This week, ‘SQRAT’ creator Ivy ‘Supersonic’ Silberstein celebrated the postscript of over a decade of litigation against Blue Sky Studios/FOX (subsequently Disney). A lot of articles (and there are quite a few) comment that Disney can no longer use the character ‘Scrat’ or create any more films featuring him. Such an assertion isn’t entirely correct and once again highlights the muddy waters that lie between copyright and trademarks. Read on to find out why. …
It’s a long-held tradition that fan-art is one of those things that’s just going to happen whether a studio like it or not. From the professional to the downright weird, fans love to show their love and passion for something by making their own version of it. Apparently, that no includes replicating an entire episode, but what kind of copyright questions does this throw up?
The rest of this year is gonna be a killer; in a good way after October too! A varied number of week links for you today thanks to some great articles that popped up on my radar.
Copyright is a concept that has, and continues to, perplex many people. The concept of Creative Commons is designed to help address many issues surrounding copyright that are often ignored to the peril of legal liability. In this new media landscape, where can Creative Commons fit into the animation industry and how can it do so while maintaining revenue sources.
Copyright plays a large role in legacy entertainment business models and animation is no exception. Thanks to the existence of the Mickey Mouse Copyright Act, very little American animation has made it into the public domain, and with recent rumblings about yet another extension, we’re unlikely to see any new ones entering for the foreseeable future. So we know it’s killing the completed package, but how is it killing the actual animation itself? For that we turn to a joke that was nixed for copyright reasons alone.
This blog hasn’t been shy about Kickstarter in the past. It’s a great service and one that enables independent creators to fund their creations in an efficient and relatively risk-free manner. Of interest to us is the animation-related projects (naturally) and with the recent success of the Cyanide & Happiness campaign, there has been much to celebrate in that regard. That said, as with any successful service, the big boys eventually come knocking and that’s where the problems begin when it comes to determining who owns Kickstarter projects once their funded.
Backers Are Technically Investors
Think about it, if you put money towards something (tangible or not) you’re really investing in its success. Projects that aim to create a physical object generally offer said project as the reward for backing. Projects concerning content also tend to offer the content (or access to it) as rewards because (naturally) people who back something want to be able to see it too.
The problem is that content projects generally depend on lots of people watching it. Those lots of people won’t be backers, they’ll be members of the general public who heard or read about it from somewhere else. Since they have nothing to do with the original Kickstarter campaign, that essentially makes the original backers investors instead of donors. Concepts such as ownership of the completed works and the nature of any copyrights associated with them have so far gone unaddressed in many Kickstarter campaigns despite the fact that they are often a sore spot in traditional models.
How This Becomes Problematic
The impetus for this post comes from Dara Naraghi who commented on the recent Veronica Mars Kickstarter campaign. If you are not familiar, the gist is that major studio Warner Bros. ‘told’ the series creator that if they could raise $2 million, the studio would consider a feature film. Needless to say, that target was blown away within hours (its at $4 million as of writing).
Dara however, sees a massive problem :
First of all, allow me to congratulate Warner Bros. for being so incredibly generous to “allow” people to give them free money, with absolutely zero risk to the studio. What great movie making folks they are. And secondly, if the phrases “met with the Warner Bros. brass” and “they agreed to allow us to take this shot” make you feel confident that the movie studio is obligated, ethically and legally, to make this movie, then you’re either the world’s biggest optimist, or stupidest investor. Seriously.
He’s right too, but the problems extend far beyond the above attempt to make a film. In the past, if you put money towards a project, you were also (generally) entitled to a share of any profits generated (its one of the founding theories of capitalism). With Kickstarter, no such guarantees exist. Essentially once a film/series is funded, you (the backer) are no longer entitled to anything beyond what you were originally promised, and even then you may be left in the lurch.
Under certain circumstances, such a scenario is acceptable though. Think an independent animator who just wants to get their film onto DVD, or the comic artist who wants to publish a book.
Those kinds of campaigns are different though as the content has already been created. The projects this post is concerned about are the ones whose goal is to fund the content itself. Problematic insofar as content tends to live on for quite a while and can generate revenue for decades after they are created. Is it really fair to the people who paid for it to see the money raised go straight into the pockets of the creators who essentially put up nothing besides the idea? (If you disagree, please by all means add a comment below.)
How This Can Lead to Abuses
While many people freely donate/invest knowing this, where it could potentially become a problem is when larger players get involved. Projects like the Cyanide and Happiness one are done by individuals with a strong connection to their fans and who gladly give the content away for free afterwards, but what if a major studio (such as Warners) did the same? Do you think they would make it freely available afterwards? Nope, not a chance. What about the money they would make from it, would that be distributed among the people who donate? Again, not a chance. Heck, Hollywood studios are already notorious for not even giving out the money their contractually obliged to. What hope to thousands of individuals have?
