The more I read about copyright, and creativity, and the cultural industries, the more I realize that some of my opinions have been intuitive but are supported by example or research that is available out there. But things always surprise me. Here’s an excerpt from Lawrence Lessig’s The Future of Ideas, which surprised me to no end; and it was pretty much the first thing:
In the process of making a film, a director must “clear rights.” A film based on a copyrighted novel must get the permission of the copyright holder. A song in the opening credits requires the permission of the artist performing the song. These are ordinary and reasonable limits on the creative process, made necessary by a system of copyright law. Without such a system, we would not have anything close to the creativity that directors such as Guggenheim have produced.
So far so good. That makes sense to me! But it continues:
But what about the stuff that appears in the film incidentally? Posters on a wall in a dorm room, a can of Coke held by the “cigarette smoking man,” an advertisement on a truck in the background? These too are creative works. Does a director need permission to have these in his or her film?
“Ten years ago,” Guggenheim explains, “if incidental artwork . . . was recognized by a common person,” then you would have to clear its copyright. Today, things are very different. Now “if any piece of artwork is recognizable by anybody . . . then you have to clear the rights of that and pay” to use the work. “[A]lmost every piece of artwork, any piece of furniture, or sculpture, has to be cleared before you can use it.”
Okay, so picture just what this means: As Guggenheim describes it, “[B]efore you shoot, you have this set of people on the payroll who are submitting everything you’re using to the lawyers.” The lawyers check the list and then say what can be used and what cannot. “If you cannot find the original of a piece of artwork . . . you cannot use it.” Even if you can find it, often permission will be denied. The lawyers thus decide what’s allowed in the film. They decide what can be in the story.
The lawyers insist upon this control because the legal system has taught them how costly less control can be. The film Twelve Monkeys was stopped by a court twenty-eight days after its release because an artist claimed a chair in the movie resembled a sketch of a piece of furniture that he had designed. The movie Batman Forever was threatened because the Batmobile drove through an allegedly copyrighted courtyard and the original architect demanded money before the film could be released. In 1998, a judge stopped the release of The Devil’s Advocate for two days because a sculptor claimed his art was used in the background. Such events teach the lawyers that they must control the filmmakers. They convince studios that creative control is ultimately a legal matter.
Sorry, what? So the best way to make a movie, really, is to do it in an empty room with no possibilities, so that the lawyers can’t argue about each thing that can be a potential lawsuit or payment and remove these? Any artwork/advertisement/random brand apparition in your footage might cause that footage to be a problem. Basically meaning your “film” is at the hand of lawyers, and they choose if you can include something, and not you, the director.
I know that copyright doesn’t always protect the creator, most of the time it protects the intermediary and the publisher, and there are reasons for industries to be set-up the way they are (or are there? – a whole other debate) but this is just crazy. Not even just silly, but frustrating. Lessig indeed continues on the premise that for most people this is silly, and the book promises to talk about internet, the commons and control mechanisms, so I expect more excerpts to come your way, but I am still speechless about the copyright thing.