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                   Copyright 2000 Information Access Company,
                         a Thomson Corporation Company;
                                      ASAP
                       Copyright 2000 Reason Foundation
                                     Reason

                                 March 1, 2000

No. 10, Vol. 31; Pg. 44; ISSN: 0048-6906; 5411 words

HEADLINE: COPY CATFIGHT.

BYLINE: WALKER, JESSE

 BODY:
    How intellectual property laws stifle popular culture

    On August 19, 1999, in Los Angeles, a mild act of censorship took place.
Twentieth Century Fox, the colossus behind the cult series  Buffy  the Vampire
 Slayer,  sent a letter to Alexander Thompson, a 35-year-old data processor and
devoted  Buffy  fan. Thompson had spent countless hours transcribing each
episode of the show, complete with descriptions of the scenery and action, and
had posted the results on the World Wide Web, to his fellow fans' delight. Joss
Whedon, the show's writer and producer, had praised Thompson for the job he'd
done, even autographing one of the transcripts.

    Whedon, however, did not own the copyright to his work. Fox did. And Fox,
the company told Thompson, "has a legal responsibility...to prevent the
unauthorized distribution of its proprietary material."

    In other words, Thompson had to remove his transcripts from his Web site or
face a lawsuit.

    As far as repression goes, this no doubt sounds trivial. Fox is clearly
being stupid--Thompson's transcripts were a resource for fans, not a substitute
for the show-but the company was within its legal rights as the owner of the
 Buffy  program. What it did was obnoxious, silly, and bad business, but it's
hardly a threat to free speech. Right?

    Don't be too sure. There is an inherent conflict between intellectual
property rights and freedom of speech, a tension between your right to control
story you've written and my right to use it as raw material for my own work.
Thanks to two trends, that tension is turning rapidly into a collision--one
where more than the convenience of online  Buffy  fans is at stake.

    On one hand, as information has grown more valuable, copyright and trademark
law has become increasingly restrictive. At the same time, there has been, in
the words of MIT media studies professor Henry Jenkins, an "explosion of
grassroots, participatory culture," a new high-tech folkway that not only draws
on pop culture but appropriates from it more easily than ever before, and
disseminates itself on a wider scale.

    Now the companies atop the culture industry, from Fox to Disney to
LucasFilm, are starting to notice this alternate universe of fans, parodists,
and collagists. They don't quite understand what they're finding, and for the
most part they don't like it. And they've got the government on their side.

    In theory, a copyright is simply an incentive to create: Compose something
original, the Constitution says, and we'll make sure you get a chance to profit
from it. Trademark law is even simpler. It's a protection against fraud and
consumer confusion, a recognition that Nike shoes are a particular product, and
that if I start selling some homemade slippers as "Nikes," I am deceiving my
customers.

    Copyrights, unlike trademarks, have always posed problems, even if you think
they're necessary. They are, after all, government-granted monopolies; as such,
they should be strictly limited and carefully watched. If someone wants to
extend their reach, he'd better have a compelling argument for doing so, and
lawmakers should approach his proposal with due skepticism.

    Instead, Congress acts as a rubber stamp for copyright holders, especially
the big campaign donors in the entertainment industry. At the dawn of the
republic, copyrights lasted for just 14 years and could be renewed for another
14. This period has been gradually extended, especially lately: It has been
lengthened 11 times in the last 40 years, most recently by the Sonny Bono
Copyright Term Extension Act of 1998.

    Before the Bono Act, new or recent works copyrighted by individuals were
protected for life plus 50 years. Afterward, protection lasted for life plus 70
years. Corporate-owned copyrights were also extended by two decades, to 95
years, as were all copyrights for works produced before 1978. The push for the
new law was spearheaded by Disney, whose most famous character, Mickey Mouse,
was scheduled to enter the public domain in 2004, with Pluto, Goofy, and the
rest following shortly there-after. Disney is notoriously jealous with its
cartoon cast: In one of the most famous copyright cases of the '70s, it
successfully halted sales of Air Pirates Funnies, a risque underground comic by
Dan O'Neill featuring the Disney characters, even though the comic was clearly a
Mad-style parody.

