Category: Intellectual Property

Fresh Scholarship on Copyright

For quite some time, too long perhaps, a considerable amount of academic scholarship has trended toward focus on copyright’s negative effects, or at least doubt its positive effects, without adequate analysis of the creative process itself.  When viewing the market, and especially creators, many academic views I have encountered appear to look solely at finished works, how the market interacts with those works, and then to interpolate from these data the creative process that generated the works in the first place.  As such, many attempts to reinvestigate copyright’s role in incentivizing production are incomplete. To quote from a new academic article that will be published in the March 2015 issue of the Harvard Law Review, “Copyright’s incentives/access debate has done a good job recognizing the risks. Yet it has all but ignored the rewards.”

At last, a legal scholar has emerged who has taken a scientific approach to examine the creative process in an effort to better understand copyright’s generative benefits.  Joseph P. Fishman, Climenko Fellow & Lecturer at Harvard Law School, is the first academic to my knowledge who has attempted to express in analytical terms what I believe most artists understand intuitively — that constraint is always part of the creative process, and that copyright’s constraints very likely produce a greater diversity of works than we would see in a market without such constraints.

In his paper, Fishman refutes the often misguided assumption that creative people require “absolute freedom” in order to be more creative.  Artists and creative producers understand that a process without constraints (or boundaries) is not a process at all but a road to madness or failure or both.  A novelist does not arbitrarily pick themes and plot devices and language as she goes, but makes firm choices and either sticks to them or changes them wholesale in the book in order to produce a story that her readers will want to follow.  Most of us are familiar with the Michelangelo-attributed quote about sculpting being the act of “cutting away everything that is not the angel.”  Fishman has quantified that metaphor in his paper titled Creating Around Copyright.

The title refers to a well-established and accepted benefit of patent law that “working around” patents generates the kind of diversity of useful inventions that benefit society exactly as intended.  Fishman’s thesis asks why this same working around principle is not applied to legal scholarship on the subject of copyright.  Why would working around copyright not be as diversely generative as working around patents?  Experientially, creators will tell you that it is.  And now Mr. Fishman has applied legal theory that corresponds with that experience.

Last July, I wrote this post describing how the creative process is always about working around obstacles and that obstacles — legal, financial, physical, logistical, and internal — are often the most important catalysts to producing unanticipated, creative solutions that themselves become the signature elements that give a work its unique or masterful qualities.  Shortly after publishing that piece, Fishman contacted me, still in the early stages of writing his paper.  We spoke for a while, and his article does cite that October post, but what I did not know was that he would produce such a thorough and scientifically-based explanation of what artists throughout history have consistently described anecdotally.

Citing extensive psychological research into the creative process, Fishman demonstrates that there is an optimal balance to be maintained between constraint and freedom.  Too much constraint fails to produce creative diversity, but so does too little constraint.  In order to view the creative process as a science, Fishman rightly describes artistic work as an exercise in problem solving no different from the activities of a scientist or technologist.  We tend to talk about the arts in emotional or poetic terms, but Fishman is right that the process is entirely analogous to problem identification and solution.  As such, the psychological experiments to which Fishman refers throughout his article suggest that a purely “open” process free of constraints produces less creative variation than a process with the right amount and right types of constraints.

Fishman contrasts various experiments in constraint with the path-of-least-resistance approach (i.e. freeform) to creative development; and in a copyright context, a path of least resistance might be the ability, for instance, to riff off any existing creative works without the permission of rights holders.  But Fishman explains, “Following this path of least resistance inhibits originality, and hence creativity, by launching a mimetic approach to problem solving.”  To translate that into a contemporary example:  the world would be more boring with a hundred simultaneously available Sherlock Holmes derivatives than with, say, one or two of those while creators are forced to invent other works.

One analogy that came to mind while reading Fishman’s article was child-raising.  You’re probably familiar either with the concept or the unfortunate experience of the young child whose parents allow him to “express himself” insofar as he is given few if any boundaries.  Those of us who have witnessed this catastrophe in action know that the unbounded child is not only a brat, but is a thoroughly unoriginal brat incapable of producing creative solutions, even if his parents might see genius in his mischief.  But the child who is given appropriate boundaries balanced with appropriate freedoms will produce volumes of creative work though play acting, building, arts and crafts, etc.  As engaged parents, we constantly try to find that balance between constraint and freedom that produces a person capable of creative (i.e. original) problem-solving skills, but we know for sure that the child without any constraints is a recipe for trouble.  It seems to me that Fishman is seeking an analogous balance with copyright law.

