[This post is reprinted from Attempts, a blog I read and highly recommend. (Those “Alas” readers who aren’t interested in comics may still want to check out “Attempts” for posts like this one about Roman Polanski).
[Thanks to Stephen Frug for his kind permission to repost this on “Alas.” –Amp]
* * *
Thoughts on the copyright reclamation by the heirs of Jack Kirby, sparked by this post by Alan David Duane.
(In reading the below, remember I’m neither a lawyer nor a policymaker nor even one who has read the relevant legal documents; I’m going by a (semi-informed, but distinctly) layman’s readings of the news stories about them. If that doesn’t interest you, bail now.)
1)
The heirs of Jack Kirby have filed a notice of copyright reclamation in the case of superheroes he had a hand in creating for Marvel in the early 1960’s, characters such as the Fantastic Four, the Hulk, and even Spiderman (who was created by Steve Ditko more than Jack Kirby).
2)
It’s important to remember what’s going on here. Kirby’s heirs aren’t suing anyone — at least not yet. They are filing a notice of reclamation. They are able to do this because of the odd nature of our current lengthy copyright system.
Until 1976, copyrights were good for 56 years — an automatic 28 with a single optional renewal. In 1976, Congress extended that period — first to 75 and then later to 95 years (oversimplifying but in essence). This was not only prospective, applying to works copyrighted in 1976 and later, but retroactive, applying to old works too.
But this created an odd situation for those who had sold their copyrights prior to 1976. What they’d sold was copyright as it existed then, i.e. the 56 year term. What to do about the extensions for sold copyrights? Should they belong to the original owner (on the grounds that they only sold the existing copyright of 56 years and not any more), or should they belong to the new purchaser (on the grounds that the purchaser bought the copyright and the extension doesn’t affect that)?
(Note that this is also a different legal situation than the one involving DC/Superman/Jerry Siegel’s heirs.)
3)
This entire debate is distorted by a broader misconception in our culture about the relation of worth and wealth to merit and effort.
It is a strong cultural myth in our society — an essential undergirding of one of the two major political philosophies of this country, and an almost-as-important one for the other — that people who get rich deserved it. They worked hard, or had a good idea, and therefore they made it. Conservatives tend to (implicitly) assume this is the end of the story: if you work hard and/or are smart, you’ll get rich; if you’re poor, it’s your own damn fault. Liberals, in contrast, recognize unfairness and randomness to a degree, so they tend to say that people can work hard and stay poor. But neither side tends to see the fact that wealth is at least a much a matter of chance and luck as it is of merit or effort.
The reason we don’t like to see that, of course, is that it upends the supporting intellectual assumptions of most of our society: if the rich are simply lucky, then the enormous favor they receive is unearned and unfair. ((Incidentally, the consequence of this argument isn’t necessarily a socialist economy, which I wouldn’t actually favor; there are extremely strong pragmatic grounds for favoring the retention of a capitalist system and, as part of that, a robust set of property rights. It’s just that such a system should be supplemented by a far stronger redistributory state (in a tax-for-social-goods-sense) than is true of the U.S. today; and also (and this is almost as important) that the public culture and debate should recognize the preponderance of luck in the outcomes of economic lives.))
This is never more true than when we are talking about intellectual property.
I’m not (repeat, not) saying that artistic merit has no relation to how well a work does. But it’s been extensively argued on theoretical grounds, amply seen throughout history and shown in controlled laboratory studies that merit is, at best, a necessary but not sufficient factor. Harry Potter may have been a good series of children’s books — but there are a lot of other books that are equally good (as I’ve had children’s librarians say to me); J. K. Rowling may have been good, but she was mostly very, very lucky.
However true this is of the success of original works, how much more strongly true is it of intellectual properties ((What a vile phrase.)) which have success in derivative works!
This distorts our discussion in numerous ways. In part it leads to people saying things like
I won’t argue with anyone who tells me Herb Trimpe is unlikely to return to Marvel and create a blockbuster, breakthrough character that generates millions of dollars, no matter what sort of compensation deal is in place.
