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Copyrights and Copywrongs

Interview with Siva Vaidhyanathan

By Carrie McLaren | Issue #20

Thomas Jefferson would have loved Napster," Siva Vaidhyanathan has argued. And we’re inclined to trust him on this, because he has been tracking copyright law since its dawn.

Vaidhyanathan is the author of the excellent book Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York University Press, 2001) and is assistant professor of Culture and Communication at New York University. I talked to him this past summer. --Carrie McLaren

Stay Free!: Copyright gives creators exclusive rights to their works; historically, at least, this was to promote growth in the arts and sciences. In Copyrights and Copywrongs, you discuss how expansions in copyright law have, ironically, restricted public access to arts, ideas, and new technologies. But although you see copyright as a problem, you did make one argument for it. You said if there were no copyright laws, then authors would never write novels. They’d just write screenplays, because that’s where the money is.

Vaidhyanathan: I don’t think we need copyright nihilism. What we need is a flexible, humane system, much like we had before 1976.

Stay Free!: What happened in 1976?

Vaidhyanathan: A couple of things. Congress decided that the term of copyright protection should not be fixed--that it should be life of the author plus 50 years. Before that 1976 law, the term of copyright was 28 years and if you cared enough you could renew it for another 28 years. That’s reasonable. Most copyrights were not renewed. When they weren’t renewed they became our property--they entered the public domain and we could use them. The 1976 law also made copyright applicable to all expressions fixed in any tangible medium. That means that every email you write is copyrighted, every scribble on paper is copyrighted. There’s no registration process. That violates the deal. The deal with copyright is that we grant a temporary monopoly in order to allow the publisher to charge monopoly prices for a limited period of time. And what we get by giving the publisher that right is access to the work. By 1976, Congress has decided that trade was irrelevant.

Before the digital world emerged, we agreed to allow the government to regulate copies, but we certainly didn’t agree to allow the government to regulate reading, because reading a piece of material or listening to a song or watching a film was very different from making a copy of it. With digital works, you can’t help but make a copy when you access something. To read something online is to make several copies of it. So by agreeing in 1976 to such a high level of regulation over copying, we’ve allowed government, and, by proxy, corporations, to regulate what we read and what we see.

Stay Free!: It’s funny. You think of corporations as being so antideregulation, and with copyright, it’s the complete opposite.

Vaidhyanathan: Corporations are always pro regulation when it’s to their benefit. Copyright law has been way below the public’s radar largely because this stuff seems so complicated and so irrelevant to daily life, but I think that’s changing.

Stay Free!: Napster really raised the awareness level, although I’m not sure that’s all good. I’m on an email list with lots of teachers, and when, say, a student uses a popular song in a video they’ve created, some teachers will refer to that as stealing.

Vaidhyanathan: But when many people say they’re stealing, they’re joking. They giggle when they use peer-to-peer systems to download songs...

Stay Free!: I think you can blame part of the problem on language. Where did the term "intellectual property" originate?

Vaidhyanathan: In the late 1960s, the phrase started making its way into law school course catalogues. Within legal discourse, "property" does not mean what it means in popular discourse. So it wasn’t a real problem until the phrase caught on with the public. When that happened, it allowed experts call the shots. Jack Valenti [president of the Motion Picture Association of America] will say, "This is theft, this is theft, this is theft," because we’re talking about property. You could then use metaphors like "If I lock something up in my garage, you can’t come in and take it." Or, "You can’t break into my house to watch television."

Stay Free!: But those arguments are pretty easy to shoot down, don’t you think? Because real property isn’t like copyrighted material. If someone takes something from your garage, then you don’t have it anymore. But if, say, a store plays your song, you don’t have any less of a song.

Vaidhyanathan: Unfortunately, the property metaphor is addictive. Whenever we debate people who belong to the content world, we end up having to work within the metaphor. Now I tend to respond by saying, "You’re not talking about real property, you’re talking about a government-granted monopoly." And you have to get back to that point that copyright is not natural, it’s something that we the people decided to give to a certain class of people in exchange for something. And so if we’re not giving what we promised to this group of people, we need to ask whether the system is properly balanced.

