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Copyleft, Copyright and Everything in Between

Published on July 15, 2008

By Kathryn Robertson

As the Internet and file-sharing have mushroomed rapidly over the past few years, copyright law has been questioned by a myriad of organizations and individuals, including file-sharers and the student-based Free Culture movement. Within the filmmaking community there have been a range of standpoints in the debate over intellectual property rights as well. Some choose to throw their work immediately into the public domain, while traditionalists favor full copyright laws to protect their work from being pilfered. Then there are the in-betweens who put only partial restrictions on their work.

Keeping the Pirates at Bay

Copyright laws give a work's authors exclusive rights to copying the work, as well as the right to receive credit for it and decide who else can change it, perform it, and make money off of it. According to Brigham Young University's online copyright tutorial, "The primary purpose of copyright law is not so much to protect the interests of the authors/creators, but rather to promote the progress of science and the useful arts--that is--knowledge." In a March 4, 2005 press release from the Copyright Office, the U.S. Register of Copyrights Marybeth Peters said, "The founders of our country believed that by stimulating authors and publishers to create and disseminate works, the public would benefit."

The Motion Picture Association of America (MPAA) has launched a huge anti-piracy campaign to ensure that these laws are enforced, even insisting that the U.S. government intervene in countries like Sweden where there are no intellectual property laws, as in the case of Piratebay, a Swedish file-sharing server. Swedish officials confiscated most of Piratebay's servers in response to pressure from the U.S. government to adhere to U.S. copyright laws. The U.S. took action because the MPAA lobbied in the Senate to have the organization punished.

Besides taking such legal steps, the MPAA has begun an ad campaign and implemented new DVD technology to combat piracy, which it sees as a dire threat to the entertainment industry. According to an MPAA press release on June 21st, the organization's CEO Bob Pisano said, "Our number one priority is content protection. Enabling content creators to properly realize the legitimate, commercial return for their creative efforts lies at the heart of ensuring we continue to enjoy a healthy, vibrant film and television industry."

Some documentary and independent filmmakers, such as David Baeumler, consider the laws beneficial as well, but for other reasons. "Take away copyright laws and any big studio or ad agency can comb film fests for great ideas and take what they want for their next big film or commercial," said Baeumler. "Some people would say this already happens all the time, and naturally they're right. But at least if it's flagrant enough, a filmmaker could sue."

You Can't Steal It If Nobody Owns It

Another way to combat piracy is to eliminate the idea of intellectual property altogether, since you can't steal what can't be owned. Once a work is public, no legal process is required to reproduce it, use it commercially, or make changes to it. Under copyright law, intellectual property automatically enters the public domain after a period of time that is determined by whether it was published or unpublished, when the work was published, and when the author died. Some like to fast-forward to this part. They establish themselves as a bohemian crowd, starting movements and organizations with names like CopyLeft and Free Culture.

Steal this Film

For example, the League of Peers, a group of activists opposed to intellectual property rights, created a documentary called Steal this Film, put a copyright on it, and made it readily available for downloading on the Internet to attract attention to their cause. They put the copyright on so that it would be intellectual property that people could actually steal. According to the film's website, "All of this [restriction on intellectual property] is intended to destroy or delay inexorable changes in what it means to create and exchange our creations. If Steal this Film II proves at all useful in bringing new people into the leagues of those now prepared to think 'after intellectual property', think creatively about the future of distribution, production and creativity, we have achieved our main goal."

Baeumler can also think of instances when both parties could benefit if intellectual property rights were thrown out the window. His film Fudgie and Jane, which featured Carvel Ice Cream's mascot Fudgie the Whale, was played at numerous festivals, but he never asked Carvel for permission because it wasn't a flattering depiction of Fudgie. "To my amazement, a couple of years after the film played at fests, Carvel re-launched the Fudgie character in a series of ads that used a very similar costume and wise-ass tone that was in my movie," Baeumler said. "Now, should they have come to me? Should I have gone to them? In a way, we'd both be better off if we didn't have to think about it."

Welcoming Collaboration--Without Becoming a Welcome Mat

Creative Commons -- image by A. Diez Herrero

On the other hand, a few groups, like the non-profit corporation Creative Commons, think a balance between tyranny and anarchy in the copyright sphere is possible and maybe even more useful. Creative Commons allows people to put some restrictions on the ways others use their work while leaving some leeway beyond what copyright law affords.

A Swarm of Angels, for example, is a project to create a film with 50,000 contributors from the general online community, guided by its producer Tommy Pallotta, the producer of Waking Life, and by its director Matt Hanson, who was named one of Forbes' "Top 10 People Who Could Change the World" in 2007. People who want to contribute can pay #25 (roughly $47) and have a say in which of the two completed proposals is used and in creative decisions throughout production and development. They can even be a part of the production crew. Even though the project is revolutionary because of its inclusiveness, its Creative Commons licensing gives it some protection. "I didn't want to allow a complete free-for-all of commercial exploitation by anyone (including other companies who could commercially profit), but I did want to allow individual and artistic use so A Swarm of Angels could enrich the cultural commons," said Matt Hanson, the project's director.

According to Baeumler, Creative Commons is closer than copyright laws to the reality of how filmmakers borrow material. "If it's for a theatrical release or for a commercial, you pay the fees," he said. "If it's for a festival, you don't...I just find it strange because we are told one thing, but the reality is something else."

Reality Check

The reality is that many filmmakers prefer to make their work available for others to borrow if it will help to create an atmosphere where they can also freely borrow. As a result, some have taken up the cause of eliminating copyright laws altogether, while others still prefer the original copyright laws in all their glory so they can have nearly complete control over how their work is used. Then a few choose the Creative Commons because they want to include their work in a less restricted artistic environment, but fear being ripped off. Of course, some borrowing is already allowed within U.S. copyright law. According to American University's Center for Social Media website, "Copyright law does not exactly specify how to apply fair use, and that is to the creators' advantage. Creative needs and practices differ with the field, with technology and with time."

The Center also recently made a guide to fair use in online videos in the absence of a set of guidelines in the law. To find out more about fair use, see the Center's complete guide. You might also want to read our previous coverage on the subject; Use It or Lose It: An Update from the Frontlines of the Fair Use Movement..

For more information concerning the differing points on the copyright spectrum please visit the website of the U.S. Copyright Office, Libervis.com a community of technology enthusiasts passionate about liberty and Creative Commons.

This article is available for noncommercial use under a Creative Commons license. It was originally published on MediaRights.org, a project of Arts Engine, Inc. This notice must accompany the article at all times.