing copyright owners to silence online critique of their products via false DMCA strikes. And right now this is being exploited in a very specific way by an artist to do just that.
At issue here specifically is how indie game developer Gilson B. Pontes appears to have been using DMCA takedown notices to remove videos produced by James Stephanie Sterling from YouTube that are critical of Pontes’ skill as a game developer. Sterling does use footage of Pontes’ games within their reviews, but their use of these elements is fully within the bounds of fair use – Sterling is a critic engaging in art criticism. The idea that they should not be able to show the games is as ludicrous as the idea that I might review a book without including quotes or showing the cover.
Game criticism is all too often treated as an armature of games marketing and Sterling is one of the very few independent games industry critics who has resisted that tide. Their work on the social impact of loot boxes, in particular, is incredibly valuable, as a work of criticism, and there is almost nobody else in the field who is doing it. I’d also draw people’s attention to Sterling’s work on the material conditions of labour at AAA games studios. Needless to say, I consider Sterling to be precisely the sort of critic we need more of – fiercely independent, carefully researched, courageous in the face of pressure. We should, as critics, as artists and as audiences, be advocating for protecting important critics like Sterling.
I’ve included a link to Sterling’s Patreon; you’d be doing a solid to an important working critic to kick them a buck-fifty a month. Supporting criticism is supporting the arts.
The internet is being silly again and it’s kind of Dr. Seuss’ fault.
I promise this is going somewhere that isn’t tedious internet culture war silliness but we need to set the stage: two days ago, the business that administers Dr. Seuss’ estate announced that they would be withdrawing six books from future reprints. This led to conservatives across the internet, who had never previously expressed any interest in Seuss, or in children’s literature at all, to pull a collective wobbler that Seuss was being cancelled.
The books in question featured racially stereotyping images of Inuit, Chinese people, Japanese people and Black people. In one case, the racial stereotyping of Chinese people was so archaic that some of its coding (a Qing dynasty queue and clothes that might have been appropriate to a late 18th century official) might seem entirely foreign to a modern reader – while still managing to have the cringiness associated with an image that considers a person eating with chopsticks a wild and strange sight when on a daily walk. The images of Japanese people that Seuss had drawn as a propagandist during the second world war went far beyond merely being cringey or orientalist, explicitly calling Japanese Americans the fifth column. The remainder fell between these two poles of insensitivity.
The business made the business decision that they could continue profiting from Seuss best by burying these images that are so inappropriate in 21st century culture. And when it became clear to conservatives that this was not censorship but rather a business decision, this led some of them to have the epiphany that, perhaps, copyright is a problem. After all, if businesses believe it’s to the best interest of their bottom line to bury an historical artwork, copyright prevents anybody else from legally, “rescuing,” said racist art.
And this has sparked yet another round of debate regarding copyright between children who call artist-ownership of art, “idea landlordism,” and adult artists who should know better than to argue with children online. Two things are true: idea landlordism is an incredibly silly and surface understanding of the problems of copyright, and copyright still operates as the enclosing of a commons in which major media companies operate on a rentier business model. There are two principal problems with this idea landlordism description of copyright. The first is that the people making the claims fail to generate a cohesive material analysis of the power structures that underlie the ownership of art. The second is that they don’t go anywhere near far enough.
Artist, class and wasteful action
Artists, individual working artists, present a quandry for a basic class analysis because they seem, on the surface, to resemble petit bourgeoisie. Often an artist owns the means of their artistic production. I have a studio space, an easel I built, brushes I own, paints I bought, a computer and writing software which is mine to use. The petite bourgeoisie was once principally composed of individual skilled artisans: shoe makers, tailors, jewelers and such. They were people who earned their living by the means of production which they owned but who were generally too small-scale to exploit the labour of many workers like the big boys of the bourgeois proper. It’s also somewhat true that the principal body of the petit bourgeoisie in the modern era is the renter class. It’s small-scale landlords who derive a modest income off renting, buying and selling a small number of buildings. As such, tying the idea of rent seeking to petite bourgeoisie and from them to copyright holders is attractive.
