Copyright, a right to protect but not restrict
Applying copyrights to productions from the world of media, cinema, technology or pop culture is a two-sided sword. Imposing such rights where they are uncalled for raises an issue particularly because the production of new and creative works will be hindered by that. There is no flaw in building up on what precedents have invented or built. One of the main arguments why copyrights can be problematic is the fact that such regulations somehow violate the First Amendment as well as chain free expression and limit boundless creativity.
Historical Background
Historically, the first ever copyright law was established in the 16th century. It was outlined by terms of protection describing the rules of ownership, of the copyright of a specific work, for its author to abide by. The Association of Research Libraries explains that the law then entitled the author to fourteen years of ownership, then to another fourteen years if the author was still alive, until the work was bought; and that’s when the work-producer no longer has any power over it. The idea was to employ terms of copyrights to avoid monopoly by book vendors once the work is purchased (Intellectual Property Rights, 2006).
It is assumed that protecting one’s creations somehow guarantees her/his incentive to create more innovatively. Knowing that one’s ‘belongings’ — in this case the fruits of one’s labor — are protected by the law is like knowing that one’s kids are home safe and can go along running errands. Advocates of copyrights argue that imposing copyrights allows for the protection of what belongs to the creator. Advocating for copyrights is also somehow advocating for a sense of possession of that specific invention or cultural property.
“If others can exploit their work for personal benefit without contributing to its production, creators have less of an incentive to create,” (Packard, 2013, p.162) and that decrease in incentive can be very dangerous for development and evolution because it is through those that humankind makes breakthroughs and discoveries that change the world. One of the two very important key aspects of the aforementioned is first of all the exploitation in the name of benefit which raises the question of transforming cultural data into economic revenue. Why should the motive for producing culture be making money out of it? The other one is ‘contributing to its production’ which is very important because sometimes individuals simply re-produce the same work — which is unacceptable. Building up on a previous masterpiece, giving it a new context and adding value to it is why copyrights shouldn’t restrict any individual one starting off from an already produced work. That’s one of the way in which copyright hinders innovation.
Although copyrights do impose a sort of property ownership at the level of intellectual production, the former aren’t permanent ones. “Copyrights aren’t permanent in the traditional sense; they are actually limited monopoly rights” (Packard, 2013, p. 162). Which brings back the notion that the mentality of applying and understanding the proper use of copyrights is emphasized by staying away from only economic benefit off the use of another producer’s creation to build up on.
It is the contributors of the production of a certain work that are qualified for copyright protection. (Packard, 2013, p. 168) Works that that fall under copyright protection include literature, music, image, video, software or really any product created by a digital producer. There a three components that qualify a piece of work to be protected by copyrights: being original, being minimally creative, and being fixated in a concrete medium. (Packard, 2013)
Copyright and the media
In an age in which mass media is becoming an increasingly prevalent part of one’s daily life, “the industries that create content — Hollywood, the publishing industry, and the advertising industry began to push for increased protections of intellectual property rights” (B, 2014, p.16). The simple reason behind that is the distribution of media products to more and more people resulting in ever-growing investments in “content creation, including, among other things, the assembly of vast teams of people to create movies, television shows, advertising campaigns, and the like.” (Balkin, 2014, p.16)
Such technologies impose methods of control to limit democratic cultural participation. Hence, “free speech values — interactivity, mass participation, and the ability to modify and transform culture — must be protected through technological design and through administrative and legislative regulation of technology, as well as through the more traditional method of judicial creation and recognition of constitutional rights,” (Balkin, 2014, p.5) as opposed to being restricted by regulations like copyrights.
But then how can one really treat creativity, innovation, and free expression — manifested in countless ways and onto several platforms — be considered as property that needs law restriction? “The whole point of intellectual property law is to bestow monopoly rights in certain forms of expression, subject to safety valves like fair use and limited times. In fact, in the United States one can even get injunctive relief against prospective copyright infringement, which flies directly in the face of the basic presumption against prior restraints on speech.” (Balkin, 2014, p.15)
Sharon Givoni is the lawyer and author of Owning It: A Creative’s Guide to Copyright, Contracts and the Law — a book published by Creative Minds Publishing which examines:
The protection of your designs, trade marks, copyright, reputation, confidential information and other intellectual property (IP); how not to inadvertently infringe someone else’s rights; contract basics; licensing; how the law applies online and to certain aspects of social media; and much more. (Sharon Givoni Consulting)
Copyright case studies
The main reason why copyright is such a paradoxical issue is because its basis aren’t a hundred percent concrete. There are some cases that simply do not apply as an infringement but also aren’t beyond it. That’s called the grey area of such regulations; it is where the controversy lies: is this a reproduction accepted or is it an infringement? How much of an image or exactly which of its components can be redone outside of the copyright law infringement?
