Below Brad Delong’s blog entry about Larry Lessig, if you scroll past the speech, there are reader comments. Here’s one from Jim Glass that, for obvious reasons, caught my interest:
Say that without copyright you came up with a great, clever cartoon and put it on your web site. What would prevent the scouts from Disney or Fox from just taking it as their own, putting $1 million behind it, making $100 million, and saying screw you. Would you go on to make another cartoon then?
Jim’s comment is a red herring, since Lessig doesn’t propose eliminating copyright altogether. But it does illustrate a common misconception: that the value of an piece of art is the idea, rather than the artist’s development of the idea. (When I ran a site for aspiring cartoonists like myself, I’d get emails from comic strip creators who were scared to submit their idea to cartoon syndicates, "because what if they steal it?" Those cartoonists had the same misconception.)
Consider Calvin and Hobbes – certainly one of the most valuable cartoons of the last twenty years (how many millions of dollars did Bill Watterson turn down by refusing to license merchandise?). Is the value of Calvin in the idea? No, because frankly, the idea – "a boy and his imaginary pal" – is banal. Variants on that idea have been done dozens of times, sometimes well, sometimes not.
The value of the work is that Bill Watterson, Calivn’s creator, is a fucking cartoon genius. It’s what Watterson did with the idea that has value – which is why the syndicate, which was drooling over the idea of Calvin and Hobbes merchandise, did not fire Watterson and hire a more cooperative cartoonist. In the end they gave Calvin and Hobbes, which was their legal property, to Watterson, rather than lose Watterson’s services on the strip.
Why on earth would any business give away something so valuable?
Because they knew – and it’s unusual for a corporation to be this perceptive, frankly – that the idea for Calvin and Hobbes wasn’t as valuable as it seemed. The real value of Calvin was Bill Watterson’s talent. If they had let Watterson go, they could have found a hack to keep the strip going – but it would quickly have become just another comic strip, a waste of space indistinguishable from Dennis the Menace or Marmaduke.
Of course, there are exceptions – sometimes it really is the idea that’s valuable. Superman is the classic example – an billion-dollar idea from cartoonists who did not have world-shaking talent, but who had the right talent for the right idea at the right time.
But Superman brings up another important point (one that is made by Zitka on Brad Delong’s page). Copyright laws do not protect creators of million-dollar ideas. They protect copyright owners.
Copyright certainly didn’t protect Jerry Siegel and Joe Shuster, the creators of Superman.
In the half-century between the creation of Superman and the creation of Calvin and Hobbes, very little changed for cartoonists. The ownership of Superman was signed away for the same reason the ownership of Calvin was signed away decades later: the cartoonists were young, hungry, unpublished and desperate to do comics. And if unknown cartoonists won’t publish the bosses’ way – which means signing away all rights – they won’t get published.
Jerry Siegel and Joe Shuster might have been better off had Superman never been copyrighted – at least they would have had the right to continue making Superman comics and selling Superman drawings into old age. (As it is, they ended up penniless, until bad publicity convinced Superman’s owner to give them pensions). The in-practice effect of copyright – and of the overwhelming imbalance of power between a young creator and a huge publisher – is protection of the publisher’s interests, not the creator’s.
Here’s something the brilliant Canadian cartoonist Dave Sim said, in a speech to a roomful of cartoonists, about dealing with publishers:
The myth of course, is that if they violate the terms of the contract you can sue them. It is a myth because it takes a lot of money to sue an individual successfully and a ton of money to sue a company successfully and that brings me to the second hard truth about companies. No company is ever going to pay you enough money to sue them successfully. They might pay you enough to retain the services of a competent lawyer for a few weeks or a few months or a year or two, but they know you will eventually run out of money and when you do you are going to have to settle out of court. Your settlement might cover your legal expenses but this is not likely.
A lot of people in this room are currently working on material for which they have not received a contract. A lot have completed work for which they have not received a contract. There are even people in this room who have had work published for which they have not received a contract. Companies do this to limit any possibility of negotiation. By the time you get the contract, you have already done so much work and need money so badly that you will sign it whatever you might think of the terms.
For the vast majority of working cartoonists – and, I suspect, working musicians as well (if you haven’t done so already, read this article by Janis Ian, and this one (pdf link) too) – that is the reality. Copyright law, in its current incarnation, is not about protecting my interests. Those who say that copyright must not be changed, because cartoonists like me need the protection… well, at best, they’re not familiar with the facts on the ground.
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