Mixing It Up with Free Culture
Early in Free Culture (2004), Lawrence Lessig discusses the Mickey Mouse cartoon, Steamboat Willie as something of a remix of an earlier Buster Keaton movie, Steamboat Bill, Jr. Lessig's use of Disney here is interesting, because Disney as a company has a pattern of litigiousness toward anyone who remixes Disney properties into their own art. When it does happens--and it does--it can result in artists taking their creations "underground," as Lessig has noted. Take, for example, Robert Armstrong's Mickey Rat, created in the early 1970's as a parody of Mickey Mouse.
Mickey Rat started on t-shirts, which sold well enough that Armstrong branched out into underground comics (or "comix," as they're often known), where the "sleazy" character proved himself willing to do any kind of "foul deed" (Toonopedia). Interestingly, Disney didn't sue Armstrong for the character. Perhaps it was too clearly a parody (which falls under fair use) or was too small a financial threat Disney to preoccupy itself. Or maybe it was so far underground that word of it never reached the corporate higher-ups.
This wasn't the case for Captain Marvel and DC Comics.
Some background: Superman first appeared in Action Comics #1, published in 1938. We know the basics: a mythical figure from beyond comes to earth with powers and abilities beyond those of mortal humans. Basically, Superman is Space Hercules, but he wears a cape and a skin-tight bodysuit largely reminiscent of circus strongmen of the day.
Superman was a huge success, and the superhero genre was born. But in the late 1930's and through the 1940's, every superhero seemed to DC Comics (then known as National Comics) that these potential copies (or "remixes," to tie it back to Lessig) of Superman were losing the company money. National sued several of these so-called infringements (and threatened to sue others). The most famous of these lawsuits was brought against Fawcett Publications, owners of another cape-and-bodysuit-wearing superhero, Captain Marvel.
This case (among others) is detailed in Neil Harris's 1985 article "Who Owns Our Myths? Heroism and Copyright in an Age of Mass Culture" (Social Research 52.2). I won't go into too much detail except to note two things. First, Harris discuses Captain Marvel as being even more closely linked to the mythologies that Superman originally evoked. Captain Marvel was summoned by saying the magic word "Shazam!," which stood Solomon, Hercules, Atlas, Zeus, Achilles, and Mercury (p. 259). If Superman was himself a remix of mythological and cultural tropes (gods among men, circus strongmen, etc.), then Captain Marvel was even more so, and yet ironically, DC was claiming that Captain Marvel was the derivative work (which, in fairness, it almost certainly was; just look at the costume). Secondly, while National and Fawcett settled the case in the 1950's, the character was in fact discontinued until National themselves acquired the rights in the early 1970's and began publishing their own Captain Marvel comics. In other words, the lawsuit was enough to contribute to the removal of a creative work, which was then revived by the very company that had originally brought the grievance. If Captain Marvel was derivative and taking sales away from Superman, then why bother buying the character and making more Captain Marvel comics?
I bring up these two examples--Mickey Rat and the National/Fawcett lawsuit--as a way to work through my own thoughts about some of Lessig's larger points about creativity and copyright. I fully agree with Lessig about creativity. So much of what we create is done by mixing of old tropes with modern trappings. I think about music--there are a finite number of chord progressions in existence. If someone were to lay a copyright claim on a chord progression, or a music style, the world would be poorer for it. Add to this the complications between creators and corporations. Superman's creators were famously ill-compensated for their creation. They sold their ownership rights early on for what would amount to a miniscule percentage of what Superman would ultimately earn DC.
And, as Lessig has noted, this is even more complicated with digital works. How many YouTube videos are just remixes of previous material? For example, Lessig's own Ted Talk features the well-known George W. Bush/Tony Blair lip sync to "Endless Love." These "lip reading" videos have themselves become a genre.
As with Mickey Rat, many of these are parody, which are protected under fair use, but as Lessig has noted, sometimes "fair use" still means getting lawyers involved.
 |
| Fig 1: Mickey Rat |
Mickey Rat started on t-shirts, which sold well enough that Armstrong branched out into underground comics (or "comix," as they're often known), where the "sleazy" character proved himself willing to do any kind of "foul deed" (Toonopedia). Interestingly, Disney didn't sue Armstrong for the character. Perhaps it was too clearly a parody (which falls under fair use) or was too small a financial threat Disney to preoccupy itself. Or maybe it was so far underground that word of it never reached the corporate higher-ups.
This wasn't the case for Captain Marvel and DC Comics.
