When Copyright is Wrong

An independent producer booked CounterPULSE at the end of October for a series of live performances of a version of the infamous musical episode of a long-defunct TV series called “Buffy the Vampire Slayer.” The show has a surprisingly engaged cult-like following, and the fans eagerly spread the news of the upcoming performances, leading all 9 shows to be fully booked with advance reservations.

A few days before the first show was to be staged, a “cease and desist” letter arrived from 20th Century Fox, the Hollywood corporation that owns the copyright to the Buffy show. The actual writer of the show, Joss Whedon, when contacted later, gave his consent to the show going forward, but the corporate owners took a very hard line and refused to negotiate any arrangement by which the show could be staged. This in spite of the months of casting, rehearsal and preparation that had already gone into the upcoming performances.

The situation was in some respects clear-cut and in others quite foggy. It was unambiguous that the producer of the show had never even considered that he might need to acquire legal permission to stage the show. When he learned that he did, he tried to establish some kind of human connection with the corporate lawyers insisting on shutting down the operation, but that effort failed. Confusion arose from the fact that the independent producer is ALSO a board member of CounterPULSE, and in his entreaties to 20th Century Fox emphasized his connection, and the larger role of CounterPULSE in the local arts community as a small theater and incubator space. No one was going to get rich off this show, regardless of how many tickets it sold. A further wrinkle was added by the fact that the CounterPULSE space rental contract did not specify that the producer had obtained all legal rights to the material being staged, thus making CounterPULSE at least partially responsible for the upcoming violation of rights.

None of this makes much sense to a typical Buffy fan, or even to a casual observer of the local arts scene. And why should it? San Francisco is full of venues staging live performances of well known TV shows and other bits and pieces of the cultural air we breathe. We are living in a digital era in which music, writing, photography, television, cinema and art is routinely shared without reference to copyrights or ownership. Moreover, all of our creativity is inherently cooperative and derivative. All of us benefit from the rich environment of creative work in which we’re nurtured and formed, and our creative breakthroughs are always standing on the shoulders of those who came before, as well as our peers.

The corporations that have staked their financial existence on hoarding ownership of our cultural experiences are doing their best to criminalize the myriad behaviors that are normal ways of engaging with the environment in which we live. Graffiti and billboad alterations are considered criminal acts. Copying CDs, DVDs and videotapes is officially illegal even though everyone does it. Downloading music from peer-to-peer networks is a common activity for millions of people every day. Photocopying articles in magazines and chapters in books to share with friends and colleagues is routine.

Copyright has been around since the founding of the United States. Its original purpose was to ensure the free flow of information and ideas, and to provide some protection to creative producers so they could earn a living from their creativity. So-called “founders’ copyright” provided 14 years of protection before creative works entered the public domain, free to be used by anyone for any purpose. Since those long-ago days, copyright law has been extended several times, most recently and most notoriously by a law passed on behalf of the Disney corporation so Mickey Mouse would remain Disney’s exclusive property for an additional 20-some years (the original copyright was due to expire just after the new law took effect). Now copyright extends 75 years from the creation, and can be extended even further beyond the death of the creator.

Copyright has been flipped from being a mechanism to protect writers, musicians and artists to one that consolidates the grip of large corporations over our cultural lives. It’s no secret that capital makes the rules and we play their game. I won’t belabor it here. But we must ask, what should we support as an alternative to the untrammeled power of capital? What would be more fair than the current system? Because our friends who are musicians and writers and artists do need to make a living, and it’s only fair that some legal mechanism should aid them in that pursuit. If we reject any legal system of copyright altogether, that leaves all cultural expressions open to the predatory exploitation of those with the most power and wealth. Individual artists don’t very often benefit from copyright protection, but they certainly don’t have any protection from corporate predation without it. So we need to create a more sensible and responsive copyright regime.

The Creative Commons folks have done just that. They’ve created a series of “in-between” copyright categories that allow producers to make some or all of their work available without permission under specific conditions and for specific purposes. For example, I can make my novel freely available on-line to anyone for noncommercial use, not to be altered from its original, and it must always be attributed to me. Someone else might make a musical composition available for sampling without payment for anyone, as long as they get attribution. And so on.

Corporations like 20th Century Fox are insistent on an ever-lengthening “all rights reserved.” But why should they have rights to a show that has already been cancelled for years, that is in reruns at best? Shouldn’t their right to sell those original shows be the extent of their proper ownership? Once something is put on the air, we’re subject to it whether we want to be or not, sort of like the government or the weather. Shouldn’t we have a right as human beings living in a media-saturated environment to make whatever creative use we want of the endless pabulum coming out of our tubes? If we want to stage a play based on a TV show, all the work of putting it together is new creative work, minus the original script and songs. But if those originals are adapted anew, and reworked for the new local production, why should some brain-dead corporate behemoth be able to claim ownershp over that fresh burst of creative expression?

In the Buffy-CounterPULSE saga, we probably could have avoided corporate action by not using the name and logo of the original show. Then we should have emphasized that we were making a derivative work that in many respects was like the original Buffy episode, but was sufficiently different to make it an original adaptation. If it had been a parody the local production would have been entirely in the clear. But even without parody, I think a live, local performance in a small nonprofit venue should be given carte blanche to go forward.

One of the corporate arguments is that all the actors in the original TV series have rights to be paid whenever the show is shown as a rerun, and that they have further derivative rights to other uses made of the show. But why? I think once something goes over television, it automatically enters an as-yet unrecognized realm of the public domain. Whoever owns the rights to a show can easily go on earning revenue from it by continuing to sell that show to new stations for new showings. But why should they control the ideas embedded in that television show? Why should they be able to prevent other people from making a television show into a live stage performance?

It’s a totally new production. The only people who might have a legitimate claim for recognition and possibly payment would be the original writer(s) of the scripts and music. But their’s should not be an alienable right. Like in Europe, the author should maintain moral rights in perpetuity. And if someone wants to mount a live performance of a tv show or a movie in a nonprofit venue, that should be an unambiguous right.

Following in the wake of all this, we’re going to hold a public conversation on the topic. Hope you can make it if you’re interested. (Our public forum today on “San Francisco as Wildlife Habitat” with Josiah Clark, Jon Christensen and Rebecca Solnit was a great conversation, with about 30 very engaged attendees.)

Copyright and Copywrong” a Free Public Discussion Thursday, December 1st, 7-9pm, CounterPULSE, 1310 Mission at 9th. How has the rampant extension of copyright duration narrowed our creative space? Shouldn’t we oppose the very idea that writers and artists can sell their fundamental rights to their own work? Does our current copyright system really support and protect artists? CounterPULSE invites the public to come and discuss copyright issues, the public domain, and the relationship of creativity to a shared but privately owned cultural environment.