However this disregards what the production of art is, and what is produced with regard to art within capitalism.
Principally art is waste.
You are taking the labour of the people who ground the pigment; who wove the canvas; who cut the wood; who mined copper, smelted it and shaped it into nails; who shaped the frame, stretched the canvas, jessoed it and packaged it, who operated the machines that produced the brushes, who stocked the shelves at the art store, and you are expending it.
The end product, a work of art, has no use value. Its value, in being aesthetic, is only in the pleasure we derive from it. Furthermore there is a significant break between the labour of the people who produce the material inputs to art and the labour of the artist. The value of art has no correlation to the material value of the labour and materials of the inputs. Nor does the value of art have a direct correlation to the labour of the artist. Rather, the labour of all these people is wasted. The act of artistic creation destroys the inputs as clearly when they are tubes of paint as when they are previous artistic iterations. An artist spends more or less time on a work of art in order to produce that which is pleasing to themselves. Later an audience will decide if the art is pleasing to them too. This is its value. We cannot claim the training of the artist is the source of value because no specific unit of training can be apportioned against a specific artwork. We cannot claim their labour in making the art is the source because a photograph produced in 1/32 of a second might very well be as artistically valid as a sculpture that takes a decade to complete.
Capitalism cannot handle waste well. It likes to forget waste. And so capital assigns exchange value to art. It says that this Picasso is more valuable than this child’s finger-painting because the market will bear $95 million as the purchase price of Dora Maar Au Chat but nobody wants to buy the child’s painting.
However to a parent, perhaps somebody who is something of a philistine, their own child’s painting may have far more value than a painting by yet another dead French dude.
“My kid could do that,” they might scoff when what they mean to say is, “I enjoy the art my kid does more.” The paint used on the Picasso and that of the child are both equally wasted. No further use can be made of it except in the receipt of subjective pleasure.
And so the means of production of art within capital isn’t about producing the objet d’art but rather about its marketing. And this is a place in which the individual artist is entirely alienated. If you self-publish you aren’t likely doing so by typesetting, printing and binding. You’re selling it on Kindle Unlimited – owned and operated by Amazon. If you write a cartoon you aren’t hand-drawing every cell and projecting it in your back-yard. You’re showing it on Netflix or Disney+. The individual artist is a proletarian. Their labour is exploited to make the actual rentiers of the artistic world – the marketers, distributors and copyright-buyers – wealthy even though these Bob Chapeks and Jeff Bezoses create nothing artistic in the slightest.
The real copyright rentiers
In fact, it is in the refusal to waste anything that might still hold exchange value that entities like Disney become antagonistic to the arts. Copyright, although conceived as a form of labour protection for working artists, has been reclaimed by capital as a tool by which these big corporations can extract rent. But a proper class analysis should demonstrate that the problem with copyright isn’t that an individual author can exercise some measure of control over the exchange of their work, it arises when the very wealthy are able to buy work rights the same way that one buys a house.
This commodification in turn causes real harm to real working artists. And not just from Disney claiming it bought the right to publish a work but not the contractual obligation to pay the artist. This is a widespread pattern of abuse. For instance, Nintendo is notorious for disregarding fair-use provisions in its prosecution of copyright matters.
Copyright, in its current form has metastasized from a worker-protection to yet another tool of capitalist exploitation. However, as is often the case when capital territorializes something, the occupation is incomplete. Foucault liked to point out that the arising of a new episteme didn’t obliterate the one that came before it. The systems of power and knowledge that underpinned one period remained, with the new systems superimposed on top. The end of the power of sovereign kings and their retributive justice gave way to the juridicial disciplinary state. But that didn’t eliminate retribution from justice. Likewise many working writers depend on royalties and other down-stream consequences of copyright to eat even though copyright is principally a tool of their exploitation.