…which implies that the talent and effort of Herb Trimpe (who was the first man to draw (although he did not create) Wolverine) was a major role in Wolverine’s becoming a breakthrough character. This is not because of what Herb Trimpe did or didn’t do. ((Although in fact I think that Wolverine’s blockbuster status has far more to do with Chris Claremont, and to a slightly lesser extent Frank Miller, than it does Herb Trimpe or Wolverine’s creators — although Claremont and Miller have even less legal claim than do Wolverine’s originators.)) It’s because time and chance — and broad social forces such as create a market for characters such as Wolverine — and, above all, fashion are what made Wolverine worth what he’s worth today.
The fight that will follow over the ownership of the Fantastic Four isn’t quite like a fight over a lottery ticket; but it’s far, far closer than anyone is granting in this discussion.
4)
There is a third party to every legal battle over intellectual property, one which has neither lawyers nor lobbyists on its side. Thanks to the recent intellectual growth of the copyleft movement, it has some advocates; but their position is largely based on reason and fairness and the public good, and is therefore extremely weak. But it is the most important party nonetheless.
I speak, of course, of the public.
Intellectual property — a misnomer, really, since there is no thing to be owned — is a government-enforced monopoly restricting freedom of speech. It restricts your ability to say what you want to say, in person or print or on film or in comics — if what you want to say is, for example, “I was the shadow of the waxwing slain by the false azure of the windowpane; I was [REMAINDER DELETED DUE TO DMCA TAKEDOWN NOTICE]” It equally, and even more indefensibly, to your ability to tell an original story — if that story is about, for example, Superman or Spiderman.
There are reasons for so limiting speech — which is why the power to do so is explicitly granted in the Constitution — but given that it is limiting very basic human rights, the power is moral only insofar as it is necessary to accomplish its stated ends. (Whether or not it is legal is a separate matter.)
5)
The moral case for creators’ rights is both essential and irrelevant to the Kirby-copyright issue.
It’s irrelevant because neither party has a very good moral (as opposed to legal) claim. On one side we have Kirby’s biological heirs; on the other, the corporate descendants of the companies he worked for. Neither set of people had much to do with the effort or talent put into these characters; they are fighting for an inheritance, and like any fight for inheritance they are fighting for things they may have title to but don’t in any moral sense particularly deserve.
But it’s essential because it was only because of the (perceived) moral rights of creators that copyright was extended in the first place.
If the case before Congress had been that companies wished to extend their intellectual monopolies to make more money from them, then even that bribery-pliant group of sellouts would have a hard time justifying such a vote. So it was all talked up in terms of the struggling, lonely dreamer, hoping to turn his or her talent into a win for his or her heirs.
This was a fiction, of course — as much of a fiction as the notion that estate taxes hit small farmers rather than wealthy businessmen, and a fiction of the same kind, i.e. a propagandistic one designed to hide the true beneficiaries of public policy. But in terms of the copyright extensions passed in the 1970’s, and then again in the 1990’s, and then again whenever Mickey Mouse next threatens to go out of copyright, it’s an essential one. Without this fiction, the extra value that came from the copyright for years 57 – 95 of an intellectual property simply wouldn’t exist — or would, rather, be held by the public and not by anyone in particular.
This is why you can’t say of copyrights what you’d say of, for example, real estate. If you sell a house in a poor neighborhood, and then it becomes trendy, and the owner therefore (through luck) becomes rich, you can’t complain that you didn’t know its worth when you sold it. But no one seriously doubts (pragmatically if not morally) the perpetual property rights to real estate. ((Except the bible, of course, which wanted everything reset to zero every fifty years to ensure justice (Leviticus 25:13). What socialist commie pinko wrote that, eh? ))
Whereas the purchasers of these monopolies, which have become valuable only due to chance (and the efforts of thousands, morally and artistically indistinguishable from similar efforts which led nowhere), have any chance of extending them at the expense of the public only by appealing to the moral claim of their creators.