    The prospect that just anyone would be allowed to produce his own Mickey
merchandise was evidently unthinkable at Disney HQ, and the company exploited
its connections to get the copyright extension passed. The very day Senate
Majority Leader Trent Lott became a co-sponsor of the bill, the Center for
Responsive Politics reports, the Disney Political Action Committee donated $
1,000 to his campaign chest; within a month, it had also sent $ 20,000 in soft
money to the National Republican Senatorial Committee. And Disney had help:
Other entertainment giants, from Time-Warner to the Motion Picture Association
of America, joined the lobbying effort, as did some well-known songwriters, such
as Bob Dylan, and heirs of dead songwriters, such as George and Ira Gershwin.

    The irony was rich: Disney, which draws heavily on public-domain characters
and stories in its own products (Aladdin, the Little Mermaid, Mulan), was
fighting to keep the cultural commons closed. And Dylan regularly bases his work
on the chord structures, and sometimes lyrics, of older folk songs--"The Girl
from the North Country" on "Scarborough Fair," "I Dreamed I Saw St. Augustine"
on "I Dreamed I Saw Joe Hill Last Night." Yet there he was, demanding royalties
from his music until 70 years after his death.

    Meanwhile, the Gershwin heirs, who didn't even write the songs that keep
them wealthy today, found themselves essentially arguing that the 20-year
extension would somehow be a further incentive to their dead ancestors'
creativity, a claim that smacks of either spiritualism or desperation.

    "It's a joke," declares David Post, a professor of law at Temple University.
"It's a disgrace. There is no better example that I can imagine, literally, of
Congress caving in to small, highly focused special interests. There is no
conceivable public benefit from the additional 20 years. Zero." Copyrights don't
bother Post, but retroactive extensions of them, which by definition cannot
affect the original creator's incentives, do. "Congress was bought," he
continues. "This was the sale of legislation in the crudest form. They should be
ashamed."

    If the Bono bill's intended consequences are bad, its unintended effects are
arguably worse. When it's unclear who owns a copyright--for an old B movie, say,
or a cult writer's early short stories, or an ancient R&B record--that
discourages companies from reissuing the work, even if there's considerable
interest in reviving it. The potential legal hassle is simply too daunting.

    Last October, the U.S. District Court for the District of Columbia rejected
a suit alleging the Bono bill was unconstitutional; the plaintiffs have appealed
the case, and it should be heard again by next August. One plaintiff,
56-year-old Eric Eldred of East Derry, New Hampshire, operates Eldritch Press, a
popular Web site filled with digitized editions of old volumes, ranging from
H.L. Mencken's In Defense of Women to books about boats. "I'm not interested in
putting up works by Stephen King," he says. "I'm interested in books that are
down a couple of tiers books that are interesting, but that publishers don't
find profitable to reprint." The new law threw some roadblocks in his way.

    Consider Horses and Men, a 1923 collection of short stories by Sherwood
Anderson. The book has long been out of print; the rights to it are owned by the
Sherwood Anderson Trust, which makes money by putting out scholarly editions of
Anderson's work. Many of the stories in Horses and Men will not be reprinted in
any of their Anderson anthologies, and those that are will often have the
punctuation "corrected" to reflect modem usage. Eldred would like to put the
original book up on his Web site, so people can read the out-of-print tales and
so they can compare Anderson's original punctuation to the new version. He
expected the book to pass into the public domain in 1998, allowing him to do
just that. But thanks to the Bono bill, the copyright won't expire for another
20 years.

    And that's no aberration. Another 1923 book, Robert Frost's New Hampshire,
has been out of print for more than 70 years; several of the poems have not been
reprinted, and many of those which have been reprinted now include--this seems
to be a theme--different punctuation marks. (It's also, Eldred notes, an
attractive book in itself, with handsome woodcuts he'd like more people to see.)
"Our real battle is not with the traditional publishers," Eldred explains. "It's
not with people who want to make money publishing books. It's with people who
want to lock up books."

