Perspectives on the Arguments of Free Culture

Lessig (2004) argues in Free Culture that citizens are now unable to have the same forms of creative output that this country saw in the nineteenth and twentieth century because of the current expansion of scope and restriction in copyright regulations. He makes these arguments through the use of several stories about past innovations that were the result of an innovative minds building on the previous works of artists who did not possess the current copyright restrictions. Among the more prominent examples offered are Walt Disney’s use of previous silent films and Grimm’s’ Fairy Tales to construct the Disney Franchise as we currently know it and the development of Kodak’s personal camera technology. Lessig labels this kind of use as creative and beneficial to our culture. At firs glance, it seems a bit unfair to the Grimms and Buster Keaton that Disney took their creative ideas, profited from them, and gave them no legitimate acknowledgement in his final product. Their can be an argument made for use on the basis that Disney was creating a parody of Keaton’s work, but I see no such correlation with the Grimms’ fairy tales.

To illustrate the development of our current copyright system, Lessig (2004) references the hypocritical lobbying of companies like Disney to protect their creations that built on the previously unprotected creative works that Disney creatively “pirated.” I would agree that this practice is hypocritical in the sense that Disney’s corporation would claim that the cartoon likenesses are their intellectual property, even though they are derivative of other people’s writing and development. In my mind, Disney has grounds to protect against any direct use of their content and their images only if they bear no resemblance to the descriptions that the Grimms or Buster Keaton made. I do understand the true motive for such a move, though, as Disney would like to limit potential competition. That said, Disney created a legitimate market replacement for someone else’s work, a violation of fair use in our current legal system.

All discussion of infringement aside, this reading made me curious about what types of creations today’s giants might be leery of. A simple examination of YouTube illustrates some examples. Might George Lucas (or the creative powers behind Monty Python) be concerned about a fan’s creativity in a project like the fan video displayed here? Using similar logic, might the Wachowskis and the Jim Henson estate be concerned about students using their material to create this fan video?

If the people producing such digital videos could create a competing market, Lessig might argue that the creators would litigate. The videos appear to be a parody of each of the previous creative projects. Through this parody, they exercise the same “creativity” that Lessig wants fostered. Moreover, they are not presenting a replacement for Star Wars in the competitive market. When applied to fair use, it would seem that Lucas would have no argument.

Recent Lucas-approved productions have brought fans of the franchise parodies on Seth Green’s Robot Chicken, as well as Seth McFarland’s Family Guy. In light of these productions, perhaps Lucas would prefer such forms of parody go uncontested. Through YouTube, fans are creating a sort of viral marketing for Star Wars that Lucas might not be able to generate from his own Web sites. Moreover, both of the television shows that made Star Wars parodies cooperatively worked with Lucas and were able to do more creatively than previously seemed possible. We have seen other popular science fiction franchises (Star Trek leaps to mind on more than one occasion) work with Family Guy in the past.

In general, I find Lessig’s argument interesting and correct that current copyright regulations are stifling the creativity of media literate citizens. One element I think he could do without is reflecting extensively on his failure in arguing against copyright regulations in front of the Supreme Court. On one hand, a dry recount clearly explaining his stance and the judgments might illuminate the faulty stance of the current court (and his failed arguments) effectively. On the other hand, I feel that Lessig spent far too much time emphasizing his anger with the justices and his failure to stem the tide of constrictive copyright regulations. His commentary on the Eldred litigation makes the previous 208 pages of historical and contextual analysis seem like sour grapes more than the reasonable assessment they really are.