Is Copyright Cultural Theft?

Last night my daughter and I settled in to watch the 2013 blockbuster The Lone Ranger, directed by Gore Verbinski, and produced by six companies including Walt Disney Pictures, Jerry Bruckheimer Films and a rather suspect organisation (in terms of Hollywood accounting practice) called Silver Bullet Productions (II).

While hardly a masterpiece, it made for enjoyable Friday evening in. This was, in part, due to that familiar brand of humour that Verbinski imbues into his films including the first three instalments of the Pirates of the Caribbean (2003, 2006, 2007), also produced in collaboration with Disney and Bruckheimer. Moreover, who can resist Johnny Depp’s incarnation as Tonto, despite the fact that it bears a remarkable similarity to his performance and appearance as Jack Sparrow in Pirates.

And the film’s connection to Hollywood history runs far deeper that the creative talent involved in its production. To the degree that the film labours the motif of crashing trains and pocket watches, it is an over-enthusiastic nod to Martin Scorcese's 2011 feature Hugo, and the early cinema which it references.

The Lone Ranger is also, of course, an iconic hero of US popular culture with various media incarnations, which can be traced back to the 1915 book The Lone Star Ranger by Zane Grey.

More popularly remembered are the radio show comprising over 3,000 episodes transmitted between 1933 and 1956; the two Republic Film serials released in 1938 and 1939; the ABC TV series which ran for eight seasons from 1949 to 1957; innumerable comic book serials; and six different movies, including the latest Verbinski offering. While George W. Trendle is a key force that brought the character to life from its early radio days, authorship of, and the right to represent The Lone Ranger, has been a matter of legal contention at various points through the twentieth century.

The convoluted authorship and representational evolution of The Lone Ranger got me thinking, once more, about some key problems with the concept of intellectual property (IP). A couple of weeks ago I proposed that in place of IP laws criminalising consumers of copyrighted content, industry players needed to catch up to the possibilities of digital technology and deliver content to their audiences in the forms and time frames that they demand. This would eliminate a whole category of criminal behaviour and enable companies to profit from audiences rather than alienating them. This led to a small but somewhat heated exchange on a separate social media site.

A key thrust of the discussion whether or not IP law is necessary to protect innovation. The suggestion by one individual was that for individuals to reasonably profit from their innovation, they need laws to protect them from competition with “imitators and ‘come lately’ copiers.” This position accords with the popular view that for society to achieve progress, there must be financial incentive for individuals to expend time, money and considerable risk innovating. And the collective progress of society is a fair concern.

I would, however, content that IP actually stifles innovation and progress, and moreover, amounts to a form of social and cultural theft.

The creative individual – the craftsperson, the artist, engineer, code writer, and in film, the auteur – effectively draws on knowledge, skills, technologies, and indeed a canon of existing works, to create something new. While a particular individual, or group of individuals, may indeed innovate an idea or technology that revolutionises their sector, that particular innovation is nothing without the innovations that have come before, and moreover, it contributes to stable of skills, knowledge and technologies from which their peers can subsequently draw.

A key example here would be Disney. The canon of classic and modern Disney animations draws from fairy tales that are many hundreds of years old including Snow White, Sleeping Beauty, Cinderella, and Pinocchio, the tales of Hans Christian Anderson including Frozen (adaptation of The Snow Queen), and of course A.A. Milne’s literary classic Winnie the Pooh. These animations, particularly Snow White, were lauded for their technical innovation. It remains, however, that these animations were not original to the degree that they represented characters and narratives authored by others.

If Disney has historically exercised the right to draw and profit from the cultural canon, which we have all inherited, it holds that the corporation cannot (or at least should not) demand the right to prevent its own creations from entering into the public domain. And yet, this is exactly what has happened. As the graph bellow demonstrates, in the USA the period of copyright as been intermittently extended and is currently the life of the author plus 120 years. Without these extensions beloved characters such as Mickey Mouse and Winnie the Pooh would already be within the public domain.

For my part, I subscribe to the anarchist view that government is immoral insofar as it uses force to secure the economic, individual and political rights of a few powerful people and special interest groups. In the world of film, these people and groups are more often than not, the holders of copyrights in old works on the verge of expiring – for instance, the Gershwin family trust, grandchildren of Oscar Hammerstein and Disney – and the Motion Picture Association of America (MPAA), which is essentially, an extremely powerful lobby group representing the large Hollywood studios.

Ultimately the extension of old copyrights, which in some instances have been retroactively applied to expired products, does not protect future innovation, but rather, secures a revenue stream for familial and corporate dynasties who had no hand in the creation. These groups drain money from the market without offering anything back in the form of productivity.

On a final note, it has been said that IP prevents competition, which is absolutely necessary for driving the quality of products up. Competition forces businesses to innovate new ways to attract the consumer dollar, for instance by providing a superior product in terms of quality, through competitive pricing, or by targeting a niche demographic. Without such competition, incentive to provide the best possible product to the consumer diminishes. For many, this is reflected by the current state of Hollywood film, which has no competition for its budget products, and which have lately failed to wow audiences by pushing the envelope with regards to special effects, generic innovation and narrative.

IP laws don’t defend the rights of authors to profit from innovation, but rather enables large corporations to profit from cultural knowledge without giving anything back, starving culture of the new ideas and knowledge that nourishes it. 

It is in this sense this sense that IP is tantamount to cultural theft.