Stay Free!: Dr. Seuss went to court in the 1950s to stop someone from merchandising dolls based on his characters. He lost--twice--because the courts said that when he signed away the rights to publish the cartoons, he signed away all his rights. When did the law start recognizing that there were separate rights involved for merchandising and licensing?

Vaidhyanathan: I don’t know when exactly, but recognizing that there is a bundle of rights is essential in protecting artists. I write a column for MSNBC, and they’re notorious for taking too many rights away from writers. They sent me a contract that claimed for them all rights in all media "in perpetuity throughout the universe." I didn’t like that so I changed it to "first digital rights." That means I can put anything I write for MSNBC into a book.

Stay Free!: And they agreed to that?

Vaidhyanathan: They agreed because it wasn’t worth the fight: I’m not worth that much money to them.

Stay Free!: A lot of companies have policies where if you don’t agree, they just won’t let you do it.

Vaidhyanathan: Yeah, but you’ve got to ask anyway. I mean, when my cable modem company came in to install my cable modem there was a provision in the contract that said I cannot act as a server. Well, what does that mean? That I can’t have stuff available for other people to pick up? I can’t devote a folder to a peer-to-peer system? So I just crossed out that section, initialed it, and signed the contract. All contracts are negotiable. But people have to recognize that they can do that. And really I think that’s the source of artists getting screwed in this system. They take legal language way too seriously.

Stay Free!: But what about the online "clickwrap" contracts that never give you a choice? You either click "I agree" or can’t proceed. You can’t alter them.

Vaidhyanathan: Those contracts aren’t enforceable at this point. Corporations are trying to change the law state-by-state to make these clickwrap and shrinkwrap licenses enforceable. [Shrinkwrap licenses are those that consumers automatically agree to when they break the shrinkwrap on a software package.] They’re trying to make it so that consumers have absolutely no rights to complain about the use of a clickwrap or shrinkwrap product. It’s the biggest threat to consumer rights in thirty years, as far as I’m concerned.

Stay Free!: Because if you buy something and don’t like it, or if it doesn’t work on your machine, you can’t take it back.

Vaidhyanathan: Exactly. And what’s happening, especially with software, is that you can’t make fair use of it. If you go to the Billboard Music site, they have a special section full of research on the music industry. But to get in, you have to sign a contract saying that you won’t report any of the information. You can’t distribute it publicly, which for someone like me, makes it useless.

Stay Free!: So, when you see those contracts, do you go ahead and just not worry about it?

Vaidhyanathan: Yeah, for the most part. I figure: bring it on, sue me. It would be fun to fight one of those contracts in court.

Stay Free!: Is it legal to force people to waive their free speech right? Fair use is basically a free speech issue.

Vaidhyanathan: Unfortunately, the courts lately have decided that free speech doesn’t matter in the face of copyright. It’s one of the reasons that the Supreme Court is now considering copyright cases because it is concerned about the conflict with the First Amendment.

Stay Free!: In court decisions on copyright from as late as the 1980s, there’s a ton of language about the public interest. It seems like there’s been a huge change within a short period of time.

Vaidhyanathan: Definitely. I have to blame Reagan because it’s so easy to blame him. But there’s a whole generation of judges who came to office in the 1980s who are fundamentalists on issues of privatization and private control, but not privacy [laughs].

Stay Free!: Let’s talk about electronic gates. If someone scans a picture that’s in the public domain, he can claim a copyright on it. What’s the reasoning there?

Vaidhyanathan: If you go into a movie store right now and buy the DVD of Birth of a Nation, which has been in the public domain since the 1930s, you’ll find that it’s protected by digital rights management technology so you can’t make copies of it, even though it’s in the public domain. You can’t make fair use of it. You can’t take pieces of Birth of a Nation and satirize it, make fun it, chop it up, or make a scholarly work out of it.

