Firebowls, Copyright And Crowdfunding (Oh My)

from the will-people-understand-the-nuances? dept

A bunch of people have been sending in John T. Unger's story, claiming that someone who copied his artwork is now suing him in federal court over copyrights. The general sentiment from the submitters, it seems, is to support Unger's position. I avoided writing about this for a while, because the story is actually a lot more complex, and since I think Unger is going too far, I thought it might upset some folks. Plus, the story is pretty complex. Thankfully, the good folks over at Consumerist actually really did an excellent job laying out a pretty balanced look at the issues that doesn't automatically side with Unger.

Here's the summary of the situation:

• Unger makes "firebowls" -- decorative metal bowls that you light a fire in (I had no idea such things existed).
• He copyrighted the design of his firebowls.
• He then discovered that Rick Wittrig was making firebowls that look remarkably similar, but are a bit cheaper.
• Unger got angry and sent a cease-and-desist
• Wittrig filed a lawsuit to claim that Unger's registered copyrights are not legitimate, as there shouldn't be any copyright on utilitarian objects.
• Unger writes up his side of the story (small artist being ripped off!) and asks people to fund his legal defense using popular crowdfunding site Kickstarter

As Consumerist notes, it's easy to quickly side with Unger without understanding the full story, saying that he's an artist who got "ripped off," but that's not at all clear. Yes, it does seem pretty likely that Wittrig copied Unger's designs (they match quite closely and at no point does Wittrig deny copying the designs). But it is a pretty big question as to whether or not Unger's work really is covered by copyright (or should be). Now this whole story is the type of thing that people often bring up when I write about why copyright isn't needed. This -- they say -- is a perfect example where copyright is necessary. Unger is mad because this other guy is "ripping him off" and passing off Unger's designs as his own. Except, again, that's not clear at all. Copyright was designed as an incentive to create -- not a system to block all competition. In the fashion world, as we've noted repeatedly, knockoffs are quite common, and have helped the industry thrive. It actually helps make the brand name originators of the design worth more, because people want the "real" original kind.

So, without copyright, what can Unger do? Well, he's actually already doing it. He put up a site that points out that Wittrig copies him, get lots of attention for it, and a lot more people now know about these kinds of decorative firebowls. My guess is that Unger is suddenly selling a lot more than he was before -- and that'll be true whether or not Wittrig gets the copyrights tossed out. And, in the meantime, having Wittrig around as competition should be good for Unger, pushing him to continue innovating and coming up with new designs.

Separately, I have to admit to some fascination over the use of Kickstarter's crowdfunding platform to fund a "legal defense" rather than just as a way to sell products. Even if I don't think Unger should have much of a legal argument, I think it's a cool use of the platform, which also drives more interest and attention to his own bowls.

So, in the end, I think Wittrig should be free to make these firebowls and to sell them in the marketplace and compete with Unger. At the same time, though, I think Unger should be free to draw lots of attention to his own firebowls combined with the sympathy-inducing story of how he originated the designs that Wittrig copied. In the end, then, they'd both be better off, as it ends up getting both of them a lot more attention for the bowls, and those who feel sympathy for Unger, or who just want to support the "original" artist, will pay up for his versions of the bowls, whereas those who would rather save some money will pay Wittrig. In the end, both of them end up being better off, and no copyright battle needs to happen. Unfortunately, in an age where so many content creators have been taught to use copyright as a crutch, that's not what we get.

105 Comments | Leave a Comment..

What's Wrong With Paying Homage To A Literary Classic By Writing A Sequel?

from the trying-to-figure-it-out dept

Against Monopoly points us to a NY Times article that discusses some of the recent "controversies" over unauthorized sequels/prequels/re-imaginings of certain classic books, including the ban on an unauthorized "sequel" to Catcher in the Rye -- as well as the awesome addition of zombies to Jane Austen's Pride and Prejudice, now known as Pride and Prejudice and Zombies. But the key point is made towards the end:

Yet the urge to write sequels and prequels is almost always an homage of sorts. We don't want more of books we hate. The books that get re-written and re-imagined are beloved. We don't want them ever to be over. We pay them the great compliment of imagining that they're almost real: that there must be more to the story, and that characters we know so well -- Elizabeth Bennet, for one, or Sherlock Holmes, who has probably inspired more sequels than any other fictional being -- must have more to their lives. In a couple of quite good sequels recently -- "A Slight Trick of the Mind," by Mitch Cullin, and "Final Solution: A Story of Detection," by Michael Chabon -- we even get to watch Holmes grow old and discover love of a sort.

Certain books are more than mere texts -- words on a page or, these days, an electronic reading device. They're part of our mental furniture. And yet it's their familiarity, their well-wornness, that makes them such tempting targets. If zombies were to turn up, for example, in Mrs. Gaskell's "Cranford," it wouldn't be nearly so funny.