The article even goes so far as to create a taxonomy of constraints, identifying seven properties for examination with regard to their generative or restrictive effects.  With the first of these properties, Source, he discusses chosen vs imposed constraints, which is an interesting and important division to recognize.  An artist or group of artists will embark on a project with myriad imposed constraints (time and money always at the top of the list), and will need to pick a number of chosen constraints that actually give shape, texture, and voice to the finished product.  I would add to this taxonomy a third subcategory under Source that most artists probably understand, and this would be innate or internal constraints.   In fact, any artist who looks first at external constraints and not at internal ones may have to consider the possibility that his biggest barrier is that he is not in fact an artist.

 When I was still in college, I spent some time thinking about various artistic media in terms of their constraints, operating from the premise that these boundaries are in fact what define each medium and are, therefore, the source of their power to affect us as we want art to do. After all, when one attends a class in a medium, say photography, discussion begins with the boundaries of the medium, even though we don’t usually think of it that way.  New photo students will begin to consider composition, light, two-dimensionality, color, all of which are boundaries that define a thing we call a photograph as something distinct from, say, looking at the subject of that photograph in real life.  Or to put it another way, a constraint on a photograph is that it cannot make a sound, but a power that it has is that it can make the viewer perceive sound without hearing it and thus offer an experience that re-contextualizes “real life,” which is what art is supposed to do.

This contemplation of boundaries is particularly relevant, I believe, to filmmakers because film more than any other medium trades on a gestalt that what is being experienced is “real.”  Even the most fantastic on-screen world in a narrative film tends to draw viewers into an immersive experience that is more visceral than with other media.  Additionally, the hundreds of dynamic variables, choices, and obstacles that are constantly being managed in order to complete a motion picture ought to make filmmakers particularly cognizant of the generative power of constraint.  The line between an imposed workaround and a brilliant creative choice is so blurry as to be absurd.

In his article, Fishman mentions standup comedy, which is a medium that probably deserves more study than it gets in this context. He writes,  “In stand-up comedy, for instance, the reputational cost of appropriating others’ jokes stimulates continued innovation in developing new ones.”  What’s interesting about that world is that comedians don’t need copyright per se to protect their jokes because it is an unspoken rule that stealing someone else’s material will very quickly ostracize the thief from both fans and peers.  Some might view this as evidence of copyright’s irrelevance, but to Fishman’s point, it should be viewed as an endorsement of constraint’s generative capacity.  The accepted boundaries among comedians force them to work harder to find their own voices, which adds to the diversity of comedy rather than homogenize the medium.

It is heartening to see a legal scholar make the effort to examine the pros and cons of copyright from a creative-process perspective.  It is also about time.  I sincerely hope others in Mr. Fishman’s field take note.

See Working Around Copyright by Joseph P. Fishman here.

With easy access comes easy hypocrisy.

I can’t help but be aware of a disturbing harmonic buzz in my head when I read two stories on the same day that point to a particular digital age dichotomy. Remember Sarah Jones? You might have helped her story go viral. Sarah was a camera assistant, who was killed when she was struck by a train during filming of the Gregg Allman biopic Midnight Rider. I read today that the producers of that now-cancelled project have surrendered themselves to Georgia State authorities to face charges of involuntary manslaughter stemming from the February 20 disaster. But also today, I read that the app Popcorn Time, which makes movie piracy easy for everyone with its Netflix-like interface, is being “improved” for the Android platform. The hypocrisy underlying the concurrence of these stories is typical of our times. The same technology that enables people to know about Sarah, to share her story, even to join the campaign pledging better on-set safety, also allows some of the very same individuals to flick a thumb and start pirating motion pictures that are made by tens of thousands of people just like Sarah.

Here’s a clue:  if you enjoy motion pictures and actually care at all about the well being of the individuals who do the heavy lifting to make those films happen, don’t pirate. It’s a no-brainer. In an effort to justify this behavior, you can quibble all you like about where you think (because you actually don’t know) the money goes; but in general, the money (a.k.a. the project investment) pays for worker wages, union support, insurances, location fees, and, yes, safety procedures and personnel. Unfortunately, accidents and negligence still happens; and it is always the responsibility of managers and fellow crew members to keep checks on our ingrained culture that wants to get the shot at almost any cost. Surely, firsthand accounts of the Midnight Rider production sound like the kind of amateurish crap that goes on all the time and thankfully only rarely results in serious injury or death. So, while I’d certainly stop short of saying piracy kills filmmakers, I will not hesitate to say that, in general, economic stability is better for maintaining worker safety in every industry. And we have yet to fully see the effects of piracy on this industry.