Stay Free!: Could you if you had a videotape of it?

Vaidhyanathan: Yeah, but not a DVD. Basically, they have copyright protection for technological work rather than creative content.

Stay Free!: Are they saying they’ve improved the quality of the original? That they’ve done something to make it different?

Vaidhyanathan: They’re not really making that sophisticated an argument. They’re saying if you don’t give us this ability to legally protect digital rights management technologies, we’re not going to give you DVDs.

Stay Free!: What about photographs? If a company uses a scanner to make an electronic version of an image, it gets a copyright on the electronic version. It seems like that’s a great price to pay, just for scanning.

Vaidhyanathan: The photograph is still in the public domain if you can get a hold of it. But if it’s in Bill Gates’s storage vault, the only thing you can get is the digital form. So what they’ve done is take all of these works in the public domain, make the analog versions unavailable and then sell only the digital versions, which are then highly protected.

In the next 30 years, none of us is going to have working VCRs. The movie industry is phasing out VHS. Soon we won’t have Super 8, and we certainly won’t have the original celluloid version of Birth of a Nation--all we will have is the DVD. And that means that we no longer have it in the public domain.

Stay Free!: What about moral rights? [Moral rights refer to the artists’ right to control the fate of their works and how they’re used.]

Vaidhyanathan: Media companies in the United States don’t want moral rights; the last thing they want is to have their directors or actors to have power over what they do to those films. But, at the same time, there is strong public support of it in Europe and perhaps in the developing world too. I would love to see the entire world give up on the question of moral rights because I think the moral rights approach becomes censorious as well.

Stay Free!: What about that Monty Python case? ABC licensed Monty Python episodes but then edited the hell out of them and ran them. So Monty Python sued and won.

Vaidhyanathan: The Monty Python case is the example of moral rights creeping into American law.

Stay Free!: So what’s wrong with that?

Vaidhyanathan: I think we need to demystify the notion of creation. There’s nothing magical about it and there’s nothing sacred about it. This was a commercial transaction and the folks at Monty Python signed a contract with ABC and at no point (these were Oxford and Cambridge educated guys with major lawyers) did they negotiate the terms of the contract in such a way that prevented ABC from doing what it wanted to do. They should have foreseen that. After the fact, they started complaining.

I think the judge made a very poor decision by backing Monty Python in that case. There’s no bigger Monty Python fan in the world than me, but I don’t think we should let our critical faculties get in the way of judgments about what sort of copyrights systems would be best, because the next people who try to do that are not going to be as funny or as talented as Monty Python, and they’re going to have way too much control over the use and reuse of their work. There are ways to build artist protection into contracts, and I think that we need to strengthen the position of artists in the negotiating process, but moral rights is not the way to do it. The best way to do it is through collective bargaining.

Stay Free!: You mentioned in your book that in 1909 the law created a new definition of authorship, corporate copyright, and that was a radical change. What effect did this have? And how did it affect the idea that copyright was an incentive to create?

Vaidhyanathan: Here’s the interesting thing about the incentive to create. We don’t actually know that copyright works as an incentive to create. We just assume it. It’s not a bad assumption, but it’s almost impossible to test. If the hypothesis is no one would ever write anything if there were no copyright laws, well, that’s actually pretty easy to toss out with one counterexample, and the best counterexample is the Bible, which people put a lot of time into with absolutely no copyright protection. We got copyright soon after the printing press. But the world is filled with creative material that was generated before the advent of copyright. You know, Homer didn’t have copyright.

Stay Free!: And we all know dozens people who write with little or no possibility of getting paid.