Naturally if you only throw $25-50 at a project chances are you won’t be too put out, but some campaigns have donors who pledge $10,000 or more! That’s certainly not a pledge but a true investment; even more so since they often come with a ‘producer’ credit.
How To Mitigate For Abuses of Kickstarter Backers
As you can probably tell, the issue here isn’t people receiving nothing, or people receiving little but rather people seeing their generosity taken advantage of. Independents keep this in mind, but larger studios certainly won’t. If Warners receives the Veronica Mars Kickstarter money, rest assured it will disappear into the black hole of development hell. Why? Because it’s 100% profit for them and having $4 million in their hands is worth a heck of a lot more than a potential $100 million box office.
The simplest and most effective way to mitigate is to simply let the content created roam free either in the public domain or (more sensibly) under a Creative Commons license. Put simply, the latter does not prohibit creators from making money, but does not preclude investors from enjoying and sharing it either.
What Do You Think?
Lastly, I want to hear what you think. Time pressures meant I was unable to contact and query the people I wanted to before writing this post, so I’m eager to hear what you think. Would you feel cheated/angry if a Kickstarter project made lots of money after you backed it? How about being told you can no longer enjoy it thanks to copyright restrictions?
Leave a comment below and feel free to share this post too!
Nina Paley has jumped through so many hoops for her feature film Sita Sings the Blues that at this point, she may as well have her own circus. The latest tribulation was caused by, of all people, the National Film Board of Canada, who requested rights for referencing Sita in a film being made by Chris Landreth (amusingly, a bunch of Candians apologise for the NFB’s actions in the comments of the original blog post). Nina, fed up with having to fill out paperwork rendered useless by the Creative Commons license she placed Sita under promptly moved it to the public domain.
If you’re not familiar with Nina’s struggles to make Sita Sings the Blues, I highly encourage you to check out the FAQ page that details pretty much every aspect of the film. (The section of interest to today’s post is the copyright section a wee bit down the page.)
Long story short, Nina was forced to pay enormous sums for the right to use the music she wanted to for the film. The experience turned her into a free culture activist and resulted in her releasing the film online for any and all to view and share.
The Creative Commons License
Initially, Nina released the film under a Creative Commons license that permitted sharing and derivations provided attribution was given and that the resulting works were placed under the same license.
This particular license has numerous benefits insofar as it maintains the link between the work and the creator and ensures that their work is not placed under a restrictive license that runs contrary to the CC one.
Now that Sita Sings the Blues is in the public domain, anyone and everyone can see, share, remix, alter and otherwise do what they please with it without having to adhere to any restrictions. It was a regrettable final step that Nina felt forced to make though.
The Problem
What Nina ran up against wasn’t so much that people didn’t want to use Sita or screen it, but that some of those that did, couldn’t see around the fact that they could without needing to go through the usual legal channels. The result was that they simply decided not to use it altogether.
That represents a significant problem for those of us who wish to see copyright reform. Traditional copyright is too severely restrictive in terms of permitting others to see and use creations but the CC licenses negate certain rights in favour of imposing others. I.e. you can use this film, but you must release your work under a similar license. That can turn a lot of potential users off as they may not share similar views on copyright.
This question of copyright is not unknown throughout the animation universe (pioneer Fred Seibertacknowledged as much a while back) but what is unknown is how to rectify it satisfactorily.
Creators naturally wish to be compensated for their hard work (because everyone has to eat) but the digital era has rendered traditional copyright much harder and prohibitively expensive to enforce. The result is that even the largest corporations fail spectacularly and even then that is after millions are spent on legal fees to fight infringements.
I use a CC license for all original content posted on this blog, but the written word is much easier to attribute than a visual image let alone moving animation or artifacts in the background.
The Solution
With Sita Sings the Blues in the public domain, the regrettable result is that someone could take parts of it and place them under traditional copyright without needing to attribute Nina or even acknowledge her as the creator. Such a possibility harms her as well as her work.
What is needed is multi-layered system where there are various levels of restrictions placed upon works. Those who prefer traditional should receive it, but for a markedly reduced timeframe (say 10 years) with the possibility for a single renewal. Those that wish to let their work spread around a bit could use a CC-esque license but that is simpler than what we have today and with standard attribution methods. Lastly, the public domain should remain as it is because it is too valuable to lose altogether.
Believe it or not, the current system is far more complex than the one I just described and what results is that people cannot be bothered to navigate it. Attitudes play a part, although it is important to note that while plenty choose to ignore CC works because of restrictions, many more simply ignore copyright’s ones altogether; effectively rendering it a pointless idea anyway.