And, then when you think about it, if copyright is designed to encourage more creativity, wouldn't these sorts of re-imaginings of already existing fictional worlds fit that criteria exactly?

72 Comments | Leave a Comment..

This Is America... Why Are We Banning Books?

from the good-questions dept

Last month we wrote about how a district court banned the publication of a so-called "sequel" (written by another author) to JD Salinger's Catcher in the Rye. I had a lot of trouble with this ruling, which seemed to be a complete assault on the basics of free speech and a total misreading of copyright law. The book itself is not a copy, but something entirely new. Whether or not it's any good (and some of the reviews say it's not), it is a new creative work -- the exact type of thing that copyright was supposed to encourage. It's good to see a lot of other folks are quite concerned about this ruling as well, and the Fair Use Project at Stanford has teamed up with some other universities to file an amicus brief on behalf of the American Library Association and some other library associations, who are reasonably concerned about the free speech implications of banning the publication of a book such as this one.

45 Comments | Leave a Comment..

The Myth Of Original Creators

from the creativity-is-built-upon-others-ideas dept

We recently wrote about how many different sources Shakespeare used in writing King Lear, some of which he apparently copied verbatim. However, it seems quite likely that what Shakespeare did with those words created something wholly unique and valuable (at least, it's withstood the tests of time). Yet, this idea that taking the works of others and doing something with them to make them new and wonderful seems to be an anathema to the "true believers" in copyright, who insist that creativity is about being wholly original, and almost never about building on the works of those who came before. Yet, there's almost no evidence to support this. Nearly any creative work can be shown to be built upon the works of those who came before (hell, even our own copyright law is copied from others').

Law professor Peter Friedman recently had a few interesting blog posts that helped highlight this. First, he noted that the very notion of an author as the originator of a new work is a relatively recent phenomenon, and part of the Romantic Movement. However, prior to that, the view was much more akin to what we're actually seeing today with online tools of creation: "creative endeavors are derivative and collaborative, that originality is not the product of isolated genius but of, well, remixing."

He then goes on to discuss the blues musician Robert Johnson -- considered by many to be the "quintessential" Blues musician. However, a recent study into Johnson's work suggest that his fame and renown is basically an accident of history. Some British musicians heard Johnson's music, and since they'd never heard it before, they credited him for it, even though he was mainly copying (and building on) the work of others:

Conceptions of Robert Johnson's work highlight the context dependent nature of notions of originality. Originality is yet another characteristic of copyrightability that is not always easy to delineate in actual contexts of creation. However, what might seem original to those in one context may not seem as original in other contexts. Consequently, within the context of African American audiences of the 1920s and 1930s, Johnson's work probably did not seem startlingly original in the way that it did to British and other musicians and audiences listening to Johnson's music, often in relative isolation, in the 1950s and 1960s. This later audience was largely removed from the original context of other music that was prevalent at the time Johnson produced his music or able to listen to a limited and likely biased sample of such music. For early African American blues listeners, what seemed original and interesting was very different that what seemed interesting and original to the largely white blues fans that were the major force behind the blues revival in the 1950s and 1960s. For the latter, romantic conceptions about the blues were closely tied to notions of authenticity that are often unsuited to musical creation in living musical traditions. As a result, what is perceived as original may depend in significant part on the contexts within which listeners hear music.

Friedman also points back to another recent post where he discusses the nature of content creation, based on a blog post by Rene Kita. In it, she points out that remixing and creating through collaboration and building on the works of others has always been the norm. It's what we do naturally. It's only in the last century or so, when we reached a means of recording, manufacturing and selling music -- which was limited to just those with the machinery and capital to do it, that copyright was suddenly brought out to "protect" such things.

But, today, with the rise of the internet, and the ability for anyone to perform those roles, we run smack dab into conflicting interests. People still want to create the way they always have, but the industry of the last century, that has relied on copyright law to make its product seem different and "original" freaks out about this ongoing content creation:

Culture is a conversation. Every act of culture is a reply to something, a restatement, correction, modification, reworking. Lawyers are constantly debating how much modfication is required to make a work legal. Thus, you may 'create' a new instance of The Blues(TM Martin Scorsese), by shuffling the notes and words around by a set amount. Shuffle too little and you're in trouble with the law. Shuffle too much and the purists start screaming rape. Still, artists are trained to recognize what is a new song and what a version and their publishing companies have experts to deal with these matters. And there we enter the crux of the matter:

Copyright law is corporate law. Or it used to be.

Previously, it took heavy investment to publish art, music, writing, so it was always done by companies and professionals. Today, squirting anything into a blog is an act of publishing. The legalese you signed by clicking when you started your blog forbids any use of copyrighted material that you don't own. Suddenly, instead of plain ordinary citizens entitled to sing "Poops, I did it again" or tape Brad Pitt's face in a toilet bowl onto a postcard to a friend, we are all professional artists required to Create Art from Scratch. Because we are no longer just having a conversation, in which we quote from everything we have seen and heard without any thought of Creation and Originality. Your piddling little blog is a Publishing Enterprise held to the same legal standards as Time Warner Inc, except that you do not have the funds to pay for any borrowings.

