Intellectual Property – Carrot and Stick

21 04 2008

Chacocanyon imageA recent article in The Scotsman, entitled “Those Who Can, Create. Those Who Can’t, Copy,” celebrates this Saturday’s World Intellectual Property Day by noting the recent lawsuits filed by J.K. Rowling, against the writer of a Harry Potter encyclopedia written by a fan, a UK ad for Berocca Vitamins which borrows rather heavily from the famous video by Ok Go for “Here It Goes Again,” and a host of other instances of overly zealous “homage”.

Nobody is overly surprised by this, not in a world where YouTube video responses are just as popular as the original videos that inspired them (check out this response, for instance, to the above Ok Go video). When you’ve got Doris Kearns Goodwin, and Steven Ambrose doing the same over in the literary world, it takes a lot to get people to notice videos which rip off fun bands from the early 21st century. Still, when people start losing money over this sort of thing, you can expect the courts to get involved. In this case, there were apparently discussion (according to the article) with Ok Go about using their work but, when they weren’t successful, the ad agency making the Berocca commercial went ahead with their own version of it.

Another case, involving Guiness and the filmmaker Medhi Norowzian, is also discussed:

Norowzian had previously submitted a showreel to [advertising agency] Arks that included the short film “Joy,” which showed a man performing an exuberant dance on a rooftop. Arks submitted a script and storyboard based upon the film to Guinness and Norowzian was approached to direct. Unwilling to “commercialise” an existing idea, he refused and a new director was instructed to create something “with an atmosphere broadly similar to that portrayed in Joy”.

Norowzian lost his appeal against a High Court decision dismissing his copyright infringement claim, because the court decided that the film, not the dance, was the original work and Anticipation’s jump-cut editing made it substantially different.

“The important distinction,” explains Colin Hulme, a partner in the intellectual property and technology team of law firm Burness LLP, “is that copyright only protects the expression of the idea, not the idea itself.

But the really interesting example they give is with Apple. English Mac fan Nick Haley created a short commercial on his own for the iPod Touch, which Apple liked. Rather than follow its normal practice of suing the pants off of Haley, Apple actually offered to buy his idea, which they proceeded to reshoot professionally with Haley’s involvement (a New York Times article about the commercial can be found here). Haley describes the logic of that this way:

“That’s the whole point of advertising; it needs to get to the user,” Mr. Haley said. “If you get the user to make the ads, who better?”

[As an aside, the differences between Haley’s and Apple’s versions of the ad are actually very instructive in terms of the concerns of a big corporation trying to sell its products and itself at the same time.]

Those of us who create media (intellectual property, content, whatever) have a love/hate relationship with copyright laws. Sometimes it makes it harder for us to do our work, but we certainly benefit when someone want to use or abuse our own work. Apple’s admission that not all derivative works are evil seems shockingly enlightened and, to me, the way in which media creators need to work in the new world. Creative Commons, in which content creators can create various levels of allowed public usages) strikes me as a great direction as done Moby’s offer of selected free music for “independent and non-profit filmmakers, film students, and anyone in need of free music for their independent, non-profit film, video, or short.”

Not everything needs to be free or open for copying, but allowing the artist to determine the fate of his or her own art strikes me as a great acknowledgment of the power of 21st century technology, while also realizing the need of artists to control the fate and the income from their own work.



One response

22 04 2008

Art is fundamentally derivative and that is fine with me, but there is a (sometimes blurry) line that can be crossed over into outright co-option. When that line is crossed, it should be dealt with appropriately.

Having said that, the JK Rowling suit referenced in the original article is outright wrong. A companion encyclopedia is pretty much by definition not a copy, it is a reference guide. Rowling was fine with, and even complimented the encyclopedic effort when it was available for free online. She objected when the author decided to sell it in book form. By her logic we could not have a reference or study guide on any copywritten work, which is simply bogus. Her suit has no merit.

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