We have a bad habit of talking about piracy with regard to finished and popular filmed entertainment. Partly, this is because it suits piracy’s supporters to say things like “XYZ tentpole made a gazillion dollars, so piracy does no harm and probably even helps.” But for every Avengers and Game of Thrones out there, there are hundreds or thousands of small and medium budget pictures being made, many of which are the films most treasured by serious fans. 

Digital-age utopians love to extoll the virtues of independent, guerrilla filmmaking; and when they do, it’s a little like listening to middle-class white kids gripe about the struggle of some oppressed minority. It’s both true and utter bullshit at the same time, especially if the self-appointed proponent of indie filmmaking is also pro-piracy. The reality is none of these people has a clue about the very specific set of skills Sarah Jones had developed and was developing in her role as an AC. Those skills don’t come cheap, and neither should they. But among the indisputable ill effects of piracy is that it exerts economic pressure on the industry as a whole, and it will always be the small to midsize, indie producers who will present the earliest symptoms of the diseases caused by this pressure. These symptoms may include lower standard wages for skilled workers and/or shortcuts around various production practices that affect general working conditions, including safety. 

Yes, Sarah’s untimely and entirely avoidable death should be a wake-up call to production teams everywhere to remind themselves that no film is worth unreasonable risks to a crew member’s safety. But as this tragic story also draws attention to the many otherwise invisible hands behind the scenes, perhaps consumers ought to consider their responsibility to support a sustainable industry rather than casually line the pockets of poachers who do absolutely nothing.

Your rights are in my freedom.

It’s another Independence Day weekend, and I can’t help but notice that we find ourselves this year grappling with some unfortunate consequences of liberty run amok.  We’ve got open-carry nuts sporting assault rifles in department stores and coffee shops to prove how free they are; and we’ve got the supreme court granting business owners the right to discriminate against employees on the grounds that said discrimination can be considered the free exercise of religion.  These real-life manifestations are borne in the logic of narcissism in which the self-righteous individual believes in liberty that is not bound by the limits imposed by the rights of others. It is the same logic that says legalizing a same-sex marriage is an infringement on religious exercise.  And like it or not it is the same logic that attempts to absolve many sins of the digital age in the name of free expression.

It sounds good on paper, but in reality, freedom without limits isn’t freedom for anyone but the powerful, whether that power is derived by wealth, political influence, technological prowess, or violence.  On July 1, a debate was held at the American Enterprise Institute on the matter of intellectual property rights during which Mark Schultz of the Center for the Protection of Intellectual Property at George Mason University said the following:

“If our only understanding of liberty is if I get to do whatever I darn well please, it is a five-year-old’s understanding. A grown-up understanding of liberty is ordered liberty, competing claims that need to be reconciled through a system.”

The underlying question in that debate was whether copyrights are a right or a privilege, but it is instructive that even in this academic forum on intellectual property, Schultz feels the need to affirm a definition of liberty that (he’s right) ought to be obvious to any adult. In short, liberty is not all about what we want.  One of the reasons I began writing about digital age issues and intellectual property is that many of the arguments used to rationalize negative social behaviors (e.g. piracy) are First Amendment arguments; and it seemed to me the right of free expression was being stretched beyond reason in ways that mirror the aberration of free religious exercise we saw this past week with the Hobby Lobby case.

Do women have a right to comprehensive health care, including contraception?  Yes, according to federal law, they do; but the supreme court just said they kinda don’t, that this right has been recast as a privilege to be offered at the discretion of an employer based on his personal moral code.  Many of us are hopping mad about this, and we should be, both in practice and in principle.  It is quite simply a grotesque distortion of the free exercise clause that sets a precedent begging for abuse by people in positions of power over individual workers.

But what about my colleague Mark Schultz debating copyrights with academic libertarians like Jerry Brito of the Mercatus Center at George Mason University, who want to recast this longstanding right as a government granted privilege?  Copyright is less emotionally charged (and ultimately less critical) than the health of American women, but the false logic being applied is very similar, as would be the consequence in that the wealthy and powerful would ultimately win another victory over individual workers.

Central to the arguments made to eliminate or severely weaken copyrights is a claim that the rights of individual authors limit the right of free expression.  This is similar backward reasoning to “your right to contraception violates my right of religious expression,” and again it is an idea based in narcissism and backed by corporate interests.  We all are entitled to the right of free expression and the right of intellectual property protection, if we want the latter; so why give up either right when we can have both?  It’s as much a false dichotomy as religious freedom vs birth control.  It’s what happens when we can’t tell the difference between freedom and a free-for-all.  And in a free-for-all, the biggest bullies usually win.