    A law that keeps old books out of the public domain does the same for old
movies. One vocal opponent of the copyright extension is Sinister Video, a small
company that specializes in reissuing old exploitation flicks. (See "Mail-Order
Movie Madness!," April 1999.) "There are literally thousands of works,
particularly in the area of motion pictures, that are sitting on the shelf
waiting for the freedom of the public domain," the company noted in a statement.
"The large companies that own the rights to them have no intention of ever
making most of those works available again on a widespread basis." Thanks to the
Bono Act, "Copyrights on all works will be extended so that the major companies
can continue to exploit the small percentage of works that are still profitable
to them-the rest be damned!" Damned indeed: In 20 years, a lot of those
"protected" movies will have physically disintegrated. (For that reason, a film
preservation group and a movie archive have joined Eldred's suit against the
Bono law.)

    For those who can't wait for those movies to enter the public domain, there
is a loose distribution network that might satisfy them. But it exists in a gray
area: not quite illegal, but always subject to the possibility that someone will
decide a tape violates his copyright. For the most part, the videos are
available only by mail order, though some specialty stores carry them as well.

    One such store is Cinefile Video, a film buff's nirvana located next to Los
Angeles' famous Nuart theater. Founded last May by four refugees from another
video shop, Cinefile carries tapes that range from obscure industrial films to
footage from Orson Welles' unfinished Don Quixote, from Italian horror-porn to
classic Soviet silent cinema, from ancient TV specials to Grade Z movie
trailers. "We'll buy anything that we find that we know you just can't find
anywhere else," reports co-owner Hadrian Belove, "even if I don't particularly
like it. There's a certain respect I have for the archival value of having such
really weird tapes."

    Most of the store's wares are regular copyrighted tapes, though many of them
have gone out of print. Some have copyrights that have expired; others were
never copyrighted; with others, no one's sure who owns the rights at all, and
someone decided to release the films anyway. Some are foreign movies that don't
have official distributors in the United States, thus giving Americans the right
to sell dubs of them on demand.

    And then, Belove concludes, "There are certain companies that own things and
purposefully don't release them, either because they think they're embarrassing
or--who knows?--because of some vindictive streak." Disney, for example, will
not allow anyone to sell or rent Song of the South, a 1946 film of Uncle Remus
stories that is periodically damned for its alleged racism. It is indisputably
illegal to carry those movies, and Cinefile will not stock them. Belove does
have his own copies of several such tapes, however, and often personally lends
them to his store's customers for free--thus moving the transaction out of the
marketplace and out of the reach of the company lawyers.

    Song of the South, of course, would be covered by a copyright whether or not
the Bono bill was in effect. Disney's efforts to suppress it indicate that the
trouble with intellectual property laws goes deeper than the length of time a
work can be monopolized. It can erode free speech to monopolize a work at all.

    The most dangerous thing about restrictive copyright laws isn't what they do
to old works. It's what they do to new ones. Copyright has traditionally been
tempered by the doctrine of "fair use," which allows a limited amount of
appropriation for the purpose of parody or criticism. (That is why book critics,
for example, do not have to get permission to quote the texts they are
reviewing.) Fair use is not dead: In the 1994 case Campbell v. Acuff-Rose Music,
Inc., the Supreme Court ruled unanimously that the rap group 2 Live Crew had the
right to parody the old Roy Orbison hit "Oh, Pretty Woman," declaring that "a
parody's commercial character is only one use to be weighed in a fair use
enquiry," and that the new record was clearly "commenting on the original or
criticizing it, to some degree.''

    Unfortunately, the courts have not been consistent friends of fair use. Two
years after the Campbell decision, for instance, Dr. Seuss Enterprises
successfully convinced a federal district court to issue an injunction against
The Cat NOT in the Hat!, an O.J.-oriented parody by "Dr. Juice." Splitting every
hair in sight, the court ruled that the parody defense applied only when there
was "a discernible direct comment on the original." And Dr. Juice's book, the
court ruled, was lampooning the Simpson case, not The Cat in the Hat; Seuss'
story merely provided a narrative framework. The U.S. Court of Appeals for the
9th Circuit agreed: "While Simpson is depicted 13 times in the Cat's
distinctively scrunched and somewhat shabby red and white stovepipe hat," it
ruled, "the substance and content of The Cat in the Hat is not conjured up by
the focus on the Brown-Goldman murders or the O.J. Simpson trial." Therefore,
the book was bannable.