Vaidhyanathan: Exactly. Look at the development of the internet. Most of the content on the internet was not done for profit: it was done for love. But the incentive is more defensible by saying that it’s about the incentive to distribute, the incentive to market. It’s easier to argue that nobody would make a full-length feature film and distribute it to hundreds of thousands of theaters throughout the country if there were no faith in the copyright system. So, if we agree that it’s a good thing we have the Godfather and Star Wars in our lives, then it’s probably a good thing that we have copyright protection. If copyrights disappeared tomorrow, there would still be poetry but there wouldn’t be Star Wars.

As for the 1909 law, newspapers and magazines didn’t have copyright protection. Because copyright was only something originating with the author, you couldn’t copyright an entire newspaper or magazine in the name of the newspaper or magazine. Because of this, publishers lobbied for a provision that you didn’t have to be an individual writer to enjoy copyright protection, that you could be a corporation. It was purely meant to deal with compilations and encyclopedias and newspapers and so forth, but you still had to file for copyright protection. Even after this passed, newspapers didn’t file for copyright protection (because newspapers weren’t worth anything on day two), but magazines and encyclopedias did. This little tweak of the system ended up growing into the dominant factor in American copyright. Now most works that matter are copyrighted in the name of corporations.

Stay Free!: If the incentive is to market and distribute, then that makes sense.

Vaidhyanathan: Exactly. I don’t know anyone arguing that we should move beyond that. One of the problems with moral rights is that it undermines the corporate power. All corporations aren’t necessarily the bad guys in these situations. You know, if I were to write an encyclopedia article, and the publisher felt that I had done a very bad job and needed to substantially rewrite it, it would probably not be a good thing for me to have moral rights to be able to veto editorial changes, because I’m not assuming the risk--the marketing risk and the risk for libel and the risk for copyright infringement. The publisher is.

Stay Free!: So basically you’re saying that it shouldn’t be problematic for a company to hack up somebody’s work, but there should be other mechanisms for rebalancing the powers between them. That reminds me of your chapter on blues artists. A lot of white people made millions by appropriating the work of poor African Americans. But the blues artists were also using everybody else’s work--the idea that a tune or lyric was owned by someone was antithetical to how they made music. Don’t you think it’s ridiculous that these guys didn’t get paid at all? But you’re saying the money shouldn’t come through copyright. Right?

Vaidhyanathan: Yes. They got ripped off because they didn’t have any bargaining power; the situation was totally skewed for white people. But I think it’s important to consider that separately from copyright. Copyright should not be where we look to fix this problem. The business practices of labels like Chess were reprehensible. They hired people like Willie Dixon and paid them hourly to produce this incredible music. They got Willie Dixon to produce a lot of his songs as works for hire, which is one of the things that emerged from that 1909 change in corporate copyright. So they controlled all the rights to this stuff and Dixon got pennies. Ron Howard has the same labor arrangements with the companies that distribute his films as Willie Dixon had with Chess. The difference is that Ron Howard has negotiating power. Chess took advantage of Willie Dixon because he was black, because he was poor and uneducated. But he wasn’t uneducated for long. He ended up learning all about copyright law, taking control of his career, and his later works were all copyrighted in his own name, which is why he then had power in the marketplace. But it wasn’t just black artists that got screwed by record companies. It’s just that there have been a handful of folks who’ve gotten lucky--the Elvises and the Madonnas--and they’ve been able to then bargain from a position of strength so that Elvis’s RCA contract was a hell of a lot better than the exploitative contract he had with Sun. Madonna’s contract with Time Warner, the second contract of her career, basically gave her complete control over her creative life. There just aren’t that many artists who get to that bargaining position. But, yes, Madonna is going to take pieces from the well of gay culture and move them into her own work and make a lot of money off of it, whereas the people who invented vogueing don’t make a dime. And Elvis is going to make a lot more off of R&B than Big Mama Thornton or Son House, but that doesn’t mean we want copyright law to prevent either Madonna or Elvis from doing what they do.

I think we just need to be able to recognize the roots of this creativity, and if we feel like it, reward the people who were doing it before them. People will say, "Wow, if Keith Richards really likes Muddy Waters and they named the Rolling Stones after a Muddy Waters song, maybe I should listen to Muddy Waters." The system is not a zero sum system by any means.

