Question Copyright

Do you know some great examples of copyright being used to censor?

If so, please share them by commenting here or by sending us email. We’re putting together a presentation about the equivalence between copyright and censorship, and need to have an overwhelming number of examples at hand — enough to make it clear that the ones we choose to highlight have been picked from an ocean of candidates. We need compelling examples because the most important ones are the hardest to show: when an artist unconsciously steers away from an idea because of rights issues, that is censorship, but it is internalized and thus invisible to the outside world. We need examples to help make clear the link between visible, externally-imposed censorship and the much more common self-imposed censorship that copyright law encourages.

A great starting point is the Electronic Frontier Foundations’s Takedown Hall of Shame, listing people and organizations who have used copyright law (especially the DMCA) to squash criticism.

But situations where copyright suppresses art itself are just as important, and are just as much censorship as political censorship is. Some examples:

• J.D. Salinger uses copyright to censor another author.

• The James Joyce Estate bans non-cooperating editions of Joyce’s works.

• How the play Blanche Survives Katrina in a FEMA Trailer Named Desire ran into a streetcar named censorship.

• The story of Sita Sings the Blues: how copyright almost prevented a popular and award-winning film from reaching audiences.

• The story of Eyes on the Prize: how copyright prevented an important film from reaching audiences for years.

• The same story yet again: copyright prevented the film Killer of Sheep from being released for 30 years.

• …help us dig up more…

The audience we’re aiming at is groups already concerned about freedom of expression who may not have considered copyright as a systemic form of censorship. For example, the American Library Association’s Intellectual Freedom Roundtable, the Index On Censorship, and the Authors Guild. Note that such groups are often comprised of writers and artists who came of age in the pre-Internet, copyright-controlled era, so it is especially important to have an overwhelming amount of data to show that there is a problem here.

The Free Expression Policy Project seems to already have copyright-based censorship on their radar screen; there’s probably some good stuff in the archives there. Also, if you’re an artist who has been affected by this kind of censorship, we definitely want to hear from you!

Perfect symmetry: J. D. Salinger complains that his book is censored, then J. D. Salinger turns around and censors someone else’s book.

He probably wouldn’t see it that way. He’d probably say he’s “protecting his property” or something like that. But in fact what he has done is ban a book — a sequel someone else wrote to Salinger’s book The Catcher in the Rye.

Salinger had other options. For example, if he doesn’t like this particular sequel, he could simply not endorse it. In fact, given the extraordinary powers current copyright law grants him, he could even insist that the sequel be marked as “unauthorized”, so that his name and reputation wouldn’t be associated with it. (Of course, in a world where people didn’t assume that a sequel must be authorized, even that step wouldn’t be necessary.)

But instead of choosing an option that respects the freedom of readers and of other authors, he’s suing to ban the new book. The usual pieties about freedom of speech (“the best antidote to bad speech is better speech”) somehow melt away and magically don’t apply for him, even though if he were asked, he would probably claim that he agrees with them. What is it about copyright, that it manages to sink so deeply into people’s worldview that they cannot see censorship when it’s right in front of their faces? When they’re the ones doing the censoring?

On the other hand, the author of this sequel, Fredrik Colting, gets it:

“I am pretty blown away by the judge’s decision. Call me an ignorant Swede, but the last thing I thought possible in the U.S. was that you banned books.”

His lawyer, Edward H. Rosenthal, raises the free speech issue too:

“…members of the public are deprived of the chance to read the book and decide for themselves whether it adds to their understanding of Salinger and his work.”

Though really, why should it even be necessary that the book add to anyone’s understanding of Salinger’s work? Maybe it does, maybe it doesn’t. Either way, it still shouldn’t be censored.

What can you do? Well, wear one of our ©ensorship shirts (women’s and men’s available in various sizes), and when someone asks you about it, tell them how copyright leads some authors to ban other authors’ books. The back of the shirt has our web site address and logo:

Wearing them really works, by the way. I wore one on a train recently and wound up having a great conversation about copyright with two people, one of them a musician coming back from a gig, after they asked me about the front.