    Nor is fair use consistently protected for the purpose of criticism. There
is a long tradition of letting critics and scholars quote passages from books.
There is much less precedent for quoting, say, a 30-second excerpt from a movie
on a CD-ROM, or 10 seconds of a song in an online journal, partly because
CD-ROMs and Web sites have not been around that long and partly because the
courts seem to regard sounds and images as somehow different from text. The
editors of one recent critical collection, The Many Lives of the Batman,
discovered that they could not freely quote images from comic books, a tricky
problem if one wants to make an argument about the placement of words or images
within a panel or the relation of one panel to another. "If you can't quote what
you're talking about," comments MIT's Jenkins, a contributor to the Batman
anthology, "then at a certain point it becomes impossible to talk about it at
all. You cut off certain ideas from being heard."

    One of the most common sparks for a copyright fight is the practice of
sampling, in which parts of older records are spliced and recycled in newer
tunes. In 1991, for instance, the long-forgotten '70s pop star Gilbert
O'Sullivan, discovering that rapper Biz Markie had appropriated three words from
his song "Alone Again (Naturally)," successfully sued, not for a share of the
royalties, but to suppress Biz Markie's record altogether.

    These days the issue extends far beyond music. "We now live in a culture
that is based on sampling," Jenkins argues, "with new means of poaching and
redoctoring images. It's a new aesthetic." Where samizdat artists once had to
make do with photocopiers and audio cassettes, they now can use videotapes,
camcorders, Photoshop, digital film editing, recordable CDs, MP3 files, and the
Internet. The result has been an explosion of amateur films, fiction, and music,
all of which can be "published" for a minimal investment by putting them on the
Web.

    The most active amateurs are probably the members of various fan
subcultures. I own, for example, a CD called Do It Again: The Kover Kontroversy
Kontinues, a collection of songs composed by the British rock band the Kinks and
performed by members of an Internet fan group, the Kinks Preservation Society.
The contributors live everywhere from Holland to Hawaii to Brazil; some recorded
straightforward remakes, while others reworked the songs in interesting
ways--translating the lyrics into Portuguese, say, or adding a reggae rhythm,
or splicing in a verse from the folk standard "Wayfaring Stranger." The
performers never bothered to get the rights to the songs, figuring that wouldn't
be necessary for a communal, noncommercial, low-circulation project. Legally
speaking, that isn't necessarily so. Fortunately, the band doesn't seem to mind,
recognizing the project as an informal tribute, not a commercial competitor. ("I
personally gave Dave [Davies, the band's guitarist] a copy of the CD," reports
Paul Wykes, who o rganized the project, "and he seemed thrilled by it.")

    Not every copyright owner is so tolerant. Devotees of Star Trek, Star Wars,
and the like have long produced their own fiction set in their favorite show's
or movie's universe. In the last decade, this genre of writing has moved almost
entirely out of the realm of small presses and zines and onto the
Internet--where, being much more visible, it is also much more vulnerable to a
copyright infringement challenge. This is a particular problem for fan
filmmakers, a once-tiny group that has grown tremendously now that they can use
relatively cheap camcorders, editing software, and computer animation instead of
low-tech, silent Super 8 film--and now that their work can be viewed not just in
living rooms and at science fiction conventions but on any computer screen
hooked to the World Wide Web.

    Thus, a Web surfer with the right software--most of it available for
free--can download an astonishing array of homemade epics, varying widely in
tone and quality:

    * Star Wars: The Remake is a mimetic recreation of the first Star Wars film,
compressed into 15 soundless minutes. Made in 1980, this specimen from an
earlier generation of fan film-making will be utterly incoherent to viewers who
have not seen the original movie, and will be rather impressive, in an odd way,
to viewers who have.