Marvel wants to argue that, for the good of people like Jack Kirby, it must have the right to hold a monopoly on his creations — against, in this case, his actual heirs. They need the appeal to Kirby’s rights to win the broader public debate, and need to squash that same appeal to win the narrow legal one.
The myth that wealth is earned is necessary to make us think that the financial windfall is significantly due to Kirby’s talent in the first place, and that this fight over a lottery ticket is a fight over who really deserves it — blinding us to the real answer, no one.
6)
Artists can’t threaten to withhold their next breakthrough character from big companies if they’re not fairly compensated, because they have almost no say in whether they can create one. They put their effort and talent into what they make; but what makes it valuable is fashion, and the efforts of others, and luck, and a host of other factors.
Companies have extended copyright based on a myth of the individual creator — who they are trying to screw over at every other moment so as to make money for themselves.
Of course artists should be fairly compensated for their work — and there is, as I have said, a very strong pragmatic argument for copyright, one I don’t disagree with (assuming that said copyright is, as provided by the U.S. constitution, “for limited terms”). But the vast wealth at stake here is irrelevant to that right, since it is all-but-irrelevant to that success.
And of course companies should be able to get funding to make (say) movies, and then profit from those endeavors. But they want more than that; they want to maintain a public monopoly on the ability to tell stories about certain characters who, for whatever reason, have caught the public’s imagination, so that not only can they make and profit from stories about their characters, but so that they can ensure that theirs are the only stories about those characters that are there to be told.
7)
Since I’m not a lawyer or policymaker, but simply a citizen with opinions on public policy, I can say that I support neither Kirby’s heirs nor DC/Marvel. I think that, 56 years after their creation, all works should be in the public domain. The supreme court, alas, disagrees — which seems to mean little more than their unwillingness to open the can of worms of recognizing that our current Congressional system is so poisoned by legalized bribery that no judgments of Congress (or the President, or really the Courts) can be understood as representing the public interest save incidentally. They said it was Congress’s call to make — which would have been a reasonable argument if Congress wasn’t bought and paid for by the stakeholders on one side of this particular issue.
But the Congress was bought and paid for, and the Court was unwilling to enforce the rights of the public. So what we are left with is a debate over who should get to steal from the public the winnings of a lottery.
8)
To anyone not convinced by all of the above:
I have one more argument for my position. It’s a knock-down, irrefutable, overwhelming argument, such that if you heard it you could not even begin to imagine disagreeing with me. It would, in fact, revolutionize your thinking on every aspect of this issue.
But since this set of concepts can, as it happens, only be expressed in metaphorical terms as an X-Men story, I’m not legally allowed to share it with you until the X-Men go into the public domain.
Until then, you’ll just have to trust me.
It equally, and even more indefensibly, to your ability to tell an original story — if that story is about, for example, Superman or Spiderman.
People certainly seem to be writing stories that use the Superman character — but they use it in an original way, to comment upon or criticize or satirize, rather than just as the unauthorized Superman’s Adventures #234534.
Conservatives tend to (implicitly) assume this is the end of the story: if you work hard and/or are smart, you’ll get rich; if you’re poor, it’s your own damn fault. Liberals, in contrast, recognize unfairness and randomness to a degree, so they tend to say that people can work hard and stay poor. But neither side tends to see the fact that wealth is at least a much a matter of chance and luck as it is of merit or effort.
Partially true.
Conservatives DO believe that chance and luck play a huge role – but we believe that their role is played largely before and at birth. It’s chance and luck that I was born to educated and humane parents in America in the 20th century, rather than to ignorant and bestial parents in Albania in 533 AD. This luck plays out in the fact that I can make the same good decisions and have the same good character in both places, but obviously will receive much larger dividends in America 1968 than in Albania 533. It’s an unearned contribution to my well-being, from an individual perspective, that I got lucky here.