- Tom Forsythe’s Food Chain Barbie series of photographs
In an attempt to critique women being objectified in association with Barbie dolls,“photographs were sold as postcards and prints over the Internet and generally depict one or more nude Barbie® dolls juxtaposed with vintage kitchen appliances” (Sharon Givoni Consulting, n.d.). This example is one where an artist employed iconic figures to transmit a social phenomenon. No matter what his intentions where, this series of photographs lead Forsythes to court, for a case he lost. Eventhough the artist didn’t make much money out of this, he was still sued by “Mattel for copyright infringement and a host of other “legal sins” such as trademark infringement and misleading conduct” (Sharon Givoni Consulting, n.d.)
Initially, the court ruled the case as ‘fair use’ because of the fact that the images couldn’t affect the market demand for Mattel’s products. The ruling judge then changes opinions because the conditions (lighting, colors, design, position, etc.) in which te photographs were taken serve to create a context for Mattel’s copyrighted work that transform Barbie’s meaning”.
2. Paramount Pictures’ Leslie Neilson’s face juxtaposed over a pregnant femal’s body
Annie Leibovitz, the photographer of nude Demmie Moore which made that issue of vanity fair a best seller, took her case to court “charging that the ad constituted copyright infringement” (Richardson, 1996) when a Paramount photographer photoshoped Leslie Nielsen’s face onto a pregnant model’s body for an advertisement of the movie Naked Gun.
Considered as a parody of the original work, Paramount’s photograph was let off the hook in the name of fair use and in accordnce with the humourous genre of the film advertised.
3. Cariou versus Prince
Prince’s “Canal Zone” series of paintings (2008), including photographs by Cariou from his 2000 book Yes, Rasta (Powerhouse), were sent to court for accusation of violation. Prince was said to have made enough changes to bring his case away from copyright infringement and into ‘fair use. “The judges at the Second Circuit court decided that the case would hinge on whether a reasonable observer would find Prince’s works to have been transformative, and thus protected under fair use law” (Boucher, 2014).
Who is that ‘reasonable observer’? It is unasnwered questions like those that keep intellectual property in the grey area.
Better off without copyrights
“Copyright was originally designed to restrict publishers from exerting too much control over information; today it constrains individuals from creating new works” (Killing Creativity, 2004). Copyright shouldn’t be used for the purpose of making income. It should instead be applied to protect the originality of a person’s creations, without obstructing the space that other people need to be innovative themselves. Reducing such regulations is not an invitation to steal others’ works but rather to ensure a wider scope from which a content-creator can get inspired in order to generate something new. “Making a distinction between freedom of artistic expression and criticism of a cultural icon and copyright infringement” (Sharon Givoni Consulting, n.d.) are two different things that are seperated by a very thin line, hence it is essential to treat intellectual property cautiously.
Sources
Association of Research Libraries. Copyright timeline: a history of copyright in the united states. Retrieved from http://www.arl.org/focus-areas/copyright-ip/2486-copyright-timeline#.Whngr9KWZdh
Balkin, J. M. (2004). Digital speech and democratic culture: A theory of freedom of expression for the information society. NYUL rev., 79, 1.
Boucher, B. (2014, March 18). Landmark Copyright Lawsuit Cariou v. Prince is Settled. Retrieved from http://www.artinamericamagazine.com/news-features/news/landmark-copyright-lawsuit-cariou-v-prince-is-settled/
Killing creativity. (2004, April 17). Retrieved November 29, 2017, from http://www.economist.com/node/2592996
Packard, A. (2013). Digital media law (2nd ed.). Chichester: Wiley-Blackwell.
Richardson, L. (1996, December 19). A Parody of a Pregnant Actress Stands Up in Court. Retrieved from http://www.nytimes.com/1996/12/20/nyregion/a-parody-of-a-pregnant-actress-stands-up-in-court.html
Sharon Givoni Consulting. (n.d.). The Fine Line between Copyright Infringement or Artistic Creativity. Retrieved from http://www.sharongivoni.com.au/articles/ProPhoto-ArticsticCreativity.pdf