    * Kung Fu Kenobi's Big Adventure is a seven-and-a-half-minute short by one
Evan Mather, with musical and visual allusions to everything from Mission:
Impossible to A Charlie Brown Christmas. Performed by Star Wars action figures
against a computer-generated animated background, this film is 50 times as
inventive as The Phantom Menace and about 100 times as entertaining. My favorite
scene: a recreation of the Jedi Council meeting in Menace; on a set made out of
Legos. The Jedi knight played by Samuel Jackson rises and delivers a speech,
sampled directly from a rather different film starring Jackson, Pulp Fiction:

    "Blessed is he who, in the name of charity and good will, shepherds the weak
through the valley of darkness, for he is truly his brother's keeper. And I will
strike down upon thee with great vengeance and furious anger--"

    Yoda interrupts: "Anger leads to hate."

    Kung Fu Kenobi violates more copyrights than I could count. All the dialogue
is taken directly from the soundtracks of other films. All the characters are
lifted from other films, too. And I doubt Mather paid any licensing fees for the
music. But it's an original work in itself, a funny movie that appeals even to
ogres like me who don't care much for Star Wars. Mather has made several other
pictures, each of them built, in different ways, on pop culture allusions; his
latest is titled Buena Vista Fight Club.

    * Star Wars: A Newfangled Hope is too big to put on the Web, but individual
sites have screened it as a streaming video at pre-advertised times. It consists
of the first Star Wars film in its entirety, with a new soundtrack dubbed over
the old one. I haven't seen it, but according to the Mos Eisley Multiplex, an
online guide to Star Wars fan cinema, it presents a world in which "Ben Kenobi's
a hairdresser, Luke is one horny dope, Threpio endlessly sings showtunes and
Darth has a major high-school crush on Leia."

    Redubbing--an honored comic technique ever since Woody Allen turned a Hong
Kong spy flick into What's Up, Tiger Lily?, if not earlier--is a favorite method
among fan directors. The most common target appears to be the Phantom Menace
trailer, which exists online in countless guises.

    * Macbeth Episode 5: MacDuff Strikes Back, an English project by some New
Jersey high school students, is a 17-minute featurette reminiscent of the cult
video Green Eggs and Hamlet. By any rational standard, it is a bad movie: It
fuses Macbeth and the Star Wars films rather haphazardly, it's sometimes
impossible to make out what the actors are saying, and the filmmakers didn't
bother concealing the fact that they were shooting inside a school.

    But it would take a cold-hearted snob indeed not to appreciate this movie,
or at least the spirit behind it. There's a message on the directors' Web site,
a few sentences that sum up the spirit of the micro-moviemaking movement: "If
you have a video camera lying around, and better yet some editing equipment
(pretty cheap for computers nowadays), go experiment. Be your own director. Go
Hollywood...use a skateboard for dolly shots, or a fishing rod for special
effects. It's fun..."

    That is, ultimately, the best argument for letting movies like this exist.
It's not just that there's a sizable subculture that wants to watch them, and
it's not just that sometimes a director like Evan Mather will make something so
fun that even nonfans will enjoy the results. These movies are a first rung in
the art of filmmaking, a chance for budding actors, writers, and directors to
learn the rudiments of their craft. If those young auteurs want to adopt bits of
the Star Wars mythos in their films, well, why shouldn't they? Star Wars is a
part of our culture; it's a shared experience. And as Jenkins points out, "If
something becomes an essential part of our culture, we have a right to draw on
it and make stories about it.... The core question is whether First Amendment
protections include a right to participate in our culture." And not just to
participate, but to criticize: A law that prohibits a Star Trek devotee's
homages to his favorite show also restricts a Star Trek hater's right to parody
the progra m's militarism, its view of sex roles, or its vision of the future.

    There's a common-sense issue here, too. It is legal, after all, to write or
improvise one's own Star Wars adventures using action figures; that is, indeed,
what the toys are for. It is legal to record those playlets on film or video;
this is known as "making a home movie." Shouldn't it be legal to show those home
movies to anyone you please? Especially if it's all done on a nonprofit, amateur
basis, with no threat of direct, head-to-head competition with the official Star
Wars pictures?