WITHIN the course of daily life, we acknowledge that luck and chance play a role – being in the right place, knowing the right person to start a project with, etc. – but you’re right, not many people like to focus on how much of their success and fortune comes from this kind of contingent event. (Most people are more willing to acknowledge the prebirth kind of luck – there but for the grace of God, etc.)
The thing you get wrong is the “work hard and/or are smart, you’ll get rich; if you’re poor, it’s your own damn fault”. We don’t believe in the first one as being generally true – working hard and/or being smart are PREREQUISITES for success, but by no mean guarantees.
We do believe in the second one being true, because it is. By and large in America, if you are poor past young adulthood, it is the result of decisions you made yourself. By poor I mean POOR, not “I only have a Corolla and all my classmates from Oberlin have BMWs”. In other countries, the plight of the genuinely poor are very often the fault of socioeconomic arrangements that anchor them in poverty; that is rarely true here, where the anchors are almost always cultural, and almost always something that the “poor” person could heave overboard if they wanted to.
I’ve met lots of poor people, both in America and in other countries, and nearly all of the poor people I’ve met here were poor because they made poor choices. A true bleeding-heart liberal can undoubtedly find excuses for why those choices were the only choices that could be made; the flint-hearted conservative can undoubtedly find people who were in the same position but who somehow managed to make different choices.
Hard work and smarts do not guarantee success, but laziness and education avoidance/deliberately-chosen stupidity do more or less guarantee failure.
Hi Robert!
Sorry, but I’ve got to take issue with your “poor people are poor because of poor choices.”
In early 2008 I had an excellent, well paying job at a software company and was not poor by anyone’s definition of the word – I was even car shopping for a rather nice car.
In April 2008 I was sent to the emergency room for severe dizziness.
By June I had lost my job because of illness; by September I was spending a full week at the Mayo Clinic. Although the job did provide long term disability insurance, which I’m on now, I also found myself dealing with piles of medical bills (not incidentally, I have to continue to “prove” that I’m ill to continue to obtain disability insurance which means stacking up more medical bills which means a greater need for the disability insurance….) In less than one year I went from being well off, independent and fully employed to broke and living with family. And I’m LUCKY – I have (lousy) health insurance, disability insurance and family.
The cause of this? Almost certainly a virus causing a permanent neurological problem – possibly the flu I had in early January 2008, more likely, with my medical history, the second case of chicken pox I had when I was six. (Yes, I had chicken pox twice. The second time was particularly bad and may have caused the initial problems.)
So, Robert, let’s check: I went to college and grad school, worked full time and occasionally two jobs, continued throughout my career to earn more and more money, and thanks to a virus, this is where I am now. What choices, exactly, did I make?
Another story: a former roommate of mine, also with a college degree, a husband, and a decent job who has just had to declare bankruptcy because of her kid’s medical bills.
We’re not exceptional. At the Mayo Clinic and Delray Medical Center I met _many_ people in my position or considerably worse – people who had worked hard and got sick for one reason or another. Unfortunately, this happens.
I’m not denying that some people make bad choices that can lead to poverty. I’ve seen that too. But I don’t think you can say that all poor people are poor because of choices they’ve made. Sometimes, things happen.
I think you actually are pretty exceptional, Mari, in a country of 300 million of whom maybe 30 million are hardcore poor. There weren’t 30 million tragic neurological diseases. (And I’m sorry that happened to you, by the way.)
But I only wanted to express my partial agreement/partial disagreement with Amp about what conservatives believe, not derail the main point of his thread, so I won’t defend my thesis further.
…my partial agreement/partial disagreement with Amp about what conservatives believe, not derail the main point of his thread…
Amp was kind enough to cross post it here, but the words are mine, and he shouldn’t be blamed for them (I don’t know whether he agrees with me or not). The point, right or wrong, was mine.
I stand corrected.