Copyright is part of the superstructure of the arts. But it isn’t sufficiently modular to be plucked out of the rest of that superstructure. Furthermore, while it is critical that artists create an artistic superstructure that is built to suit the demands of art, the root of the exploitation endemic in the arts is a matter of the cultural base from which the superstructure arises. To put it bluntly, we cannot abolish copyright without ensuring that artists can continue eating, living indoors, and creating art. Certainly a strong case can be made for strictly limiting copyright and doing away with pernicious laws like DCMA. And I do think that it is best to do away with copyright, but this must be in the context of a revolutionary transformation of society and its relationship to art.
And finally, those children who contend against copyright absent class analysis or with a flawed and incomplete one must still contend with the question of moral right. Simply put, the failure to respect the right of an artist to say, “this is my creation,” is one that copyright protects against poorly, but it remains one of the few protections that exists. We must make sure whatever wondrous new world we create in which copyright is not necessary still protects the moral right of an artist to be the artist of this work. All art is iterative but all art contains differences from what comes before into which an artist encodes meaning. And in fact the true value of the art is found here. Artists need to eat. Artists also need to be able to command that this is their art.
I said before that putting a work of art into the world is a gamble the artist makes: that the artwork may face a cruel reception. However the other side of this gamble, that an artist must allow themselves to be open to this violence, is that we affirm the art is theirs.
I sincerely believe the task of dismantling capitalism and replacing it with something different is an artistic task, the Body Without Organs, too, is the moral right of artists. And I also believe there is an urgency to this task – I don’t want to put off the abolition of copyright with a calm, “yes but not today.” However I do want every person who advocates against copyright to understand clearly and with intent what they are advocating to undertake. Nothing short of a revolutionary transformation of society will allow for the conditions of an abolition of copyright. We must raze the entire superstructure of art to the ground and then keep going, cutting at the roots of the art world with an axe, if we wish to do away with copyright. And then we must create something more pleasing from its ruins.
We had an interesting case example about the boundaries of fanfiction today when the popular online cartoonist, Adam Ellis, claimed the short film Keratin plagiarized his own work. I think this is a fascinating example of the way in which the delineation of ownership sets the boundaries of fanfiction, because on one hand, it’s trivially evident that Keratin is a fan work.
James Andrew MacKenzie Wilson does not appear to have any prior film credits to his name, while the other person credited with the Keratin short (Andrew Butler) has only a few prior credits. This short, which has been working the festival circuit, seemed like an opportunity for two early-career directors to demonstrate what they can do with a camera and with actors.
But of course they didn’t pay for their storyboard. Instead they chose a comic they were clearly fond of and used it as their storyboard. As I talked about previously, fanfiction is the act of creating art in dialog with and derivative art for which the artist cannot claim ownership. What problematizes this here is that the artists behind the film did, in fact, claim ownership of Keratin though not of the Ellis storyboard that obviously informed it.
Now I’m seeing a lot of the same people who were rushing to the defense of fanfiction during the recent discourse on the topic, expressing outrage at the uncredited use of Ellis’ art as a storyboard. And I get it, because these two men are building prestige, and possibly making money, off the back of Ellis’ creative labour. Their work is clearly derivative.
However derivation is a natural component of the artistic process. We might as well complain that Goya’s work was derivative of Reubens.
In both Goya’s depiction of Saturn devouring his son and that of Reubens, the monstrous father looms above his child-prey in the panel. Both are cloaked in darkness, the ground beneath their feet indistinct, the sky a void. Saturn, in both instances, show a loathsome muscular physicality, but in both cases his genitals are concealed, abstracting Saturn from the generative aspect of the father. He is the father as unmaker, as the terrible presence that overcomes the child and leaves him naked and consumed.
Our only principal difference is a change in the treatment of the son. For Reubens, the son is a subject, his abjection and terror are a shocking central motif of the frame. For Goya the son is an object, reduced to just so much meat to be consumed.
