Why copyright extension affects more than just Rule 34

For anyone who doesn't know, Rule 34 runs thusly: if it exists, there is porn of it.  That's right, as soon as anyone realises this blog exists, there will no doubt be graphic depictions of Copyright Cat and Steroid Mickey engaging in a very different type of wrestling.  Yeah, let that image fester for a while.

Anyone who didn't go peroxide their eyeballs might be interested to know that, with the exception of those using characters definitively in the public domain, every single instance of Rule 34 is illegal.  Most of it is not for profit (though I'm sure there are students who paid their way through art school by selling doodles of Jessica Rabbit
in compromising positions), but that doesn't actually matter.  For profit or not, reproduction of work not in the public domain is illegal.  Most non-profit fan-produced work goes unnoticed or unreprimanded by the copyright holders: after all, good fanfiction and fanart is free advertising, and I'm sure most reputable artists and authors would prefer to pretend Rule 34 doesn't exist than take it to court.  In addition, unless the copyright holders can make a good case that fan art/fiction is depriving them of revenue, the courts get a little pissed off with them for wasting their time on lawsuits that won't result in damages being paid.

Of course, there are some authors who come down hard on creative fans.  Anne McCaffrey is infamous for coming down hard on fanfiction and fanart (though she's wisely chosen to relax her strict "no fanfic" policy upon realising that - would you believe it - people are using her work because they love it).  Even so, fanfiction is prolific.  Most of it is terrible.  A surprising amount of it is gay romance (nothing personally against gay-interest fiction - I'm just not in the school of thought that believes Harry/Draco was so meant to be).  Some of it is decent, and some of it - particularly in well thought-out sci-fi or fantasy universes, like Star Wars or Babylon 5 - is so well respected by the fanbase and even by the universe's originators that it makes its way into the canon.  Sequel and prequel movies for well-loved franchises are often based on "fan suggestions", usually on the understanding that the suggestion already exists in fanfic form.  The production staff on the current incarnation of "Doctor Who" makes a point of recruiting staff writers from the cream of the fanwriter crop: sensibly, they'd rather have that talent making money for the BBC on honest-to-God Doctor Who episodes than infringing their copyright with unlicensed work floating around the internet.

We are very lucky that, save for a few hard-nosed individuals, the climate is so favourable towards derivative work, as long as that work is not for profit.  After all, while most authors, filmmakers and so on don't actively encourage fan fiction, they also by and large won't threaten you with massive lawsuits for penning your fantasy of Harry and Ginny's son being abducted by the crew of Serenity, shuttled off to Sector General and taught to use the force by a coalition of Jedi, Minbari Rangers and Yeerk resistance fighters so that they can finally defeat the dark army of evil Sith Ewoks.  Oh God, someone please write that story.

My point is, art is cathartic, coming up with original characters and scenarios can be exhausting when all you want to do is exercise the creative muscles, and for those really wanting to hone their craft, creating derivative work is a great way of eliminating variables so that you can work on refining particular skills.  If you know you're dealing with the cast of The Hobbit and your story is set in the Shire, then you can concentrate on the fact that you're working on your descriptive skills.  Just as fine artists study by emulating the work of Michaelangelo and Da Vinci, writers, animators, musicians and creative persons of all walks learn by copying the greats.  In the case of Twilight fanwriters...seriously, girls, grow up and get a decent muse.

Studying and copying modern masters is still possible, thanks to the benevolent blind eye of most copyright holders.  Largely illegal, but possible.  But as soon as derivative work starts to gain wide acclaim or reap profit, the trouble starts.  Once profit becomes involved, copyright holders become ravenous hyenas, scrambling over each other to take down the weakest members of the herd and protect their own profit margins.  Authors and artists find themselves on the wrong side of contentious lawsuits just for using the same inspiration as larger names than themselves.  The landscape turns into an Orwellian nightmare in which the eyes of copyright holders are everywhere, searching intently for any sign that their inalienable right to sole ownership of their work and all its derivations is being violated.

Of course they do this because stomping out any attempt to profit from their ideas before it takes root is the easiest way to maintain their profit margin.  But I think there's another reason, and that reason is fear.  Copyright holders, particularly those who are actual writers, musicians and artists, not just the studios and publishers who represent them, are pants-pissingly terrified that someone else will use their ideas to create work which is better than theirs.  Why is this frightening?  Because quality endures.  Transformers XIII: This Time, Optimus Really Dies might make more in its first weekend than whatever Pixar or Christopher Nolan throws out to compete with it, but Pixar and Nolan will have better, longer runs, and will probably gross more overall.  They'll still be raking in money from DVD sales long after even diehard Transformers fans have given up and admitted that Transformers XIII is a travesty and all copies should be fired into the sun at high velocity.