Liberals, in contrast, recognize unfairness and randomness to a degree, so they tend to say that people can work hard and stay poor.
True, but then voluntary choices affect this. You can work like hell writing and publishing web comics, but the fact that you are highly unlikely to be able to support yourself and your family on that is neither unfair nor random; it’s entirely predictable.
Mari, I would not go so far as to say that everything that happens to someone is the result of conscious choice. Your truly terrible story is a good illustration of that. But I think it is fair to say that your story is also exceptional. In the main, most people who make good choices benefit thereby, and people who make poor choices suffer thereby. Luck and randomness – and the will of God – are factors in our lives. But so are our choices, and we must take responsibility for the consequences of them both good and bad. We are not entitled to require the taxpayers to take what they’ve earned from their good choices and shelter us from our bad ones.
Steve, I read that Bible study link. Suffice it to say that to my mind, “American churches have departed strongly from Biblical values in these areas, and even created a rationalization– “prosperity theology”– for rejecting them.” is way out of line. Yeah, there are some TV preachers talking about prosperity theology. But the Episcopalians and Catholics and Lutherans and a lot of others spend a lot of time and money helping the poor.
Heck – my own Episcopal parish just hit on an opportunity. We happen to be sitting on some acres of prime land in the middle of a well-to-do Chicago suburb. Much of it is a well-mainained lawn. But as of a couple of weeks ago, 5000 square feet of that lawn is now plowed up. We’re going to grow food on it and give it away.
Hm. To get back on topic; I’m all for protecting intellectual property. I think that it was a genius stroke for the Founders to include the concept and give Congress the ability to protect it include it as part of our Constitution, and helped make the U.S. the country it is today.
But I also think that there should be a limit, and that it should be related to the lifetime of the creator. People should be able to profit from their creations, and their ability to have a monopoly on that makes sense. Once the creator has had a reasonable time to profit from his or her work, however, that monopoly should cease. I don’t see that Disney should have a permanent monopoly on Mickey Mouse. A company that cannot come up with something new SHOULD die.
Disagrees that all works should be in the public domain after 56 years? Or disagrees that Congress exceeded it’s authority in doing what it did? It seems to me that they offered the latter, not the former.
An argument that could be used to invalidate any and every act of Congress, leaving our laws to be made by the considered judgement of 9 people appointed for life and only removable by impeachment. Sorry, I can’t agree with the use of this argument. If what you say is true then it’s up to the people to change their Congress. deTocqueville was right – in a democracy you get the government you deserve. Substitution of their judgement for that of the legislature is the very definition of “judicial activism” – which would essentially be judicial tyranny.
Or perhaps her opinion of what was good is more valid than that of children’s librarians. Or, perhaps she recognized that it took more than being good for a book to be attractive to children. Just because her books are equally as good – in childrens’ librarian’s opinions – as other children’s boooks doesn’t mean that the only other factor involved in the reasons her books sold better was luck. There’s things like the attractiveness of particular themes and characters to children, and the ability of a publisher to market the books.
I’d be interested to see you cite these studies that claim that success in life is preponderantly due to luck.
@RonF at 10
I think this will run into insurmountable problems in practice. Many works are group efforts. Others are works-for-hire*. Such works certainly deserve copyright protection, but I don’t think there’s any non-arbitrary way of relating it to the lives of the creators. A fixed term of years is much, much easier to administer. Now maybe it should be 40 years, instead of a century, but I think “lifetime” is unworkable.
* Before someone challenges the propriety of the works-for-hire doctrine, think about computer software, or modern filmmaking. How would you run a software company or a large production company if you had to figure out exactly how much of the creative work was the product of every employee? Far simpler to vest copyright in the corporate employer.
But since this set of concepts can, as it happens, only be expressed in metaphorical terms as an X-Men story, I’m not legally allowed to share it with you until the X-Men go into the public domain.
Pretty sure you can still lay out your argument, as long as you’re not profiting from it. Nice try, though.