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.
Moral right
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.
Derivation and transformation bringing about that which would not be but for the art
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.
I’ve always been a fan of the Addams Family, as such it isn’t surprising that I found Melissa Hunter‘s fanseries, “Adult Wednesday Addams” to be absolutely adorable.
So I was sad a few days ago when I found out it had been pulled. Speculation on the internet was that it was brought down because of backlash over the cat-calling episode (which I really wish I could link to because it was absolutely brilliant, sadly, it is now gone).
This does not actually appear to be the case. Rather the issue is an entirely different one, and one which is much more complex than yet another blow in the ongoing culture war would have been.
When I heard about the copyright strike against Adult Wednesday Addams I immediately visited the Tee & Charles Addams Foundation, the rights-holder for the Addams Family, and the organization which had brought the copyright strike against Hunter’s series.
I located the contact information and wrote the following letter to them:
I’ve always been a fan of the Addams Family in pretty much every one of its iterations. And I was a huge fan of the Adult Wednesday Addams webseries, which was funny, intelligent and tonally in keeping with the character. As such, I’m distraught over the news that your foundation has forced its removal from Youtube.
While I understand that you are the copyright holder, and legally you are acting within your rights, I think in this case you are sorely mistaken to have taken this action.
I ask, as a fan, please do not obstruct this wonderful little webseries.
—
sincerely,
Simon McNeil
I didn’t expect any response, but I figured letter writing campaigns have been successful in the past, and the best way for them to be successful is for somebody to start writing letters.
However I was mistaken. A mere four hours after I wrote to the foundation, I received a response from Kevin Miserocchi, the Executive Director of the Tee and Charles Addams Foundation.
Here is what he said to me:
Dear Simon McNeil,
Thank you for your comments concerning Charles Addams and his Family and the suspension of Melissa Hunter’s on line series titled The Adult Wednesday Addams. Perhaps this will help to enlighten you about the situation that has caused this to happen rather than assuming we don’t care. Unfortunately for all involved it is not as simple as you may be thinking it is: The Moneyed Establishment versus The Artist – on the contrary.
We have a contract with MGM to produce a full-length animated feature film of The Addams Family® to look exactly as Charles Addams originally painted them. That contract prohibits anyone from portraying those characters in any media during the life of the contract.
With best regards,
H. Kevin Miserocchi, Executive Director
So what we have is instead what appears to be a pretty awful contract. Apparently, MGM has purchased an exclusive license to the Addams Family in all media. Furthermore, according to Mr. Miserocchi, the foundation is liable for enforcing copyright on behalf of the license holder (MGM) at risk of lawsuit.
That’s all rather odious.
Now I will note that the substantial snark in the last paragraph is not very nice; and comes off a bit disingenuous. If the contract is as strict as Miserocchi describes previously, it wouldn’t have mattered if Hunter had come to the Foundation first, they would have been required to say, “no.” And I rather doubt her webseries could provide sufficient revenue to beat out MGM if it came to a competitive bid. Whatever MGM paid the foundation for this license I’d suggest they invest some of that money into a PR coordinator because there would have been much more diplomatic ways to communicate the message above.
And here’s where things get complicated. Adult Wednesday Addams is a perfect example of a fanseries. It was created by a single person (or a very small team), it has a very limited cast, episodes are based on a straightforward simple premise, riffing on something the creator / star / director / writer obviously loves.
But videos on Youtube are monetized, and the Adult Wednesday Addams videos, based on the number of views they had before being taken down and the average payout for ad-views on Youtube, might have made as much as $13,770.
Now that’s not much money, but it’s not nothing. And it’s money made through the unlicensed use of a copyrighted piece of IP.
There are two main camps on this issue. On one hand, some people will say that copyright in this case is just established industry players cutting out small-scale creatives. Considering it’s posthumous IP (Charles Addams died in 1988) they’d probably argue for some flexibility. And besides, Adult Wednesday Addams wasn’t hurting anybody and certainly wasn’t stealing any bank from MGM.
The other camp would argue that what Hunter did was technically illegal, and that the Foundation acted both within their rights but also within their own best interest pulling the plug.
I come down somewhere in the middle. My personal opinion about copyright terms would, if it were magically converted into law, put the Addams Family in the public domain – just barely (I’m a proponent of lifetime + 20 years). And 13 grand (or less) is really not that much money. And honestly the Adult Wednesday Addams webseries wouldn’t be likely to impact MGM’s revenue in the slightest – the enforcement of such strict contract terms on the foundation by MGM seems a bit overreaching.