Stay Free!: What did you think of that Vanilla Ice case?

Vaidhyanathan: Vanilla Ice ended up paying royalties to Bowie and Queen . . .

Stay Free!: Or if, say, MC Hammer hadn’t worked with Rick James on "U Can’t Touch This."

Vaidhyanathan: On both of those songs, the sampled work was so extensive that it didn’t really work the way most sampling works. I think that would be an interesting case to decide whether that was fair use or not, and I would have liked courts to have actually considered the nuances of those situations. I tend to think that artists should be able to borrow freely from their predecessors. If anything, Hammer helped revive Rick James sales. People said, "Wow, I really like that Rick James song." So how much was Rick James harmed by that if Hammer hadn’t cleared it? I don’t know. But that’s the sort of question that a court should have been able to answer. But it never really got to that point because the law basically shut down all sampling without permission, and I think that was a big mistake.

Stay Free!: Film director Davis Guggenheim has said that, 10 years ago, if a copyrighted work-- say, a poster or a concert T-shirt--appeared in a film and was recognized by the common person, the filmmaker would have to get it cleared. Whereas today, if something appears in a film and it’s recognized by anybody, then it has to be cleared. How did this come to pass, and what’s the logic behind it?

Vaidhyanathan: I don’t know if that 10-year assessment is correct, but copyright holders have become more vigilant, so judges have reacted on their behalf. The common law is based on habits, and so, if the habit in the industry and in the culture is to clear everything, then judges will go along with that. There’s no wall that stops them from maximizing this practice.

Stay Free!: Well, in the 1980s, Coca-Cola owned Columbia pictures. And Columbia used to make movies that associated Coca-Cola products with good things and Pepsi with bad things. They couldn’t do that now.

Vaidhyanathan: Well, when you’re dealing with commercial speech and product placement, that’s a whole different set of questions.

Stay Free!: But you have to get products cleared in the same way you would artwork.

Vaidhyanathan: Yes. Of course, with commercial products, you’d rather have the companies pay you. The money flows the other way in that case.

Stay Free!: Unless you want to use the product in a negative light.

Vaidhyanathan: Let’s say you’re making a film about McDonald’s misdeeds around the world. You could certainly use the images of McDonald’s because you have a fair use right to do that; you’re commenting on it. McDonald’s would still sue you--and they’d probably sue you for libel in England, where they might actually win. What we’re dealing with in most of these cases is the "found art" around us--the signs and symbols we live with all the time. You look around your room, and there are very few things within your field of vision that don’t carry some sort of intellectual property protection, either trademark or copyright. And, for that reason, it’s very hard to try to represent reality in any way.

In the movie 12 Monkeys, there was a chair that wasn’t recognizable by laypeople, but the guy who designed it recognized it and got an injunction on the release of the film. This is the sort of excessive level of protection that can only be considered extortion. I mean this guy was not going to make more or less money because the chair happened to be in the movie scene. But he shut down the release of a major studio motion picture to shake them down for money. If the level of protection is going to be that high, then there will be a lot of problems for artists. The same thing happened with a piece of artwork used in the movie Devil’s Advocate. The question we should be asking is whether we want to have the sort of culture that is so allergic to using the found symbols around us.

 

Stay Free!: Wasn’t the artwork in Devil’s Advocate a religious piece? The sculptor converted to Catholicism while making it, and it was used in some sort of satanic, sexual way.

Vaidhyanathan: That may be true, but that is irrelevant to a copyright claim. The nature of the work doesn’t matter. The rights of the artist in terms of reasonable representation of his or her thoughts--those don’t matter in the United States. They matter in Europe.

