The Avengers and Copyright Reform

In honor of the most shoppingest weekend of the year, I'd like to discuss how The Avengers got me thinking about copyright reform.

You see, following the mammoth success of The Avengers this past summer, Marvel Entertainment (owned by Disney) planned to release a six-film box set just in time for the holidays that contained Blu-rays of The AvengersIron ManIron Man 2The Incredible HulkThor, and Captain America. The films would arrive in a package that replicated the metal briefcase used in The Avengers to carry the film's MacGuffin, the "tesseract."  Here's what it looked like:

Unfortunately for Marvel, the release of the box set was put on hold when German luggage manufacturer Rimowa GmbH sued for trademark infringement and trademark dilution, alleging that the silver briefcase for the six-movie collection was too similar to one of its products, and that releasing the box set would hurt its brand.  The good news for consumers is that while it won't be ready for your holiday shopping needs, the set WILL be released in April with new packaging and special features.

When I read Rimowa's complaint, I rolled my eyes at their claim of trademark dilution claim (they may have a good case on the infringement claim... but I won't use this space to weigh the merits of that argument).  "Here we go again" I thought.  "Another instance of one giant company wielding their intellectual property as a weapon against another giant company so they can squeeze out a few more pennies."  Then my next thought was "at least it's Disney getting sued and not some poor struggling artist."

As you know, I'm a big supporter of intellectual property protection, especially as it pertains to individual artists and creators.  But when the copyright holder is a multinational corporation, my support for protection becomes less absolute.  I don't like bullies and I especially don't like it when giant corporations use their copyrights* to trample over innovation, even if that innovation means some copyrights get infringed.  And to my surprise, a Republican staffer named Derek Khanna agrees with me, writing a policy paper on copyright reform that recently caused a stir.  In the paper, Khanna argues chiefly that our current system of copyright law actually harms the free market, hurts the consumer, and stifles creativity and innovation.  Khanna further argues that the powers to protect intellectual property granted to Congress in the Constitution were designed not solely to benefit the creator.  Rather, they were created to benefit the public, and creator compensation was just a way to fulfill that need.  FYI, the actual text of the Constitution, Article 1, Section 8 reads that Congress shall have the power:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Khanna recommends several fixes, most of which I agree with.  Expanding Fair use protections (basically, allowing more people to use copyrighted material for certain purposes without paying for it), lowering statutory damages (current damages can see you paying upwards of $150K for each infringed work.  Khanna argues that it's un-American to charge someone millions of dollars for downloading a few dozen songs), punishing false copyright claims (I've talked about this issue before), and significantly lowering the length of copyright ownership from "life of author + 70 years" to 14 years, renewable every 14 years while the author is alive.  Khanna's paper proved so controversial that 24 hours after publishing it, his Republican bosses removed the paper and issued a letter stating that the paper hadn't been properly vetted.  Which makes sense after all; the major media companies (who are also the biggest copyright holders in the world) are big political donors.

In the case of Rimowa v. Marvel, the stakes aren't very high for the average consumer.  People will get the box set they want eventually and if they can't wait, they can go out and buy the films individually.  Disney is going to be just fine... maybe a few million bucks poorer, but that's about it. The underlying issue here is larger than whether I can go and buy a cardboard case filled with movies.  It even goes beyond how much power our current copyright law grants to companies that can use those copyrights to bully the small artist and innovator.  The issue really boils down to whether companies have the same rights as individuals.  Should a company get the same rights I get under the law?  While Khanna's paper rarely singles out corporations as the biggest profiteers and abusers under our current copyright law, it's difficult to imagine that he wasn't thinking about them directly while writing it.   In one passage, he says that "Current public policy should create a disincentive for companies to continue their copyright indefinitely..."  The whole point of the paper seems to be this: copyright too often is used as a weapon to harm individual creators.  Disincentivize that by making copyright ownership less profitable for the corporate owner.  I wholeheartedly agree.  Actually, I will agree with and support just about any reform that takes the power out of the hands of the corporate copyright owner and gives it back to the individual creator.  Art should belong to the artist.

And if the end result is that I can get my Avengers box set sooner than later, then that will be a welcome side effect.

* For the record, yes I do know the difference between copyright and trademark.  For the purpose of this post, however, I'm treating them as interchangeable because they protect different types of the same thing... intellectual property.

 

Greg Kanaan

The [Legal] Artist, Boston, MA, USA