May 6, 2006
What rights?
Guest-blogging for Larry Lessig, Tim Wu asks why movie studios pay for the rights to newspaper stories:
In 1997, the New York Times reported on the story of Tim “Ripper” Owens, who rose from being a lifelong Judas Priest fan to becoming the actual lead singer of Judas Priest...
Great writing and a great story. Good enough to inspire the 2001 film Rock Star, starring Mark Wahlberg and Jennifer Aniston, for which, I am told, Warner Bros. paid the New York Times for the movie rights.
But wait -- what movie rights? According to basic copyright law, and as interpreted by the Supreme Court, the facts of Ripper Owen's life are free to be used by anyone. There is, according to the law, almost nothing to purchase. Reading the story out loud during the film would be a copyright violation, but under U.S. law, little else would borrow the expression as opposed to the facts.
It's a question I've asked myself a couple times in the past few months. The first time was when I saw a booth selling old historical photos at a local arts festival. The company, Photos of Old Amercia, had claimed to have a copyright on each of the photos, even though the woman in charge said she mostly found old pictures from libraries and collections and usually never had any clue who the original photographer was. Some of the photos have been retouched, and Photos of Old America would own the copyright on those changes. However, near as I can tell the company is itself violating the copyright on most of these photos, figuring (correctly) that they'll probably get away with it.
The second time was when I learned about Zorro Productions, Inc., which decades ago bought all the rights to Zorro™, the legendary masked hero first introduced by Johnston McCulley in The Curse of Capistrano in 1919. Apparently if you want to make a play, movie, book or even appearance at a local mall about Zorro™ you have to license the rights from Zorro Productions first. But what rights? The copyright on The Curse of Capistrano expired ages ago and is in the public domain, as is the 1920 Douglas Fairbanks classic movie The Mark of Zorro. That leaves trademark law, which (in theory anyway) only applies so far as consumers might be confused as to the source or producer of a product or service. Raise your hands out there if you knew Zorro Productions, Inc. owned the licensing rights to Zorro™ before now, or would assume when you went to a Zorro™ movie that it would be protected by that company's good name.
Unfortunately, in practice it doesn't seem to matter what the law actually says. By licensing these non-existent rights, powerful companies like Sony Pictures gain a powerful threat over potential competitors, namely the ability to scare away financiers and potential partners with a simple cease-and-desist letter. When it comes to intellectual property, might makes rights is all too often the true law of the land.
Where's Zorro when you need him?
Posted by bug to Intellectual Property at May 6, 2006 2:57 PM | TrackBackIt's very strange that a movie studio would pay a newspaper at all, rather than the person whose life it is. I haven't thought about it very deeply, but it seems to me that a person should have some control over someone making an inspired account of their life. If I go through some trauma and it makes great drama, should anyone be able to make a made for TV movie about it?
I think the problem is that there is no clear line to draw, however. Suppose I give you the entire rights to my life---it wouldn't be very interesting unless you had the rights to my parent's and spouse's life. Likewise, what about a public figure, like a president or famous actor?
In a sense, "your life" is pretty much like "your idea". Yeah, it's yours, but it's firmly situated in a larger context that you cannot claim any ownership over. So, perhaps I wouldn't say that anyone has a "right" to one's life story, so much as authors have a responsibility to not exploit people.
This stuff tangentially touches on some Malcolm Gladwell's recent writings on plagiarism. His New Yorker article that was plagiarized was a biographical piece.
In the US anyway, the control over how someone makes an account of your life is covered by state law, in particular privacy and publicity laws, and aren't covered by copyright at all. In general, public figures get far less protection under such laws since they're presumably newsworthy and such restrictions would violate freedom of the press.
Posted by: Bug at May 8, 2006 3:15 PM