Hollywood and Fan Creator culture – copyright isn’t as simple as pirates and police

sad youtubeI’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.

Regardless of her talent or the breadth of her audience or the entertainment it gave you, the online series is a violation of that contract, something for which both Melissa Hunter and this Foundation could have been sued heavily. You can thank Melissa Hunter for not having understood the need to contact us so as to obtain a license to protect her show. Now it is too late and she will have to wait to resume her career as the Adult Wednesday Addams© until a year after the film has been released. Hopefully, she realizes that she already has an audience and merely needs to change the title of her show and her appearance.

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.

You probably shouldn’t sue somebody for stealing your idea

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:

  1. 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.
  2. He was selling books on the street in a neighborhood that Joss Whedon has lived in.
  3. 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.
  4. 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.

Copyright Kills Middle-Aged Books

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.