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Fair Use, Disney and USC
by Josh Eiserike `

Due to its construction it may take viewers a few moments to orient themselves into the narrative flow of this clip, taking as small as one-word fragments from Disney cartoons to create a basic overview of copyright law. On that level it works, but the satire here is a little more oblique- Disney is notorious for its protection of its properties, often to Draconian levels.

A friend worked for Disney and reported such practices as any intellectual property created at the time of working for Disney would be owned by Disney, regardless of if it had been created for Disney. This is similar to how NBC owns Conan O’Brien’s intellectual properties, or how many creative employers makes its employees sign some sort of form giving them the rights to all properties created. It’s a trade-off—a creative job in exchange for agreeing to only create works for the company (although it’s funny to imagine that had Conan worked for Disney, “The Masturbating Bear” would now be a Disney intellectual property, alongside Mickey, Donald and Goofy). It’s a tough trade-off for any creative-minded person to be in. They’d at least like some recognition for their work, beyond owner ship.

Interestingly enough, a new subsidiary of Disney—Marvel Entertainment—has great benefits for its creators (speaking strictly of the comics). Indeed—any character created for Marvel becomes Marvel’s intellectual property, but Marvel launched what is called the “Icon” imprint—a way for its top creators to publish creator-owned books that they retain all intellectual copyrights to. One such example is “Kick Ass”- published through Marvel, but which the intellectual property remains in the hands of the creators, Mark Millar and John Romita, Jr.—and therefore they are positioned to make a lot more money off of the “Kick Ass” movie (it should be noted that DC has a similar imprint, Vertigo, but these creator-owned stories are often more adult-oriented under the Vertigo brand).

When Rheingold writes, “The way intellectual property is defined by international law, the kind of political regulations that govern spectrum use, the degree of extension of the rights of corporations to control the use of creations of individuals and to exert control over what others can create or distribute, will determine whether a cornucopia or a tragedy of the anti-commons occurs. (The tragedy of the commons is the despoiling of a shared resource because there is no way to exclude individuals from consuming it; a cornucopia of the commons emerges when aggregated individual self-interest of many people adds up to something that multiplies everyone's resources instead of subtracting from what everybody has access to; and the tragedy of the anticommons renders a shared resource worthless by allowing too many interests to exclude others.)” he’s talking about the ever-open society on the Internet. This is exactly what the Disney clip refers to with “fair use”- now more than ever the Internet makes it possible for users to “own” material to which they do not hold the copyright.

Consider again the example of the Marvel creators able to continue to create new works, while adding to Marvel’s library of characters. This seems to be a great, forward-thinking solution that doesn’t stifle creativity. However, in the case of Disney and other institutions creator rights seems to be the least important aspect—its’ more about maintaining a corporate image. (Indeed, as Disney would not want its brand to be associated with “Masturbating Bear,” it also might not want its brand to be associated with some of the Icon books which it now publishes).

Consider for a moment another corporate institution paying lip-service to “copyright” while really looking out for its best interest- USC’s School of Cinematic Arts.

Traditionally USC directing students have been allowed to adapt copyrighted material for directing exercises. These films never see the light of day beyond an actor’s reel and are not allowed to be posted online (indeed—the University regards them as “exercises,” not films). However, this past semester all copyritten material has become forbidden under “legal concerns.” Looking at the outlines for fair use outlined in the Disney clip above this is, of course, preposterous. These exercises—filming five minute scenes from existing whole works (only a small fraction of the work) are as much a threat to the original copyright as is a diorama for a book report in grade school. Clearly, in an educational setting with no money to be made or damage to be done to the original work (as no one really sees these outside of the classroom), these exercises fall under fair use—and USC’s reactionary policy is more about image and public relations with studios than anything else.

But who can blame corporations like Disney or USC for protecting its image? Or, as Rheingold writes,

“Powerful interests recognize the dangers such a world poses for business models that depend on controlling and metering access to content, conduit, or services for a mass market, and they are acting to protect their interests. That's what digital rights management, extension of copyright laws into what formerly had been the public domain, the broadcast flag, spectrum regulation policies that favor archaic technologies and incumbent licensees, trusted computing systems that bake all these rules into monopoly silicon are about.”

This Commentary is related to the following Clips:
A Fair(y) Use Tale by Eric Faden (2007) Professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms. http://cyberlaw.stanford.edu/documentary-film-program/film/a-fair-y-use-tale