Mothra vs Rodan: The New Copyright Wars

A new copyright battle is looming in the courtrooms of America, and if you thought you were already confused about how to protect your copyrights, welcome to the Fun House.

We’ve all seen the opening skirmishes of this contest in the highly publicized Napster lawsuits. Yet, I didn’t appreciate how much this fight would affect artists until this past February when, as members of the IPA, Cynthia Turner and I represented the interests of "creators" at the American Assembly forum at Arden House in Harriman, New York.

As panelists for artists’ rights, we made the case that many copyright problems facing freelancers are in fact antitrust problems. Yet, the chief topic for the other panelists was a debate brewing in various quarters over the length of copyright. This is a reaction to the rolling term extensions that have been granted copyright holders over the last two decades. These extensions—indeed, the structure of copyright itself—are now being opposed by other interests who wish to Napsterize or even abolish copyright altogether. These issues are complicated, but they can be sketched here simply.

Currently, copyright protects our work for our lifetime plus 70 years. Twenty years of that term were added within the last decade by passage of the "Sonny Bono Copyright Term Extension Act." Some say this legislation was a favor done for the Disney Corporation who feared losing their early copyrights on Mickey Mouse material. Others point out that the Bono Act merely brings the United States into compliance with international copyright law, a necessary step if we wish to maintain reciprocal overseas trade agreements.

Yet, the internet has spawned opponents to these long-standing protections. Upstart commercial interests, backed by certain academics, contend that "the black hole of copyright" inhibits free speech and overreaches the intent of the Constitution’s framers. They point out that copyright was originally intended to protect only authors of "maps, charts and books," and they seek to overhaul the entire copyright system. One legal scholar, Lawrence Lessig, who spoke at Arden House, has even proposed reducing copyright to a period of five years, with 15 increasingly expensive renewal options. And the Supreme Court has recently agreed to hear Eldred v. Ashcroft, a case which seeks to roll back the Bono Act. Lessig himself will argue the plaintiff’s case. Whether these opponents of copyright win or lose this case, they are apparently well-funded and we must assume that they will persist in their efforts to some affect.

In the face of this challenge, it’s not surprising that publishers are fighting back. And as our clients, they hope to enlist our support, arguing that we share a "mutual interest" in protecting our work. It seems they are passionate about protecting our copyrights, once they’ve gotten them away from us. Unfortunately, they’ve been less scrupulous about the means by which they get those rights from us in the first place. Remember all-rights contracts? "Sign this agreement or you can’t work for us again?"

So should we support them?

Well, let's say someone burglarizes your house. On his way to the getaway car, somebody robs him. Now, let's say the burglar sues the robber for the return of the goods and calls you into court to identify the stuff. Do you go? It's your call, but I'd prefer to remember where our issues lie.

Unlike mortals, corporate media giants can "live" as long as they remain solvent and have assets to manage. The longer they can extend the copyrights they hold, the longer they can guarantee the company will thrive. Companies like Disney know they can exploit stories from the public domain indefinitely, as long as they can hire wage slaves (including artists) under work-for-hire contracts to convert those free properties to long-term Disney copyrights.

Meanwhile, companies like Getty and Napster hope to become overnight media giants by selling access to music and imagery they could never afford to develop or buy the rights to. They hope to do this by exploiting a loophole in existing copyright law.

This loophole exists because the legislators writing the 1976 Copyright Act didn't foresee the internet. That means they didn't enact provisions to cover it. Therefore, some now argue that copyright shouldn't apply to the web at all. And since experts predict most work will ultimately be licensed through the internet, this loophole, if widened, would allow entrepreneurs to bootleg copyrighted material for their own profit. That's why we're seeing the cynical legal briefs by corporations suddenly concerned about Freedom of Speech and the Original Intent of the Framers.

Picking sides in a contest of this sort would be like choosing sides in a battle between Mothra and Rodan over which one of them gets to eat you. We ought to have the good sense to keep our eyes on the ball. I'm all for copyright protection that lasts as long as possible. But I'm less concerned about keeping the rights to my work 50, 70 or a hundred years after I'm dead than in keeping the rights while I'm alive.

At Arden House, several people privately warned that if left to manage our own copyrights, artists would fail to register and protect them in the same ironclad way publishers now do. A crazy quilt of rights, they say, protected willy nilly by artists scattered across the country, would bewilder and exasperate clients. It would drive them into the arms of Getty and Napster. They have a good point.

For decades, we've thrived in our cottage industry, despite inherent disorganization, geographical isolation and slip-shod record keeping. But the rise of "content aggregators" (rhymes with alligators) now gives clients a fast, cheap way of acquiring the rights to work. For illustrators, stock houses are the most familiar example of this development. Stock houses may not have original work and it may not be good. But it's fast, cheap and efficient. And clients have demonstrated a willingness to use it in numbers great enough to have affected thousands of careers.

That's why it's important to remember this is not a debate about selling stock. Whether you do or don't license secondary rights is a marginal issue. What's at stake is the protection and management of your rights. At the IPA, we believe a licensing agency will give artists a means of protecting and managing their rights collectively, while giving clients an efficient means of finding and clearing those rights. This goal is consistent with the demands of competition in today's changing market.