Virginia Postrel makes some good arguments against the current mess of copyright law, but both she and most others neglect what I believe to be a primary driver for major corporations seeking ever broader copyright protection: franchises.
Until we address the need of corporations to protect franchise in which they are still creating new works, we won’t make any progress on copyright law.
In mass entertainment, a franchise is a connected series or group of works sharing common characters, plots etc produced over relatively long span of time. Franchise characters or settings become recognizable brands in their own right. Recurrent characters like Sherlock Holmes became franchises long before the term was coined. In the modern era, Star Wars, Star Trek and various Disney properties are examples of major franchises. Star Wars and Star Trek have produced a vast number of secondary works from novels to games, not to mention the toys, T-shirts and, according to some, religions. Disney has been in the franchise business since the end of WWII. Many credit Walt Disney for creating the artistic franchise business model in the first place.
Traditional copyright law predated the evolution of the franchise and instead assumed that copyright protected discrete works e.g. a single short story, novel, song etc made by a single artist. Traditional copyright law didn’t consider that the ownership of the copyright might be an immortal collective in form of a corporation or a family, nor that collective owners would keep producing new material based on the original. Under traditional copyright law, once a story’s copyright expired, so did all the characters, settings, plots, images etc that made up the story. That’s why anyone can remake the “A Christmas Carol” and sell it under that name, but they can’t make and sell their own version of Star Wars.
What makes sense for a one shot work becomes a legal, economic and moral nightmare for a franchise. The canonical example of this problem would be Mickey Mouse. Good ‘ole Mickey first appeared in 1928 as a character in “Steam Boat Willy“. According to traditional copyright law, the character of Mickey Mouse himself, and not just the discrete short “Steam Boat Willy” would have become public domain no later than 1984. After that, anyone could make and sell knock off products of Mickey Mouse as he appeared at any stage of his evolution right up to the present day!
Why does it make economic or moral sense to allow non-creative vultures to swoop in and make money off the Mickey Mouse character and brand, even while the collective owner, the Disney company, continues to generate new work? What is the functional, practical, legal and moral differences between violating the copyright of a solitary artists for a new work and doing so for a collective that is also generating new work based on old works? In either case, new creation is stymied.
It’s not just Disney and other creators that could get ripped off. Disney has used their copyright to protect the brand integrity of it’s characters so that customers, mostly parents buying for children, pretty much know what they are getting a child safe product when they buy a Disney product. If Mickey Mouse and all the other characters enter the public domain, customer’s picking up a “Mickey Mouse” movie might end up with anything, even porn.
Reverting to traditional copyright makes moral and practical sense in the context of a small one shot work like a Robert Frost’s poem, because the copyright is supposed to reward the creation of new works. Frost was never going to spend the next thirty years expounding upon “Stopping by Woods on a Snowy Evening,” so nobody is harmed when work slips into the public domain.
Walt Disney, his heirs and the Disney company itself, however, have spent the last 84 years cranking out new Mickey Mouse stories and products of all kinds. Mickey Mouse is one of the most recognizable characters and a brand himself of great value owing entirely to the vast body work that Disney generated over the decades. Since the retention of the copyright by Disney has led to the generation of new works, the expanded modern copyright accomplishes the primary intent of traditional copyright law in the isolated case of franchises.
No doubt some of the impetus for expansive and functionally permanent copyright is driven by the desire of many to cash in on works bought cheap in mass 50 years ago, like classic Robert Johnson blues, which have suddenly become valuable in the internet age. But the need to protect franchises is still a primary driver and one that few seem to acknowledge or talk about in the ongoing debate. Most, like Postrel, still base their reasoning on one shot works, like Frost’s poem, and don’t discuss franchises at all. As such, the debate on copyright devolves into two sides talking past each other.
If we created a new form of property for franchised art works, the companies would lose their financial motive for pushing expansive copyrights and would stop putting political pressure on the government to expand copyright. We could safely return to the older system of copyrights for one shot works. More classical and no longer generative works would pass into the public domain while old works that still generated new creation in a franchise would still provide financial reward and control for their creators. Everybody wins.
We have to acknowledge that one shot works and franchises are disparate artistic, economic and legal entities that require their own customized property laws. Until we do that, we can forget about any meaningful and sane copyright law reform.
[Note: There are other neglected issues in the current copyright debate like the "Middle-Aged One Hit Wonder" but I'll cover those later. Let's restrict the current discussion to the issue of franchise copyright.]