Breaking the bargain: copyright extensions violate “moral rights”

By Nina Paley and Karl Fogel

When the copyright industry lobbies for extensions to already-long copyright terms, they always present it as a way of giving the artists of the past their due — as a further protection of the “moral rights” that artists have in their creations.

But consider this: many artists of the past were forced to sign over their copyrights in order to work at all. They may have taken comfort in the fact that copyright would expire after a set time, and in knowing that people would eventually be able to share their work freely. Today, when copyright terms are continually extended, we should stop and wonder if these extensions go against the wishes of the works’ dead creators. Few artists of the 1920’s or 30’s had the option of saying, “I want people to share my work”, but they at least knew that copyrights would expire after 28 years — if the terms had been left alone, that is — and this may have made a temporary lockup more acceptable to them.

How many of those artists are rolling over in their graves now, as copyright is continually extended? Just because the Disney Corporation thinks copyright should be forever doesn’t mean the thousands of artists whose works are now locked up thought so, or would think so now. The fact that so many artists are adopting Creative Commons licenses today indicates that many artists believe otherwise. If artists have “moral rights” to their works, surely extending copyright terms without their consent violates those rights.

8 Comments on "Breaking the bargain: copyright extensions violate “moral rights”"

  1. These things immediately popped into my head upon reading it. The one exception to the above is book authors, traditionally they kept their copyrights (check the inside cover of most books and you’ll notice the copyright is listed to the author), same goes for painters – musicians and film-makers on the other hand almost always had to sign their copyright over.

    Let’s just look at the differences though.
    Most book copyrights from the 20th century now belong to the descendants of the authors, for the most part: all they do is cash in on them by charging royalties for things like movie versions (or: frequently, blocking their production if they don’t think it’s enough like what grand-dad’s vision was). So what they achieve is to prevent the next great movie like Apocalypse now from being made (apocalypse now was directly based on Heart of Darkness but the changed mileu allowed it to effectively comment on a war two-hundred years after Joseph Konrad died).

    This copyright certainly does not do anything to either promote new works or even to ensure payment to the authors (they are dead) – it just gives their grandchildren royalty checks for no actual contribution to society whatsoever.

    Painters are not a big issue, paintings are hard to copy and if you do – the biggest issue for painters have never been about copyright anyway – they care far more about plagiarism (though that too is a new thing, in Da Vinci’s time – painters used to collaborate and only the master would take credit. As an example Da Vinci himself did a single figure in a much larger painting while he was an apprentice, for which he got no money or reward, today we recognize it as a great achievement as he invented an entirely new type of paint to be able to do some of the colors in it).

    Film-work was almost always work-for-hire: this rather makes sense, you need a lot of people to make a big movie, you can’t give each special effects technician copyright on the quarter-of-the-screen in one scene he did. It would be an administrative nightmare. So the copyright went to the production company. No problem – this was a sensible use of work for hire.

    But music was never work for hire, yet it was always signed over (this makes it almost unique in copyright history). Artists lost copyright, on what the law clearly deemed to be independent work, not commissioned work – they basically sold their copyrights for exposure.
    This is why, unlike books, the copyright statement on most CD-covers have a record companies name in it. But it did have an interesting side-effect, sold copyright reverted to the artist’s estate upon his death. So John Lennon’s descendants now own the copyright to Hey Jude.
    As the case with books show, it’s not ideal but it’s still better for the artists than to leave it in corporate control.
    Since the late 90’s though, a sneak lobbyist attack got this changed so music now never reverts, it’s deemed a work for hire (though it fits none of the usual criteria of such).

    So when it comes to past copyright -we see a lot of discrepancy in how it was handled at the time, as different industries worked in different ways. Now we live in an age of convergence and one of the big tools the big lobbying media conglomerates love is to make us forget that it wasn’t always like this.
    Ultimately – that is Disney’s coup-de-grass. No other company in history has made so much money from the public domain as they have (if old Walt had to get permission from the Grimm brothers, Snow white probably wouldn’t have been made – even though they themselves had been doing a derivative work of a much older story) – yet none have fought so hard to prevent ever contributing anything back into the public domain as they have.
    They have robbed us of freedom, of great out-of-print works, of much of our recent cultural heritage and a significant portion of what should be our current cultural heritage (all the works we should have been able to make and now can’t) – and for what ? To then refuse to give back even one single character to the domain from which they took so many ? And their hypocrisy doesn’t even end there: the same corporation that fights so hard for stricter and longer copyrights – but only when it’s their copyrights, when it’s the copyrights of others they have frequently abused it. Winnie the Pooh was basically stolen from A.A Milne and recreated into something that is at best, an insult to his stories – and Milne never got any reward from it.

    So much for fighting to protect the moral rights of authors. I’m more and more thinking Lawrence Lessig has it right – we’ll never win the fights for our freedoms by arguing right and wrong, there is only on way to stem the tide of corporate slavery which is flowing here, and it’s to get the lobyists out of Washington. Out of WIPO, out of the UN.
    I’m not American, I’m South African – the sad thing about our global culture is that the broken political system of Washington through trade-agreements and WIPO decisions ultimately spirals out until every single person in the world has to suffer the same oppressive copyright-for-censorship regime that it has imposed on the US.