On the other hand, the state of the law in the United States is (very loosely speaking) lifetime + 70 years, and Adult Wednesday Addams was a potentially revenue-generating product making use of that IP. And there’s a reason that Fan Fiction writers don’t sell their stories.
So I do see both sides of the argument, and both have some merit. I think, ultimately, our current copyright climate is poorly designed to handle technologies like Youtube, which can automatically take a piece of fan fiction and convert it into a profit-generating product. This isn’t even the first time this year that we’ve seen this problem.
I think we need to reexamine copyright law within the bounds of new technology. Doubling down on penalties through things like the Digital Milennium Copyright Act hasn’t worked; the vast grey area between fan product and professional product demonstrates that clearly. But copyright is also important; as much as I might like creative commons licensing and as much as I might call for a shorter than average copyright period, I’m not against copyright as a concept.
But studios and rights-holders suing or threatening to sue fans for their enthusiasm over IP isn’t cool either.
I don’t think I have an answer for this one guys. But if you do, please let me know.
One of these days I’ll get around to reviewing Haxan (which I really want to write a review about) but it won’t be today sadly, because today somebody named Peter Joseph Gallagher sued Joss Whedon and basically everybody Whedon works with over The Cabin in the Woods.
Now let’s start by making sure to draw some goalposts. I’m an advocate for a robust public domain, I’ve come on record calling for shorter copyright periods before. I’ve also said privately that if anybody ever cared enough about anything I wrote to make fanfic / other stories in the world I built / etc. I wouldn’t likely care as long as they A) were not profiting from my IP and B) gave credit where credit was due.
However I’m not an advocate for unrestricted copyright violation. And this isn’t going to be a screed on the evils of copyright. As far as I’m concerned a content creator has every right to expect that other people won’t start profiting off their work.
Now copyright is a prickly subject, especially when you’re dealing with something so deliberately tropey as Cabin in the Woods (which is in the host of various media that probably, quite legitimately, owes Sam Raimi $10.) So before we descend into an issue as laden with satire / fair use wiggle room and overtly archetypal elements as The Cabin in the Woods let’s examine a much more straightforward example.
The Life of Pi and Max and the Cats
With thanks to Heather Emme for bringing this example to my attention.
In 1981 Moacyr Scliar wrote a novella called Max and the Cats about a boy who finds himself trapped on a lifeboat with a jaguar after his ship sinks.
In 2002 Yann Martel wrote a novel called Life of Pi, about a boy who ends up trapped on a lifeboat with a tiger after his ship sinks. Martel’s book went on to win the Booker Prize. In Life of Pi, Martel thanked Scliar, calling his earlier story the “spark of life,” for the latter.
Martel later said some very douchey comments, claiming not to have read the book and saying, “I didn’t really want to read it. Why put up with the gall? Why put up with a brilliant premise ruined by a lesser writer?”
Scliar and his publisher originally considered pursuing legal action but the authors were eventually able to settle their dispute without intervention from the courts.
There’s SO much going on in this example. We have an author who openly admits the influence of the previous work and then back-pedals in the nastiest way possible when he’s called on it. We have premises that are effectively identical. We have similar executions (lit-fic novella vs lit-fic novel) and in both cases we have widely respected authors. Scliar was one of Brazil’s most respected authors. Martel is widely regarded as a powerful writer (they don’t give away Bookers to just anybody).
And yet…
And yet…
Ultimately this wasn’t settled in the courts. And as much as I think how Martel responded to the initial complaints was awful. Despite Martel’s straight up lie that he read an Updike review of the book (such a review does not exist), despite how similar these stories were in both premise and execution, ultimately what they really shared was an idea: a boy, on a boat, with a predator cat.
And that’s not really what copyright is there to protect. The ability of ideas to cross-pollinate, of Tolkien to be influenced by Wagner who was influenced by Germanic myth, is a fundamentally important one. And yes, it can be abused. No system is immune to abuse. But when we strike out at the fact of literary inspiration and cross-fertilization in the name of copyright protection it is ultimately more harmful to the arts as a whole than not doing so would be.
I’m not saying Yann Martel was justified ripping off a respected Brazilian author and expecting nobody would notice. I’m not saying he was right to double-down by insulting the author when he was caught out. But there’s a difference between doing something worthy of social censure and something worthy of legal censure. Ultimately I think Martel earned scorn, but not a judgment of the courts.
Complicate a Situation: Just add tropes, parody, and Hollywood money
So here’s what we know about Peter Joseph Gallagher’s book:
He self-published a run in 2007 of 2,500 which he claims in his court statement nearly sold out, leading him to print a second run of 5,000 copies.