You have been muzzled.

This is why people are angry. Their normal modes of expression have been turned into a crime. They know they are only safe from prosecution because they are small fry - unless someone decides to make an example of you. Thus, any time you post some photoshoppery or a musical mash-up you risk having it summarily deleted and your account cancelled for criminal cultural activities.

It's nice to see more and more people recognizing and speaking out about these things. The idea that there is a single "author" or "creator" who deserves to get money any time anyone else builds upon his or her works is something that should be seen as increasingly ridiculous as people recognize that all works are created based on the works of others, and it's inherently silly to try to charge everyone to pay back each and every one of their influences in creating a new work.

79 Comments | Leave a Comment..

JD Salinger Sues Author For Writing A Sequel To 'The Catcher In The Rye'

from the let's-look-at-copyright dept

Eric M writes in to let us know that JD Salinger is suing the author and publisher of a new book that claims to be the sequel to Salinger's famous The Catcher in the Rye. Salinger is claiming that the book infringes on his copyright -- which may be a big challenge. Now this is an area of copyright law where a lot of lawyers disagree, but in general an unauthorized sequel doesn't necessarily infringe copyright. Copyright covers the specific expression, not the idea -- and since a "fan" sequel isn't likely to decrease interest in the original (in fact the opposite is likely to be true), there's unlikely to be a finding of copyright infringement. Of course, the specific details may matter and cases have gone in all different directions on this. There is, for example, the famous lawsuit about the book The Wind Done Gone, which was a retelling of Gone With The Wind from a different perspective. A lower court issued an injunction to block the sale of a book, but eventually it was allowed. There are certainly other potential claims that Salinger could make -- but the article specifically says it's a copyright issue, which seems like a tough sell.

50 Comments | Leave a Comment..

The Web, Creativity And Commerce: The Blurry Line Between Creativity And Ownership

from the nice-quote dept

Michael Geist points us to Ivor Tossell's final web column for the Toronto Globe & Mail, which is all about how fans kept the Star Trek universe alive, creating incredibly detailed fan versions of the shows, despite all of the offical shows having ended. In many ways, it's similar to the recent story we had about a fanmade Lord of the Rings movie. But the best point is made at the end (the emphasis is mine):

There's a lot of things you can do with the Internet. You can sit around all day, strip-mining the Net for free movies. You can disappear into virtual worlds. You can log onto your favourite website and leave a comment that will cause readers to wonder whether the planet wouldn't have been better off left to the dolphins.

You can buy a webcam and do something profoundly embarrassing that will render you unemployable for years. You can spend your days filling up Facebook with a hollow performance of yourself. You can create a Web service that seems destined to change everything, only to discover - several billion dollars later - that it really changed nothing, because people are people, and the more things change, the more they stay the same.

Or you can make something. On the sunniest days, I look at the Web and I see a world of people making things. Maybe they're cat videos; maybe they're full-blown recreations of science-fiction series from the late sixties. Either way, the creative process never happens in a vacuum. It's an endless back and forth of ideas and materials, and some of them will always cross the lines of ownership and copyright.

It's unusual to tell a story of an online project that takes a corporate work, uses its intellectual property to make something new, and gets rewarded instead of sued. But then, Star Trek has always envisioned an inexplicably cheery future in which creativity trumps commerce. It's science fiction, all right, but let's run with that.

Indeed. This is an important point. The web really is an incredible tool for creativity and making stuff. It's really too bad that copyright often gets in the way of that.

6 Comments | Leave a Comment..

Can Plagiarism Add Value?

from the perhaps-not... dept

A bunch of folks have sent in the story in Cracked, entitled 5 Great Men Who Built Their Careers on Plagiarism, showing how Stephen Ambrose, T.S. Eliot, Martin Luther King Jr., Richard Owen and H.G. Wells all appear to have plagiarized certain major works. As we've discussed in the past, while straight-up plagiarism can hurt someone's reputation in pretty serious ways, we have a bit more trouble condemning "plagiarism" where someone took something and turned it into something different. Jonathan Bailey, a staunch fighter against any type of plagiarism and copyright infringement, has written about the Cracked article, where he notes that the five men listed in the article would have a lot more trouble getting away with the same sort of plagiarism today, suggesting that's a good thing. I'm not sure that's necessarily true. In at least some of the cases of plagiarism listed in the original article, these guys took something someone else had done, but made it more impressive and did a better job getting the world to experience something wonderful. Would the world be better off without some of the works by these five men, even if they didn't necessarily originate from them? I'm not so sure... That's not to say that appropriating the works of others and pretending it's your own is okay. The reputation hit you're likely to take for doing that is pretty severe and not worth it. But I have a hard time believing that the actual final effect on the rest of the world is that bad.

23 Comments | Leave a Comment..