    LucasFilm has taken an inconsistent approach to its online imitators. Some
fan films--such as Kevin Rubio's Troops, a Cops-inspired parody I have not
seen--have received Lucas' warm praise. Others, such as the Australian-made The
Dark Redemption, have received letters from lawyers telling them to shut down
their sites, or else.

    If copyrights have grown more restrictive over the years, trademarks have
been transformed even more radically. Once restricted to preventing customer
confusion and protecting businesses' reputations, they are increasingly treated
as property that no one may appropriate at all. In 1996, for example, the New
York Racing Authority sued Jeness Cortez, a painter whose work often depicted
the Saratoga Race Course and, thus, various Racing Authority trademarks.

    In that case, the courts upheld Cortez's First Amendment rights. In other
cases, artists have not been so lucky. In one infamous incident, the Rock and
Roll Hall of Fame successfully, sued photographer Chuck Gentile over a poster
depicting its museum at dusk. The Hall of Fame not only alleged that the
poster's title--"The Rock and Roll Hall of Fame and Museum in
Cleveland"--violated one of its trademarks; it claimed that the building's
design itself was a protected mark, thus in essence claiming a property right in
the way part of the Cleveland skyline Looks. The U.S. District Court for
Northern Ohio sided with the museum and issued an injunction against Gentile's
poster. The U.S. Court of Appeals for the 6th Circuit later tossed out the
injunction, but the museum is still pushing its case in the district court.

    In part, this shift reflects the increased popularity of "dilution" laws
over the last several decades, culminating with the Federal Trademark Dilution
Act of 1995. Under this rule, it is illegal to produce, say, Microsoft brand
ramen noodles, even though that other Microsoft isn't in the noodle business,
lest the lousiness of your pasta undermine the software company's reputation.
When dealing with a famous mark, such as Microsoft, the dilution doctrine makes
some sense: There is, after all, a reasonable argument that commercial
misrepresentation is afoot. The courts have stretched the doctrine out of shape,
however, applying it with little regard for whether the trademark in question is
famous enough for "dilution" to be a possibility.

    Furthermore, the very definition of trademark has been expanding for the
last 10 years. Writing in the Yale Law Journal, Mark Lemley of the University of
Texas notes that "companies have successfully claimed trademark rights in the
decor of their restaurant, the 'artistic style' in which they paint, the design
of their golf course, the shape of their faucet handle, the diamond shape of a
lollipop, the 'unique' registration process of their toy fair, the shape of
their mixer, and the design of their personal organizers." At some point, this
stops being anything more than a way to club your competition.

    The fiercest trademark battles, though, involve words, not images. As
e-commerce sweeps the Internet, domain names--those ugly streams of letters that
end with "org" or "net" or "com"--have become more valuable, and some companies
have become upset over URLs that bear too great a resemblance to theirs. Many of
the resulting conflicts don't even make it to court: The very threat of legal
action is enough to cow the alleged transgressor into dropping its address, even
if he'd probably prevail before a judge. "A lot of this is just bullying,"
comments Temple University's David Post. "A lot of these claims are totally
spurious." But the simple cost of defending themselves is often too much for
those on the receiving end of a legal threat. The plaintiffs in such suits tend
to have more money and lawyers at their disposal.

    Besides, given the vagaries of the justice system, the defendant just might
lose. Late in 1999, a judge ordered etoy.com, a Web site run by some European
performance artists, to take down its site or pay a fine of $ 10,000 a day. Its
URL, the court ruled, violated the trademark held by the online retailer eToys.
com--even though etoy had been around since 1994, well before eToys existed. If
the older site is finally saved, its rescuer will probably be public opinion,
not the common sense of a judge or jury. Two weeks after the injunction, eToys
suggested that it may voluntarily withdraw its suit, its reputation battered by
constant protest on the Internet. (At press time, the case is not yet closed.)