He was selling books on the street in a neighborhood that Joss Whedon has lived in.
The book describes a group of five highly archetypical horror movie type protagonists going to a cabin in the woods, encountering a weird artifact room (a-la evil dead) and then are attacked by a killer. The twist is that they’re being manipulated into reliving horror movie tropes for the amusement of a viewing audience.
There are other cosmetic similarities described between the book and the film, but they mostly boil down to tropes will be tropey.
So ultimately what this boils down to is Gallagher saying that Whedon used the idea of a trope-aware horror story in which an in-universe audience is secretly controlling the protagonists.
Most of the other elements of the stories boil down to the fact that Whedon deliberately used tropes. Heck, the archetypes that each character represented are carved on giant walls below the secret base. There are conversations in the book about the role that the characters, as archetypal avatars fulfill in stories. Whedon et. al weren’t going for “original idea” so much as “deconstruction of very well-worn ideas.”
I haven’t read Gallagher’s book. And since copies of it on Amazon are currently selling at over $1000 a copy thanks to opportunistic bookjackers (and the one and only copy at the Barnes and Noble website is going for almost $90) I’m not going to read his book. However, even if we assume that he was also doing a deliberately self-aware deconstruction of the horror genre based on an examination of well-worn ideas, that still doesn’t make this copyright violation. Because you can’t copyright a concept. And that’s all that this is, a concept.
But there’s more. Because Whedon’s work is largely considered a satire. And fair use gives extra leniency to works of satire and parody to play fast and loose with copyright. So even if Whedon was lampooning Gallagher rather than Raimi he’d still have a strong defense for these alleged violations.
What we have here is unfortunately a common dispute: person has idea, writes book, makes no money. Later, somebody in Hollywood has similar idea. Writes script. Makes movie. Makes much money. Book writer says, “but I was first,” and sues for a chunk of the money for “their” idea. Except you can’t copyright an idea. That’s why Sophia Stewart will probably never get any money from the Wachowskis.
And unlike in the case between Scliar and Martel, the execution between Gallagher and Whedon is vastly different. Gallagher framed his story, according to the reports I’ve read, around issues surrounding reality television and the ways in which reality TV producers deploy fiction tropes against unscripted participants to create conflict and ratings. Whedon deconstructed the genre by suggesting a shadowy cabal trying to keep down a world-ending menace by committing lesser evils to keep it placated. In one execution, entertainment is evil. In the other, entertainment placates evil. These are different riffs on theme.
And of course, one is a book, the other a film and they have vastly diverging plots, trope use notwithstanding.
I imagine it can be very frustrating to see a product succeed when it’s so similar to something you worked on in relative obscurity. However, even when there is a very clear link between two very similar pieces of media, resolving out of court may be the better option. When all the two stories share is the kernel of an idea, it’s not theft. There’s an old adage, I think I read it in Writer magazine back in the day: Ideas are cheap. And they are. Artists, for the most part, get ideas like most people get cups of coffee. Sometimes an idea sticks, and you do something noteworthy with it. Other times it doesn’t.
If two people happen to have the same idea it might be because one inspired the other, in which case they should own up to that (I’ve never hidden the influence of Jin Yong on my work) in other cases it might just be random chance. Regardless, suing over an idea probably isn’t the best way to handle it.
Yesterday the Atlantic ran an article called “The Hole in Our Collective Memory” about the impact of copyright on middle-aged books. In short it’s not good. Publishers are hesitant to put up books for sale a few years after they come out and the sales drop off rapidly until you get to public domain, at which point they spike again big-time.
But, of course, changes to copyright law have been steadily expanding the period of time before a creative work enters the public domain.
Extended copyrights do not benefit artists. They benefit the occasional estate holder and they benefit large corporations who depend on franchise IP for continued profit.
We need to reopen the copyright debate – but not with a concentration on tightening restrictions on fair use, nor on smacking down those evil pirates.
No, we need to reopen debates like when work should enter the public domain. I tend toward the “no more than 20 years” camp. And I don’t mean 20 years from the death of the artist, I mean 20 years from date of publication / initial distribution.
20 years is plenty of time to make money from one work of art. After all, do we all aspire to have exactly one book in us? What do you think about copyright? Let me know in the comments.
*EDIT NOTE*
I have re-examined my position since this article was posted and now lean more toward life+20 years than 20 years full stop. Sometimes we need to admit when we’re wrong and I think I was when I wrote this.
One of these days I’ll get around to reviewing Haxan (which I really want to write a review about) but it won’t be today sadly, because today somebody named Peter Joseph Gallagher 
Simon McNeil 