In many art history classes, Goya’s painting is a central piece of study. Our study of Reubens is more likely to focus on his depiction of the female form. Goya is the master of the image of the devouring father in his darkness. Reubens the master of the fecund and generative. This could be seen as appropriate considering the way Goya consumes Reubens’ motifs in the creation of his monstrous masterpiece.
And through this process of derivation, through this act of grazing upon the intellectual commons sowed by Reubens, Goya created a truly great work of art. And at this point I’ll pause to describe my criterion for calling Goya’s work great; it certainly doesn’t lie in the technical excellence of the work. In every technical manner, Reubens is the superior painter, the greater craftsman.
But Goya’s work, the manic wildness in the eyes of Saturn, the way that his divine child has been reduced to a cadaver, an object devoid of hands or of a head, of any of the markers of subjectivity we expect, creates, in the depiction of Saturn, that which would not be but for the art. How could we come to understand Saturn in the way we do through Goya’s art if we did not see Goya’s painting?
So we can do away with the idea that a work of art being derivative invalidates it as a work of art. But there is a question of boundaries here beyond the question of ownership. And that is this: is a storyboard part of a film or is a film a work of art derived from a storyboard, a distinct artistic moment?
I found a page recently that contains several samples of storyboards from famous films. I want to look at one specific example from it here for a moment.
Even in this very limited set, we can see both how the storyboard realized the vision of the film but also how it differed from it. The title of the film in the opening crawl was changed, the text became flat against a star field rather than the three-dimensional objects of the first panel. The design of C3P0 changed, became more mechanical and obviously artificial between storyboard and film. It’s evident that the storyboard is art. And it is evident that the storyboard informs the art of the film; but is the storyboard a being-in-itself or is it simply one of the faces Star Wars presents us? If it is, in fact, a part of Star Wars and not an independent artwork, how do we address the changes that occur in the process of derivation?
But of course, it was never entirely about the independence of the art so much as it was about the ownership of the art. So by the same token, who has the moral right to Star Wars: George Lucas or Joe Johnson and Alex Tavoularis, who drew the storyboards?
And furthermore, does the fact that the storyboards to Star Wars are sold by a book, an object separate from the movie, have any impact on the extent to which the storyboard is a being-in-itself rather than a being-for-another? Should we consider then the author of the storyboard to be Lucasfilm LTD? Is the company then an independent being? And if so did it die when it was consumed by Disney? How, aside from the artificiality of ownership contract can we assign the right to claim Star Wars as a work-that-is-theirs to Disney and not to Tavoluaris?
Who owns an original? Who owns a derivative? Where do those boundaries lie? I don’t suspect that any of these questions will be answered today. I am frustrated that ownership must so often intrude upon art. It’s trivially obvious that derivation and transformation play a role in the creation of art: derivation as transformation is one of the principal tools of artistic endeavor, and as I discussed in a previous essay, transformation is first a process of unmaking. If the original object of artistic inspiration is unmade in the process of transformation, any derivation is to be considered a new thing: the phoenix arising from the ashes of the death of the original work. But capital doesn’t recognize these patterns of creation and destruction. Instead it recognizes only the contract and the right to own. Capital wants to hold everything in stasis.
Ultimately this is a dispute over three questions in the realm of the world we live in, the world of capital’s boundaries. The first is legal. Is Keratin sufficiently transformative to survive litigation through the mechanism of fair use? I am not a lawyer and must carefully state that this is not legal advice, but my instinct is that, yes, it is transformative. It is a work in an entirely different medium. The distance between the comic and the film is far vaster than that between Reubens and Goya.
The second question: does Ellis have a moral right to the work? This one I am uncertain of for the same reason I question who holds the moral right to Star Wars.