We’re at the Open Video Conference in New York City right now, and it’s terrific: a gathering of creative people who are dedicated to building freedom into both the technical and the legal infrastructure of the Internet. Today I heard a great talk by Prof. Gabriella Coleman of New York University: The Politics and Poetics of DeCSS, on the connection between computer code and legal theories of free speech, and how the kind of Internet we get depends in part on how that connection fares in courts.

If you’re at the conference, come stop by the QuestionCopyright.org table the exhibit hall. We’ve got shirts, stickers, DVDs, and more. The stickers are free, and they fit on a laptop — there’s even one for netbooks.

Saturday we’re on a panel (I say “we” because either Nina Paley or I will be a panelist, depending on logistics) at 5pm entitled “Who Owns Popular Culture? Remix and Fair-Use in the Age of Corporate Mass Media”:

Our shared popular culture is driven by Hollywood movies, television shows, video games and the latest musical hits. Due to its ubiquitous nature, it is entrenched in our everyday lives, becoming part of the language we speak to each other and also shaping how we see the world around us. Since pop culture is largely created, distributed and owned by a few major media corporations, copyright laws restrict its public use. Given the tight control of these powerful institutions, how can remixers, artists, educators, youtubers and filmmakers find ways to speak using our shared pop cultural language? How does fair-use intersect with copyright regarding our artistic rights to create, criticize and build on the past? This panel will attempt to demystify fair use and re-imagine what a truly public popular media culture might look like.

I’m looking forward to it a lot; the other panelists have all been doing very interesting work:

• Elisa Kreisinger
• Francesca Coppa
• Jonathan McIntosh
• Neil Sieling

See the conference schedule for what else is happening Saturday.

Then on Sunday (the Hack Day), there’s a showing of Nina Paley’s film Sita Sings the Blues at 2pm in the Tishman auditorium at the conference venue, Vanderbilt Hall at New York University. Anyone can download the film, since it’s released under a totally free license, but it’s much better to see it on the big screen with a lot of other people. Come if you can; you’ll be glad you did.

(See also this article at PBS MediaShift about the Creator Endorsed Mark, and this example of the mark being used in commerce.)

The Creator-Endorsed Mark is a logo developed by Questioncopyright.org and first used in June 2009 that a distributor can use to indicate that a work is distributed in a way that its creator endorses — typically, by the distributor sharing some of the profits with the creator.  The mark is not an alternative to a free license; rather, it’s meant to be used in conjunction with free licensing.  You release your work under a free license, and then grant or withhold permission to use the CE Mark based on how distributors behave.

As more and more creators freely circulate their works on the Internet, the mark provides a reliable way for non-exclusive publishers to signal to their customers that they are supporting the artist.  The mark enables consumers to distinguish distributors based on how supportive of the artist they are, and to allow creators to encourage — not necessarily require, but encourage — particular methods of distribution for their freely-licensed work. Our experience is that given a choice, audiences will often prefer sources that support the artist, when they have a reliable way of recognizing such sources.

How it works:

A distributor may only use the mark with permission from the creator of the work, and creators may grant blanket permission to use particular versions of the mark to anyone who meets certain conditions. For example, the creator might say that anyone who shares any profits at all with them can use the generic “proceeds support” version of the mark:

Furthermore, a creator might grant permission to anyone who shares a certain percentage of their profits to use a “percentage” version of the mark, as long as it does not exceed the actual percentage shared. For example, a distributor sharing 25% of profits could use this mark:

Or an artist might grant permission to use a mark unrelated to revenue-sharing, because she endorses that distributor’s distribution for some other reason:

The default terms of the marks (see below) allow certain of these uses without prior permission, as long as reasonable conditions are met and the creator has not explicitly disallowed the use.

The marks come in “artist” and “author” versions:

…and in black-on-white versions:

You are encouraged, but not required, to link back back to this article when using the marks online: http://questioncopyright.org/creator_endorsed.

Enforcement:

If you are a creator and someone is using the marks on your work in a way you disapprove of, please send them a letter telling them to stop, and make sure QuestionCopyright.org gets a copy of that letter (email is fine). If the disallowed use persists, let us know; we will either cooperate with you in enforcing the mark or grant you the necessary legal agency to enforce it yourself.

Credit:

The Creator-Endorsed Mark design was done by Nina Paley.