Some background: Superman first appeared in Action Comics #1, published in 1938. We know the basics: a mythical figure from beyond comes to earth with powers and abilities beyond those of mortal humans. Basically, Superman is Space Hercules, but he wears a cape and a skin-tight bodysuit largely reminiscent of circus strongmen of the day.
 |
| Fig 2: Action Comics #1 |
Superman was a huge success, and the superhero genre was born. But in the late 1930's and through the 1940's, every superhero seemed to DC Comics (then known as National Comics) that these potential copies (or "remixes," to tie it back to Lessig) of Superman were losing the company money. National sued several of these so-called infringements (and threatened to sue others). The most famous of these lawsuits was brought against Fawcett Publications, owners of another cape-and-bodysuit-wearing superhero, Captain Marvel.
 |
| Fig 3: Captain Marvel, from Whiz Comics #2 (1940) |
This case (among others) is detailed in Neil Harris's 1985 article "Who Owns Our Myths? Heroism and Copyright in an Age of Mass Culture" (Social Research 52.2). I won't go into too much detail except to note two things. First, Harris discuses Captain Marvel as being even more closely linked to the mythologies that Superman originally evoked. Captain Marvel was summoned by saying the magic word "Shazam!," which stood Solomon, Hercules, Atlas, Zeus, Achilles, and Mercury (p. 259). If Superman was himself a remix of mythological and cultural tropes (gods among men, circus strongmen, etc.), then Captain Marvel was even more so, and yet ironically, DC was claiming that Captain Marvel was the derivative work (which, in fairness, it almost certainly was; just look at the costume). Secondly, while National and Fawcett settled the case in the 1950's, the character was in fact discontinued until National themselves acquired the rights in the early 1970's and began publishing their own Captain Marvel comics. In other words, the lawsuit was enough to contribute to the removal of a creative work, which was then revived by the very company that had originally brought the grievance. If Captain Marvel was derivative and taking sales away from Superman, then why bother buying the character and making more Captain Marvel comics?
I bring up these two examples--Mickey Rat and the National/Fawcett lawsuit--as a way to work through my own thoughts about some of Lessig's larger points about creativity and copyright. I fully agree with Lessig about creativity. So much of what we create is done by mixing of old tropes with modern trappings. I think about music--there are a finite number of chord progressions in existence. If someone were to lay a copyright claim on a chord progression, or a music style, the world would be poorer for it. Add to this the complications between creators and corporations. Superman's creators were famously ill-compensated for their creation. They sold their ownership rights early on for what would amount to a miniscule percentage of what Superman would ultimately earn DC.
And, as Lessig has noted, this is even more complicated with digital works. How many YouTube videos are just remixes of previous material? For example, Lessig's own Ted Talk features the well-known George W. Bush/Tony Blair lip sync to "Endless Love." These "lip reading" videos have themselves become a genre.
As with Mickey Rat, many of these are parody, which are protected under fair use, but as Lessig has noted, sometimes "fair use" still means getting lawyers involved.
The challenge I face is to decide where I think lines should be drawn. If Siegel and Shuster hadn't been working for National Comics, Superman likely wouldn't have happened at all, so there is absolutely benefit in having corporations involved in creation. And what about the question of heirs? Why shouldn't Tolkien's family be the ones to enjoy the fruits of his copyrighted works, now that he has passed? If I had created Middle Earth, I would want my family to benefit from it.
I'll conclude this (admittedly too-long) reflection with a poem. Lessig was principal attorney in the Eldred v. Ashcroft case, whose exigence arose from Eric Eldred's desire to archive Robert Frost's book New Hampshire online at a time when New Hampshire's copyright had just been extended. Incidentally, New Hampshire entered the public domain this year (2019), so I'm going to share a poem from it. This is a well known poem in which Frost describes enjoying someone else's property without paying for it:
STOPPING BY WOODS ON SNOWY EVENING
Whose woods these are I think I know.
His house is in the village though;
He will not see me stopping here
To watch his woods fill up with snow.
My little horse must think it queer
To stop without a farmhouse near
Between the woods and frozen lake
The darkest evening of the year.
He gives his harness bells a shake
To ask if there is some mistake.
The only other sound’s the sweep
Of easy wind and downy flake.
The woods are lovely, dark and deep,
But I have promises to keep,
And miles to go before I sleep,
And miles to go before I sleep.
The entire book can be found at Project Gutenberg.
There's an effective video students like, or at least they liked when this was new(ish). It was first published in 2012, captioned and re-uploaded in 2015. offers an effective primer.
ReplyDeletehttps://www.youtube.com/watch?v=BeKFAM892k4