The third question: should Ellis be paid? This is, of course, distinct from the legal question of must Ellis be paid. And this is one where a fair moral argument could be held in either direction. However a word of caution I’d advise commentariat on here: please consider the extent to which this situation differs from Twilight and Thirty Shades of Grey. In each case, one artist took the work of another and unmade it in a transformative act into the ground for new art. In each case, the derivation is clear. If not for Stephanie Meyer, there would be no E.L. James.
If you feel E.L. James had no ethical requirement to pay Stephanie Meyers for her transformative-derivative work, you should probably err likewise here, notwithstanding Ellis’ popularity. And meanwhile, perhaps we should reserve or outrage for an economic system that pits artists against themselves and their own artistic impulses in the name of carefully delineated boundaries of ownership.
The discourse of genre authors, almost perennially, falls to the validity of fanfiction as an artistic category. This debate is never, of course, resolved and it flares up again each time some detractor of the category has their voice amplified sufficiently for those who see themselves as friends of the category to feel threatened.
Considering the sensitivity of artists, this does not generally require much in the way of a threat.
Fanfiction, as a category, exists because artists need to find ways of circumventing the barriers put up by capitalism. The idea of copyright is a modern, and capitalist, one. The first copyright law was formed in England in the early 1700s.
This pernicious concept, that ideas could be made commodities to be bought and sold, rather than representing the intellectual commons upon which creation occurred, allows for parties, individuals and companies, to claim ownership of works of fiction, of characters and situations. Only fiction doesn’t work that way. And it’s good that it doesn’t.
The only reason we have a record of most of Shakespeare’s plays is because some theatre nerds with fast fingers would come to his plays, take notes on the script and then sell copies for a side hustle.
Art, including fiction, is iterative. It’s a form of communication and as such it can’t help but be iterative; an answer contains within it the premise of the question. Copying, mutating and iterating are essential creative tools, and they’re tools that are increasingly restricted as the bounds of copyright tighten, terms lengthen, and laws like DMCA move power toward those who want to enclose the creative commons. As a result these components of fiction become walled off.
That said, the dichotomy exists in the minds of people trapped within the bounds of what Mark Fisher called Capitalist Realism. And since it exists, it’s necessary for us to grapple with its contours.
It’s fine if you want to iterate based off work so old there’s no clear thread of ownership; but if you want to engage in communication with living artists, you must pay for the privilege, or else you must create fic. Fanfiction is an artificial category. Literally no writer is not also a creator of fanfiction. We can’t help but respond to what we read. It is in the nature of art. What separates “fanfiction” from “original” fiction is only whether one can claim ownership over the fiction in order to sell it. This is a useless distinction for artists to argue over.
Why do you care whether another artist wants to sell work or enjoy creative expression as an amateur? The categories of professional and amateur are, in themselves, problematic enough without assessing each work of art an artist creates along the axis of marketability.
This is, of course, the secondary reason that so many “fanfiction” writers who “file off the serial numbers” are reviled. The first is because they’re frequently women as a result of complex social movements. But there’s a sense of fanfiction crossover as having cheated its way into a market it should not own. This is “business ontology,” as Fisher would have put it, creeping into art appreciation.
One of the things that reinforces my communism is the brutal ways capital deforms art. And I get it, artists need to eat. I mean, I maintain a day job explicitly because my art is not profitable. If I could make a living as an author, a critic or a painter I’d do that instead of being a project manager.
My ideological side wants art to be the hard stone that is spit out by capital; for art to be deliberately and aggressively counter to the demands of business ontology. I would make a criminal of every artist. And as such, I am something of a friend to the amateur, including the fanfiction writer. After all, fewer things are more criminal within capitalism than to remove productive action from the bounds of the marketable.
But it’s kind of ridiculous to see professional artists, people who have nomadically sampled the intellectual commons and made their compromises with capital to be allowed the privilege of making art a career, dunking on an artist of no particular notoriety just because they don’t enjoy the fodder in the former part of the commons now within the fanfiction enclosure and loudly say so.
Don’t play the game of categories with them. Find lines of escape instead. The search for new weapons continues.