    What would those long dead authors say ? Well you can’t speak for them all – but we sure know what some of them would say, some of them made it very clear.
    Shakespeare based every single one of his works on existing works and stories. If Shakespeare lived in today’s copyright laws… none of his works would ever have been written ! Most of what we have left of the works of ancient philosophy survived only because they didn’t have copyright. There are many great works of which the only surviving remnants are in “dialogues” – something that would be a clear violation of modern copyright laws.
    And of course, then there the more recent examples: even while he was alive Frank Zappa fought for less control by the record industry over music, battled to try and change the system so musicians wouldn’t have to sign over their copyrights and ultimately even started his own record label to try and fight them.
    Zappa warned of the very things we’re facing now 40 years ago. I think it’s clear what he would have wanted. I would be surprised if quite a lot of other artists wouldn’t have agreed (after all – people begged to be signed by Zappa at it’s height his label included the likes of Alice Cooper and Led Zeppelin).
    For that matter, how about the Grateful Dead ? They wouldn’t even sign a record deal while they were alive… you think they would want a record company owning copyright on their work /after/ they were dead ?

    1. There’s one funny thing about Disney’s obsession with owning their characters, as the Disney empire somewhat originated because of Walt loosing an intellectual property.

      Young Walt Disney was doing “Oswald the Rabbit” cartoons. But it was Walter Lantz who copyrighted Oswald. Walt was quite hurt by that, but reacted by creating a new character (which was basically Oswald with different ears) named Mickey Mouse… needless to say that Mickey is better known nowadays than Oswald, so Lantz didn’t benefit as much from registering Oswald as Disney did from not having done so: ironic, isn’t it?

      As an aside, Mickey was animated by Ub Iwerks, more than by Walt, and later was re-imagined as we know him today by Freddie Moore: of course it was Walt the Copyright owner and not the artists actually working with the character… Did they, or indeed, does any relative of Moore or Iwerks get a share of the creative work they did on the mouse? Unlikely

      Same goes for the Warner Bros animated characters: They are currently owned by the owners od Warner’s stock… but they were created by artists from another company: Leon Schlesinger Productions. And these characters, while they may have been originally designed by an individual artists, got their appeal from the fact that a bunch of wildly creative (and badly paid) artists worked on them, because, well, it may be Ben Hardaway the one who first used Bugs Bunny, but Bugs’ appeal lies in the fact that Tex Avery, Bob Clampett, Chuck Jones, Fritz Freleng and many more dropped their creative juices to the mix. Not to mention Mel Blanc.

      And yet neither Hardaway, Avery, Clampett, Jones, Freleng, etc (or ideed, Blanc) ever got royalties from their great work with the rabbit.


  2. Actually, a lot of book authors do sign over their copyright (that’s what standard publishing contracts default to — the author has to change it if they want anything different). And even when the author retains copyright, she usually signs an exclusive contract with the publisher, so the effect can be as though the publisher owns the copyright, depending on the terms of the contract.

    Your point about the uninhibited derivativeness of works of the past is really good: those artists *are* indicating, by the very nature of their works, that they didn’t think perpetual control is a good idea.

    Re Lessig: he may be overly pessimistic, in that if artists start releasing stuff under free licenses, it doesn’t matter what the legislature does!

  3. It’s interesting that you bring up painting–I disagree that it’s not a big issue with regards to copyright–it’s also not a new issue. The dominant style of the European Renaissance as pioneered by great masters like Leonardo consisted primarily of making derivative works of Classical era works of art and architecture. And when the masters weren’t copying antiquity, they were copying each other. I shudder to think of what Renaissance portraiture would look like if “Mona Lisa” had a copyright, even a short one, because nearly every portrait that came after it could be considered to be a “derivative work.” The same can be said of every modern painting that uses the forms of a historical art movement–cubism, surrealism, and especially Dada would have been fatally censored with the copyright “protections” that are in place today.

    It’s true that attribution was an issue even during the Renaissance, though. While the letter and the spirit of European law was generally upheld to protect derivative works in all forms (even those that seemed to be exact copies of the original–such as the famous case of Marcantonio Raimondi and Albrecht Durer), taking credit by means of including the originator’s mark (like Albrecht Durer’s initials) was not tolerated. The message back then was clear: you may copy the works of others, you may not falsify the artist’s mark through misattribution.

    It was acknowledged that many artists operated several workshops (with apprentices, craftsmen, et cetera) and thus might not have personally painted or printed everything that came out of their workshop, but it was this very spirit of collaboration that enabled artists to ply their trade. Artists could (and frequently did) vigorously defend their works from plagiarism, but it was more often from a standpoint of quality control (i.e. if you sign Titian’s name to an inferior work, you’re hurting Titian’s reputation and business) rather than perceived ownership of intellectual property. The very idea of owning a creative/intellectual concept would have had very little place in the humanist philosophy of Renaissance Europe! And yet, many feel this era produced the greatest works of art that humanity has ever seen.

    Defenders of copyright law often cite that copyright is a necessary protection of an artist’s livelihood, and yet during the period of European history when artists arguably enjoyed the highest status and compensation–the Renaissance–no legal equivalent to the Statute of Anne even existed. Even after the invention of the printing press and the beginnings of mass-produced art in the 16th century, artists were making good livings–amidst rampant copying–and without copyright law to “protect” them. We didn’t need it then, and we don’t need it now.

  4. Copyright laws will protect businesses that sell products such as books,music,movies from being copied and sold by others that did not create it. It is important because it protects legally from activities such as piracy. Some countries aren’t as strict about it and if someone is benefiting out of another’s creation than that person can leave to a different country to escape the law.If this was strictly protected in all the countries than this wouldn’t translate into others violating copyrights and losing profits because of this.

  5. I am not against of anything within this post.. I guess the advantage of copyright is that the work of someone will stay from generation to generation which means that people like his work for someone to copy it, however it would depend on the agreement between the author and to the one who would copy his work. You have a nice point anonymous.


    Frank from NC


  6. This is great. It is important because it protects legally from activities such as piracy. Some countries aren’t as strict about it and if someone is benefiting out of another’s creation than that person can leave to a different country to escape the law.If this was strictly protected in all the countries than this wouldn’t translate into others violating copyrights and losing profits because of this. Thank you.