Stay Free!: Because Europe has "moral rights." I’m going to play devil’s advocate here—har, har. My friend Jem was telling me about an influential book by photographer Robert Frank, The Americans. It was pretty radical at the time--1959--because the photos were of common people and portrayed America as a sort of grim, alienating place. Well, Don Henley took some of Frank’s photos and made them seem to come to life in one of his videos; but instead of sharing Frank’s ambiguous tone, Henley turned them into a real celebration of America. There was no direct reference to Frank, though, nothing to indicate that the scenes were borrowed. So then everyone sees Don Henley’s video on MTV, but no one sees Frank’s photographs. In this instance, don’t weak copyright laws--which is what you are arguing for--give more power to companies and reduce the power of the artist?

Vaidhyanathan: Companies with big megaphones are always going to have more power. Copyright is not the right tool to alter that formula. Basically, Don Henley built on the work of a previous artist--altered, commented, and perhaps changed the meaning, but that’s what critics do. That’s what Alice Randall, the author of The Wind Done Gone, did to Margaret Mitchell’s Gone with the Wind. Whether one party has more cultural power or more financial backing is not something the law should be concerned with. The law should never work to lock in the previously conceived work and stifle the production of the second work. Now, all too often we’ve seen the second taker [Don Henley, in this case] make quite a bit more money than the first artist, but those are the breaks. We saw Elvis make more money than Big Mama Thornton. I mean, there are a lot of complicated reasons for that, but I don’t think anyone should argue that Elvis should have been prevented from building on the work of rhythm-and-blues producers, especially since the next generation of creators, including Jimi Hendrix, could build on the work of Elvis. Nothing prevents you from building on the work of Elvis--except that now the Elvis estate has such high levels of protection over all of its signs and symbols.

Stay Free!: So you’re saying that if copyright had prevented Henley from appropriating Frank’s photos, then it would also prevent someone from appropriating or criticizing Henley’s video. But would you distinguish between commercial speech and noncommercial speech in this case?

Vaidhyanathan: Not really.

Stay Free!: You could say Don Henley could use Frank’s photos but not for profit.

Vaidhyanathan: But what is for profit? If you’re putting a video on MTV, in a way it’s an advertisement, but in a way it’s a product in itself. Music videos are an art. When you’re dealing with cultural products, the line between commercial and noncommercial speech is almost indistinguishable. What about Frank’s book? That was being sold for a profit.

Stay Free!: Yeah, yeah, I see your point. But let’s try another example. Nike uses a significant part of a song by punk rockers Le Tigre in a commercial. In your ideal world, would they be allowed to do that?

Vaidhyanathan: Well, that is clearly an advertisement. I take it back. Sometimes the line is clear between commercial and noncommercial use of artwork, and when that line is clear, different rules apply. The important question here is the implied endorsement of the product. Certainly no artist should be forced into giving the impression of an endorsement where none exists. In addition, artists should expect to receive reasonable compensation for the use of substantial portions of their work in commercial settings. So Nike should do what it does--ask permission and pay substantially for the rights to a song. But my point is that the copyright holder is rarely the artist herself. Therefore we should not romanticize copyright as an author’s right. It starts out that way, but that’s not the whole story.

Stay Free!: Incidental music can’t be played in a movie. What are the music owners’ arguments to prevent this?

Vaidhyanathan: They want the ability to license music for specific places. If you were allowed to use music incidentally in films, then there would be no market for licensing. You couldn’t get Bette Midler singing the theme from Beaches as an exclusive product because Bette Midler’s song could be in any movie. I think courts should be sensitive to the difference between documentaries and produced films. Music is around us all the time, so what are documentaries supposed to do?

Stay Free!: Do you know of any filmmaker or artist groups fighting this?

Vaidhyanathan: No. I know that journalists are very concerned, though. Journalists are supposed to be able to take a snapshot or pan a particular scene to cover the news. If you went right now with a video camera and scanned Times Square, you would pick up CBS logos and NBC logos because they both have big billboards in Times Square. But a few years ago, CBS videotaped Times Square and digitally replaced NBC’s logo with its own. When broadcasters start subbing in logos, perhaps they jeopardize their right to use incidental material.