Creators need to be aware of these issues because ultimately, attitudes will change. Networks that decline to screen a film like Sita because of the lack of an “exclusive” license will have not choice; they will either be driven out of business or the playing field will be levelled to such an extent that competition will mandate it.
Creators must be willing and ready to adapt to whatever new system presents itself and to capitalise one it. Sita’s entry into the public domain is merely the opening salvo of the long battle over content that is about to begin.
Does copyright get your goat up or are you out to smite the filthy pirates? Let us know with a comment!
Back in September of this year, a case came to prominence in the UK whereby Disney threatened to sue independent studio, Brightspark over their strikingly familiar animated films. Take a look at the images below from the 1709 Blog (a really great copyright resource):
There’s plenty of similarity isn’t there? One might be tempted to think that there was some sort of copyright infringement going on. However this case is special because it throws up the devilishly tricky line that is the distinction between copyright and trademark.
You see, Brightspark didn’t simply knock out a film in a similar vein to Pixar’s Brave. Nope that would have been too difficult given the time constraints. Instead, they simply took one of their films that was already made, and being sold even, called ‘A Fairy Tale Christmas’ and re-branded it as ‘Braver’. This wasn’t the first time they had pulled such a stunt either. ‘Tangled Up’ was previously released as ‘Britannica’s Fairy Tales from Around the World’.
So what exactly did Disney sue for? Can you guess?
If you said copyright infringement, you’d be right. if you said trademarks, you’d also be right. Huh? I hear you say, aren’t they both mutually exclusive? Well yes, they are. However in this case, Brightspark made the critical mistake of trying to hit two artistic birds with one stone.
Copyright covers artistic and creative works. Insofar as films are concerned, the title cannot be copyrighted. It can, however, be trademarked. Brightspark went one further though and made covers that also bore a bit more than a passing similarity to their more famous inspiration.
According to Wikipedia, a trademark “is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements.” So in the context of Disney’s films, the trademark would not only cover the film title itself but would also extend to the title design as well. Ever wonder why studios have a propensity to use custom typefaces for their titles? Now you know why; they get double protection.
With a fairly solid trademark case (dilution of brand, etc.), Disney also aimed for the jugular and sued for copyright infringement, most likely over the title design as well as the covers themselves.
Long story short, Brightspark lost the case and this week, was ordered to stop producing the offending titles and destroy any remaining stock.
Why is this case important? Well there are no shortage of small studios willing to feed off the success of a major film. Chop Kick Panda is probably the more blatant recent example but in that case, the studio made a solid effort to distinguish their productjust enough to make it legally distinct. This included a similar, but different title and a wholly distinct cover design for the DVD, not to mention the story. At best, consumer ignorance would be to blame for any parent picking that film up, something the studio no doubt relies on for sales.
Brightspark simply tried their hand and strayed a bit too close to the chalk to get away clean for which they are now paying the price. It’s just yet another example of how one needs to be aware of the legal rules in the entertainment game.
Apologies for the unrelated pic but it does highlight the uncertainty surrounding copyright by many people.
Fred Seibert is a guy I have a lot of respect and admiration for so it was quite surprising (and delightful) to see a post from him on the subject of copyright (something that is inexplicably fascinating to me). Fred’s post is actually a discussion/opinion on the news that Republicans in Congress released a paper in which they did a surprisingly good job of analysing the impact that copyright has and some of the myths that surround it.
I won’t go into the details because I want you to read the full post over on a regular haunt of mine, Techdirt. However, I do want to point out that Fred, being in the creative industries that he is, takes a very rational approach to the fact that copyright and the industries linked to it, are rapidly changing.
Rather than stick his head in the sand, Fred details, quite clearly, outlines why increased penalties and terms on copyright protection is detrimental:
….Completely aside from the fact that in this era of expansion of ease of sharing and distribution that more stringent copyright defense is the equivalent of putting up higher and higher anti-immigration fences along our borders, it just isn’t helpful to creative enterprise. Seriously.
And, we’re gathering the forces to realize that all the technological changes in our lives are *demanding* legal change.
A long time ago, copyright was the preserve of entertainment industry bigwigs and specialist lawyers. Today, everyone is at least familiar with the concept of copyright but unfortunately most do not understand the ramifications of the legal rights and restrictions it imposes on the person on the receiving end.
What should you do? One, be smarter about the what’s what in the business you work in. And two, write your congressional representatives. Let them know what you think.
Be an informed citizen and creator. We are in the same era as those people living when the first Gutenberg bible was printed. They lived through the proverbial wringer; now it’s out turn.
