Who Should Own Stories?

If I tell you a story, can you retell it to someone else? What if you act like it’s yours and add your own embellishments? What if I had charged you $5 for my story and now you’re charging $10? How about if I told it to you 15 years ago? Do all the answers change if the story involves Superman?

Recently, the addition of a huge influx of media into the public domain and Lindsay Ellis’s video on The Death of the Author (what impact should the author have on a work or does a work stand completely separate?) made me start thinking about who owns stories (with stories being everything from books to characters to songs).

The natural answer is that the creator of a story owns it. But this often isn’t the case with works eventually going into public domain and many of the most popular stories being owned by corporations (in particular one corporation coughDisneycough).

But who should own stories and for how long?

What Does It Mean to Own a Story?

Before we get into our main competitors for ownership, let’s discuss what ownership of a story is. I’m going to focus on the legal definition, since the legality of who controls a story decides what can be created and shared. It’s that sharing part that’s critical.

You can create anything you want. For example I could write a highly provocative short story involving Mario, Harry Potter, Superman, and Mickey Mouse, but as soon as I tried to publish it/share it with the public a whole lot of lawyers would tell me to take it down.

If I’m lucky, I could avoid detection. But the higher success I have with a copyright story/characters and the more I want to profit from it, the better my chances of getting caught and being shut down. And, if I can’t share a story, it’s hard for me to argue I own it.

So how does copyright work?

Once you’ve put something down on paper or recorded it, you have the copyright which is “the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.”

So, once you put something down, no one else can do anything with it until the copyright expires. Copyright law has changed over the years, but currently the copyright expires after the life of the author plus 70 years (maybe longer based on the circumstances). If you want all the details on copyright, there’s a great write-up here.

Given enough time could anyone write their own Batman story, publish it, and sell it? Not exactly.

Characters and names can also be trademarked to prevent confusing products from one seller with another. Because people could confuse your personal Batman comic with DC’s Batman comics, as long as DC holds the trademark you can’t call your comic Batman. You could have Batman as represented in certain issues that are in the public domain, but you can’t put the name on the cover, and you’d open yourself up to possible legal battles.

But surely the trademark must also expire eventually, right? Nope. As long as DC follows the rules to keep the trademark current, they can control “Batman” forever.

There’s wiggle room with fair use (parodying or transforming a work/story/character), you can of course use a story with permission from copyright holder, and laws vary from time, location, and courtroom decision. If there’s a specific use case you’re curious about, Google is your friend.

But if you create something original, all you have to do is make it and it’s yours for your lifetime plus 70 years, right?

Yes, unless (have you a noticed a trend here?) you created that story as “work for hire.” Different industries handle ownership differently. Book publishers usually give the creator the rights to the book, but with comics, music, or movies the creators aren’t the owners. Instead, a company has a contract with the creators to make the story as a “work for hire” with the company owning the story.

Then the company receives the copyright protection on the story until 120 years after the creation or 95 years after the publication of the work, whichever comes first.

Whew! Okay, now that we have a loose idea of how ownership works, let’s explore the current possibilities of ownership, so we can start thinking about who should ideally own stories.

You Make It, You Own It

You create a story and publish it on your website (hey, I’ve done that!), you wouldn’t want someone copying and pasting it on their website. It’s your story!

I wouldn’t argue against the author having ownership. They made it, so they should have the right to publish it and monetize it (the relationship of art and money is for another day).

But for long should the author have full control over their work and what point should others be allowed to freely engage with their work?

Currently, the author has their full life time and their estate can control the story for 70 years after their death. All use of the story which don’t fall under fair use protection exist only at the permission of the author.

Lindsay Ellis highlights this dynamic in her video on the Death of the Author with the example of how Anne Rice shuts down any fan works/fan fiction based on her characters and stories. Meanwhile, J.K. Rowling encourages fan writing and creations.

Your Company Has the Lawyers, You Own It

Since J.K. Rowling likes fan works, StarKid production (aka a bunch of college kids at the time) had no trouble making and sharing their parody musical of Harry Potter, A Very Potter Musical, right?

Well, you see, there were some movies made…

Let’s look at a quote from the Wikipedia page about A Very Potter Musical.

“Due to the nature of the musical, Team Starkid is allowed by Warner Brothers to host the musical on their channel and owns the rights to the songs and script, but as they do not own the rights to the Harry Potter characters they cannot make money off the production, nor can they give the rights for the show to any other production company: the University of Michigan version is the only ‘official’ production.”

Wikipedia

Thanks to the films, Warner Brothers is involved and because they don’t want to look like complete monsters/suffer fan backlash, they allow the musical to exist online as long as 1. StarKid makes no money off of producing it and 2. they never do it again. How kind of them.

For their Potter Sequel, StarKid avoided specific copyright/trademarked words such as Azkaban, emphasized the parody aspect, and made clear they were making no profits.

However, fair use is always up for argument in the courts. Bigger corporations have the funds for a legal battle that independent creators do not. Often it’s easier to take down a work when corporate lawyers come knocking than spend the time and money fighting them even if you think your work is fair use.