    Now Congress has gotten involved, passing the infamous "cybersquatting" law
in late 1999. Cybersquatting is the practice of registering someone else's
trademark (or a famous person's name) as a domain name, usually in hopes of
selling the domain to the trademark holder later. The new law prohibits such
speculation, imposing fines of up to $ 100,000 and, in the process, undermining
the adjudication process already hammered out by the members of the
International Corporation for Assigned Names and Numbers, a.k.a. ICANN. Civil
libertarians worry that it will also intrude on our right to use trademarks in
real sites' addresses--that if I devote a site to criticizing Shell Oil and call
it www.shelloil.org, or even www.shelloilstinks.org, I may be breaking the new
law.

    While it would be a good idea to repeal the cybersquatting and dilution
laws, one could probably avoid even more trademark battles with more prosaic
measures. Post suggests expanding the range of domain names: If eToys.com could
have called itself eToys.toys, he argues, the problem might never have emerged
in the first place. There is also, he adds, a case for adopting the so-called
"English system," in which a lawsuit's loser pays the winner's legal costs. Such
an arrangement poses some problems of its own, but it would clearly discourage
frivolous, bullying suits.

    For centuries, our popular myths have enshrined the "romantic" or "heroic"
author, conjuring new books out of nothing but his solitary genius. This image
is popular with nonwriters, because many of them do not know how writing is
done, and it is popular with writers, because it flatters us. It is, however,
untrue. Every book, film, and song in the world draws on an existing cultural
commons. Creativity rarely, if ever, means inventing something out of nothing.
It means taking the scraps and shards of culture that surround us and
recombining them into something new.

    When the government tells us we can't use those scraps without permission
from Disney, Fox, or the Sherwood Anderson Trust, it constrains our creativity,
our communications, and our art. It tells us that we cannot draw on pop songs
the way we once drew on folk songs, or on TV comedy the way we once drew on
vaudeville; it says we cannot pluck pieces from Star Wars the way George Lucas
plucked pieces from foreign films and ancient legends. The consequences are
staggering. Imagine what would have happened if, 100 years ago, it had been
possible to copyright a blues riff. Jazz, rock, and country music simply could
not have evolved if their constituent parts had been subject to the same
restraints now borne by techno and hip hop.

    Few would argue that artists shouldn't be able to make a living from their
work, or that customer confusion is a good thing. But we've stood those ideas on
their heads. Rather than promoting enterprise and speech, copyrights and
trademarks often restrain them, turning intellectual property law into, in
Jenkins' words, "protectionism for the culture industry."

    Fortunately, the state simply isn't big enough to enforce every intellectual
deed on the books. You can still find Alexander Thompson's  Buffy  transcripts
on the Web, even though he's taken them down: Several fellow fans had already
downloaded them and posted them to sites of their own. Copies of The Dark
Redemption are still floating around--if the movie itself isn't online, people
willing to sell you tapes are. Even The Cat NOT in the Hat! persists, not as a
book but as a frequently forwarded e-mail. The overzealous enforcement of
copyrights and trademarks may chill speech, but it won't kill it.

    But the chilling is bad enough. Americans are not mere passive consumers,
dully absorbing images invented in distant corporate laboratories. We hatch our
own ideas and compose our own stories, drawing on pop culture without absorbing
it blindly. We should look with disfavor on any law that tells us to shut up and
get back on the couch.

    Jesse Walker (jwalker@reason.com) is associate editor of REASON.

    On the Web

    * The  Slayer  FanFic Archive (online  Buffy  fandom): http://www.slayerfanfic.com

    * Eldritch Press: http://eldred.ne.mediaone.net

    * Do It Again: The Kover Kontroversy Kontinues:
kinks.it.rit.edu/cgi-bin/MusicSearch.cgi?album=related/album-doitagain

    * Mos Eisley Multiplex (Star Wars fan film links):
http://www.jitterbug.com/starwars/index.html

    * Star Wars: The Remake:
 http://home.earthlink.net/~jimjongsma/StarWarsRemake/Page001.html

    * Macbeth Episode 5: MacDuff Strikes Back:
 http://www.glenridge.org/macbeth/mainpage.htm

    * Evan Mather's movies:  http://www.jedinet.com or http://www.evanmather.com/