So what, right?  They came up with it, they should have the exclusive right to use it!  And, as an artist myself, to a certain extent I agree.  I can only imagine how mortifying it is to, having come up with the Grand Poo-bah of creative works, then find someone else has taken the same idea and used it more creatively than I.  And copyright does exist for a reason.  But consider this: if modern copyright law existed in Greek and Roman times, then Virgil's Aeneid would not exist.  The Aeneid is arguably one of the earliest examples of published fanfiction: it takes the then immensely popular story of the Trojan War, as told by Homer in the Odyssey, and tells it from the Trojan point of view.  It's a classic fanfic technique: take a war or conflict story and write from the opposite point of view.

It's fortunate that copyright law did not exist back then.  Because if it had, Homer would have copyrighted his story, slapped a big fat trademark on the right buttock of the Trojan Horse (and probably Odysseus, Hector, Achilles and a few other notables for good measure) and sucker-punched anyone who tried to use the Trojan War for their own purposes with a big, fat lawsuit.  A good third of the Aeneid, containing some of the most memorable and dramatic scenes (Hector appearing in the dream, anyone?), would have been squished for copyright infringements, irreparably damaging or perhaps even destroying arguably the greatest piece of Latin literature ever written.

But hey, I'm biased, and I studied the Aeneid in school.  Plus, it's a sketchy example: even under today's copyright laws, the copyright on the Iliad would have expired long before Virgil got hold of the material, and Homer's publisher would more than likely have gone out of business and given up the trademark on the Trojan Horse.  I just used Virgil as an example because he's my favourite, and I like calling him a fanfic writer.  A better example would be Shakespeare.

Yes, Shakespeare was the mother of all plagiarists.  Romeo and Juliet is so derivative that Shakespeare himself pokes fun at it in A Midsummer Night's Dream.  Shakespeare stole from antiquity, from mythology, from earlier playwrights and even from his own contemporaries.  What do William Shakespeare and Christopher Marlowe have in common?  They wrote a lot of the same plays.  Why has no one outside of a Masters' in literature seen a play by Christopher Marlowe?  Because Shakespeare wrote them better.  There's a lot of debate over who copied who, but in some cases experts are pretty sure Marlowe beat Shakespeare to the punch, Romeo and Juliet being one of those cases.

Many, many great figures copied from their contemporaries.  Mozart did it.  Da Vinci did it.  Shakespeare did it.  Every author of the Gospels did it.  If copyright had existed in any form when these artists were alive, Hamlet wouldn't have made it past omelette, Mozart would have bankrupted himself for the rights to Don Juan, the Louvre would have only one Madonna and Child on the wall and Jesus would be trademarked.  And the Bible would be a lot shorter.  Every one of these works has enriched our culture (even the Bible: I might poke fun but I recognise merit), and every one is the result of someone taking an existing work and doing it differently, or better.

And here's where copyright extension comes in.  Yeah, yeah, at least I got to it eventually.  The earliest incarnation of copyright (more on that later) protected a work for around thirty years, regardless of life of the creator.  So, upon seeing one of Marlowe's romantic tragedies and thinking "Hey, I could do that a lot better", Shakespeare could have just spent the next thirty years trying not to step in front of any fast-moving carriages, before writing Romeo and Juliet.  Who knows, the benefit of extra life experience might have made the play even better.

Copyright extension started in 1831, and has been getting steadily more ridiculous since.  Shakespeare lived to be around fifty, so, depending on when Marlowe wrote the plays Shakespeare would later copy, thirty years might still leave time for Shakespeare to speed-write a few masterpieces.  The fifty-odd years copyright lasted after 1831 would have made things more difficult.  But okay, for the purpose of argument, let's say Shakespeare lives to be seventy instead.  Unusual, but not impossible for the time.  Potentially, if Shakespeare sees Marlowe's play very young and writes very quickly,  Romeo and Juliet still ends up being written.  But what about when copyright gets extended to seventy years?  Even today, people don't commonly live to ninety and beyond.  And when copyright gets extended to life plus fifty years, for Romeo and Juliet to be written Marlowe needs to drop dead immediately after Shakespeare first sees his play, and Shakespeare still needs to cryogenically freeze himself for a decade or two.  Practically, Romeo and Juliet never exists.  The same argument applies to everything any genius copied from one of his contemporaries, and turned into a masterwork.  Half of the ceiling of the Sistine Chapel would be a blank.

With Disney leading the fray (and yes, I will always find a way to come back to the evils of Disney), I'm not sure I see an end to copyright extension.  Big corporations live a long time, and always protect their interests.  Disney had a direct hand in getting copyright extended again in 1998, to life plus seventy years.  Follow the line, and a copyright that protects work for life plus several centuries is not inconceivable.  Under that law, Virgil would never have written the Aeneid.

Copyright was originally conceived of, in part, to encourage originality among artists, which is admirable.  But any artists will tell you, there's only a certain amount of originality out there, and with copyright running longer and longer and definitions for what constitutes a violation getting tighter and tighter, well, the well's running a little dry.  Sooner or later, ideas have to be recycled, and that's not a bad thing.  After all, it gave us Don Giovanni and The Lord of the Rings.  And who knows which one of today's fanfiction writers will some day be considered a twenty-first century Shakespeare?

At the rate we're going, the answer is clear: none of them.

And, on that sombre note, this is Copyright Cat, signing off.