TCS Daily

Rights and Wrongs

By Glenn Harlan Reynolds - February 6, 2002 12:00 AM

Larry Lessig opens his new book, The Future of Ideas: The Fate of the Commons in a Connected World, with a strange-but-true story of moviemaking. Moviemakers, we learn, must now "clear" every image that appears in their films, obtaining permission even for minor items like posters in a dorm room, the advertisement on a passing truck, or a can of Coke in someone's hands.

It used to be, Lessig reports, you only had to do this if the item was immediately recognizable; now you have to do it if it shows up in a single stop-motion frame. Even the designers of buildings and furniture included in movie scenes are trying to claim the right to stop films that contain images of their products without permission.

The result: not only must a filmmaker hire the usual hordes of lighting technicians, camera operators, makeup people, and so on - now he or she must hire a staff of people to handle all of this paperwork. That's a nuisance for big moviemakers, and a terrible burden on small ones for whom the overhead is a much bigger burden.

I have a similar story to share. One of my students, a former producer/A&R man for a major record label, hit on the idea of producing a CD of Tennessee football-themed hip-hop tunes. The tunes were all original, except for the obligatory cover of "Rocky Top," so it wasn't necessary to do much in the way of securing rights to the music.

But because the cover image was to feature University of Tennessee football players, and because the songs were about Tennessee football, he had to secure permissions from the
University of Tennessee, which claims a trademark interest in such things. (This sort of claim is a recent, though widespread, phenomenon). It's possible to argue about whether that's legitimate - after all, the University of Tennessee is a taxpayer-funded institution, devoted to the public good, and it's hard to see why it should be in the business of, effectively, licensing speech. But the legitimacy of these claims isn't the point. The nuisance value is.

Recording the CD - which is superb and highly professional in its writing, packaging, performance and production - was the easy part. The rights management was the hard part. My student conservatively estimated that he spent twice as much time (yes, you read that right) dealing with the collegiate-licensing issues as with the actual recording, production and manufacturing of the CD.

Money wasn't the issue. While I'm sure he would have been happier not to have had to pay the fees, the time, energy, and frustration were the real problem. "I would have been happy to pay twice as much," he said, "if I could have just been done with it." Instead, he was forced to spend a hugely disproportionate amount of time dealing with people who weren't very responsive, but who held a veto power over his project since - unlike the rights to "Rocky Top," which are under a regime called "compulsory licensing" - he couldn't simply pay a fee and go ahead. He had to have permission, and they didn't have to grant it. His fate was in their hands, and it showed in the way they treated him.

This, sadly, illustrates two trends with intellectual property law today. The first is that the terrain occupied by intellectual property is constantly expanding, and now includes things previously considered part of the public domain. (In the latest ad absurdum example, the estate of Flight 93 hero Todd Beamer is trying to claim exclusive rights to his phrase "Let's roll!")

The second is that, because the new rights aren't subject to compulsory licensing, the new regime gives too many people the right to say no, and to demand investments of time, energy, and money that are far out of proportion to whatever societal interest in rewarding creativity is present - if, indeed, any is present at all. (What, giving the University of Tennessee rights over the phrase "It's football time in Tennessee!" is going to foster innovation? Get real.) Just contrast the new rights with the old: Want to record a song that someone else has written? It's easy. So long as the song has been released somewhere already, you can get the rights to produce a cover version for a few cents a copy, and the publisher and songwriter can't say no because the license is compulsory. On the other hand, if you want to produce a film that has a scene taking place in a room that has a James Dean poster on the wall, or a CD about Tennessee football, then you'd better prepare for hassles, because if the owners of the rights say no, there's nothing you can do. You're at their mercy.

In fact, while intellectual property laws are supposed to foster creativity, they are now starting to have the opposite effect, casting stumbling blocks into the path of creative artists. Worse yet, those stumbling blocks are most severe with regard to the small and independent artists who produce the lion's share of truly creative work, because they can't afford to maintain staffs of specialist lawyers.

It's time to change that. There are two ways to do this. The first is to get rid of the rights. There's something to that approach: the framers of our constitution intended intellectual property to be a fairly narrow exception to a general rule against government-created monopolies, which they regarded as bad. The exception was justified, they thought, because patents and copyrights, unlike most monopolies created new wealth, and were limited in time. But many of the new rights that people are asserting don't fit this definition. (See the Tennessee football example).

But the real problem isn't so much the money extracted by these monopolies. It's the hassle, and the paralyzing fear of litigation. That could be dealt with simply by requiring compulsory licensing, so that every person whose IP "rights" are involved, however tangentially, in a project doesn't get a veto power.

But something has to be done, not only to foster creativity, but also to save intellectual property law itself. Ultimately, compliance with the law rests more on people's sense of ethics than on the law's letter. If unchecked, the expansion of intellectual property protections into new and bogus areas is likely to undermine the legitimacy of intellectual property law itself.


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