Companies also love to reuse the story property they already own. No having to pay a new creator for film or tv rights if the original deal was negotiated in the company’s favor. And they already have name recognition. This is why there’s a new Charlie’s Angels movie planned to come out in 2019.

It’s Finally Old Enough That Everyone Owns It

You may have seen articles at the beginning of the year about what a big year it was for public domain. Works from 1923 are finally free game!

We’ve got some Charlie Chaplin, some Rin-Tin-Tin, some Agatha Christie, some Virginia Woolf.

You can throw public domain works up on YouTube, copy and share them, and edit from them for your own projects as much as you want. If you want to write a 1,000 page sequel to Charlie Chaplin’s The Pilgrim with the same character and references to the original, you’re now free to do so and sell it (then you’ll have a copyright on your new story, so someone can’t write a sequel to your sequel for a long time).

Famously, It’s a Wonderful Life met with mixed reception when it first came out and vanished into obscurity until a television station noticed the copyright had lapsed. Back then it was only 28 years and could be renewed for another 28, but someone dropped the renewal ball. Since the movie was free to air, stations starting throwing it on for extra December programming. Now it’s considered a classic.

It’s also been taken back out of public domain thanks to a 1993 court case. That’s the power of lawyers.

But the big idea is that being in public domain can renew interest in stories and media that missed out on their first go around.

So, Who Should Own Stories?

Okay, we’ve covered that creators, corporations, and the public can own stories. But who should own them, and just as importantly, for how long?

You might have noticed my bias peeking through already, but I think copyright law has gotten out of control. I definitely think creators should have protections for their work. I want my work to be protected, and I wouldn’t want a company making a movie based on something I wrote without paying me.

But, let’s say we returned to the default copyright being 28 years with the option of renewing for another 28 like it was for It’s a Wonderful Life orginally. That’s 56 years. Right now, we wouldn’t be getting black and white silent films in the public domain. We’d be getting The Birds, The Great Escape, The Pink Panther, and more. Do you think the creators of those films would feel ripped off if their work was now in the public domain?

Stories I write this year won’t be in the public domain until potentially 2075. To quote John Mulaney, “that’s not a real year!” I’d be 83 years old. Let the public have it. I’ll be sleepy.

But thanks to corporate lobbying we have our current laws. And, in 1998 works were kept out of the public domain for an extra 20 years than they would have been available then. Public domain would at least be at 1943 now if not for corporate meddling.

The only people that benefit from such long copyright terms are the corporations. Disney gets to make sure no one gets their hands on Steamboat Willie and classic Mickey Mouse. Meanwhile, creators often find themselves languishing in obscurity until they get their second chance at their work being discovered.

The irony is that companies like Disney also love the public domain. How many Disney movies are based on old folk tales? How many shows or movies with Sherlock Holmes have you seen? They benefit from more stories being in the public domain as well!

Could we maybe lose out on some companies being less interested in keeping old characters around if they know they can’t profit off them as long? Maybe. But, if a popular character is in the public domain another company or creator can put their own spin on it and release it.

Imagine if we limited copyright to only 30 years. Any director and company could take the original Star Wars trilogy and make their own sequels or prequels (not considering trademark issues). A Star Wars movie by Edgar Wright or Quentin Tarantino or Ava DuVernay or Boots Riley? Disney wouldn’t allow it, but I’d sure enjoy seeing it.

We can even catch glimpses of what that would be like with high profile fan projects. Adi Shakar, currently known for his work on the new Castlevania anime on Neflix, has created a variety of “bootleg” versions of famous properties with high production values and released for free.

Most famous is his dark, grimy short film take on the Power Rangers. The video was forced to be taken down and was only allowed back up thanks to fan support. To quote an article from The Independent about Shakar: ‘“The idea that someone can tell someone else not to make something is insane censorship,” says Shankar. “As long as you’re not making money from the venture [which he says he isn’t] and it’s your own creation then what’s the problem?”’

From a different section: “These shorts are just fun ventures for me, taking well known characters in different directions. But sadly you’ve got people who create documents saying they own images and characters, and that the public can only be passive participants in popular culture. That’s crazy!”

We have protections for corporations. Why shouldn’t we have protections for free fan creations around our favorite stories? I can’t think of a good reason that a lawyer should be able to shut down a free, student performance of a Harry Potter parody musical.

These free fan projects illustrate the amazing things that could be created in a world with shorter copyright terms and more works in public domains. Creators and corporations could still get 28 or 30 or 56 years to see a return on a piece of their work (I personally lean more towards the 30). And fans could have their free works protected in the meantime.

Free fan works often create more interest and profit for the original benefiting the owner, so they both win. More works in the public domain would let stories be enjoyed freely by more people. If creators and corporations want to cash-in they can always make a new sequel. They’ll just have to compete if someone makes a better one.

Stop letting corporations own stories forever. Stories for everybody!