SETTING MICKEY FREE

"Most Americans believe that Mickey Mouse should be owned by Disney forever." Larry Lessig, Stanford Law School, Conference on the Public Domain at Duke University Law School

Objective:

Produce a movie that (a) changes the public's opinion, and (b) provides a prototype open-access license and alternative economic model for generating income for film producers and talent … while allowing free distribution to millions of people and the granting of the legal right to anyone to copy and extract from the open source film.

Comment:

This short idea piece for a potential project arose on the plane home after listening to various presentations at the 2001 Conference on the Public Domain at Duke University Law School. Due to the unexpected hearing of Eldred v. Ashcroft by the U.S. Supreme Court there is perhaps less need for such a movie. Of course if Eldred loses there may be all the more reason to pursue these types of projects. If anyone is interested, feel free to run with it. HJ Onsrud

I. Changing Public Opinion

Proposal:

Create a documentary film on "how a cadre of the nation's best intellectual property professors are strategizing in pursuit of a U.S. Supreme Court challenge to the copyright extension act."

Concept:

Most of the story would be told through interviews with people on the street, people affected by the copyright extension act, literary scholars, art historians, and legal scholars.

The movie starts with a focus on how Disney has drawn many of its characters from the public domain (Little Mermaid - Hans Christian Andersen, Alice in Wonderland - Lewis Carroll, Mulan - famous Chinese poem, Tom Sawyer - Mark Twain, Sleeping Beauty, Snow White, Pocahontas, Pinnochio, Alladin, Robin Hood, etc.). The ability to draw from and build on the work of others has been a boon to creativity for Disney as well as for all other individuals and businesses in America.

On the street interviews:

Suggested questions to ask people on the street -

(1) Should companies be required to pay royalties to the family heirs of Clement Clark Moore in order to use images of Santa Claus in books, magazines or movies?

(2) Should companies be required to pay royalties to the heirs of Walt Disney in order to use images of Mickey Mouse in books, magazines or movies?

(3) If the answers are different, ask people to explain why?

If possible, ask leading politicians and movie stars the same questions. Members of Congress? Cher?

(Notes: 1. Ignore the Clement Moore versus Henry Livingston Jr. authorship debate since most people won't know about it and it's not germane to the primary message. 2. The copyright in Mickey was due to expire in 2004 until the recent legislative extension. When the work in which a fictional character first appears enters the public domain, the character is pulled along (Siverman vs. CBS, Inc at 50 according to Vanpelt). 3. Ignore Lauren Vanpelt's argument that Mickey is already free since the goal of the movie would be to free older materials generally, not just Mickey).

Literary and art scholar interviews:

Document through interviews the authorship of many of the works that Disney draws from freely without compensation to anyone. Explore the explicit benefits of numerous creators being able to build on each other's work over time. One can only assume that the Disney Corporation would continue to make money off of Mickey if he is set free, just as the company continues to make money off of so many other public domain stories and characters.

Plaintiff interviews:

No books, movies, poems or creative works of any sort will enter the public domain due to the expiration of copyright for yet another twenty years. Interview the plaintiffs in the law cases currently being pursued to overturn the Sony Bono Act of 1998. These are people who were stopped in their tracks from using materials that were about to enter the public domain and from using materials that were already in the public domain and were then withdrawn. (Eldred, etc - and/or use Melody Lane Graveyard examples, movie examples, etc.)

Legal scholar interviews:

Suggested questions to ask legal scholars -

"Why should anyone care whether Mickey is set free or not? If Mickey is making money for corporate America, isn't this good for our economy and America?"

Interview the following people to obtain their stories and reasons why they believe the copyright extension act needs to be overturned: John Perry Barlow - EFF, Yochai Benkler - New York University, James Boyle/David Lange/Jerry Reichman - Duke, Julie Cohen - Georgetown, Dennis Karjala - Arizona State, Larry Lessig - Stanford, Jessica Litman - Wayne State, Eben Moglen - Columbia, Pamela Samuelson - Berkeley, etc.

(Note: There are many public domain activists and artists that might be interviewed as well but these folks can actually add their own perspectives and art through derivative works under the licensing arrangement described below.)

An experienced independent film producer would gather and pull together the dialogue from all the interviews to present a cohesive story. One independent film maker who makes her living off of foundation grants, says the ballpark budgets she normally submits to foundations for creating a documentary film such as this would fall in the range of $100,000 to $350,000 - a one hour high quality PBS type of production being at the high end.

II. Catalyzing an Open Source Film Movement

A standard open-access license would be attached at the end of the film adhering to a variant of the General Public License (GPL). There also would be a contract between all parties involved in producing the movie that would serve as an example of how revenues, if they occur, might be distributed among the parties in an equitable and socially responsible manner. The goal is to establish a licensing framework in the context of a real-world film that could serve as a visible example of how an open source film movement might operate and be supported. Thus, it would serve much in the same way that Linux illustrates very visibly how the open source software movement can work.

A. The Open-Source License

The film would be copyrighted and the resultant work licensed to anyone to freely copy. A suggested notice printed on the fronts of DVDs or videotapes might read: "Please feel free to copy, give away or sell copies of this movie in accordance with the license listed at the end of the movie." In addition to distributing by DVD's and videotapes, lesser quality versions of the movie might be placed on web streaming servers in order to maximize exposure of the film to hopefully millions.

One major licensing condition would be that attribution in the form of the copyright statement must always be attached to any copy of the film. A second major condition would be that anyone creating a derivative work or using any portion of the film in another work must use the identical license. (Note: The EFF Open Audio License comes very close to what I envision.) In this manner, the identities of all contributors to derivative works, whether of video, audio or both, are always automatically maintained and identified. By this method it becomes possible for viewers to contact the producers of any parent or ancestral works to view or hear those earlier works.

One might envision this as a modern way of creating fairy tales. While we don't know the names of the numerous contributors to ancient competing versions of fairy tales, we would know the names of all those contributing to freely available open source films following this licensing process. One would simply provide rolling credits at the end of the newly created film but without the need to financially compensate those cited. If people use licensed work in another creation without providing attribution, the infringed upon party has a legal cause of action. Thus, the creator of the derivative work might as well give credit to the parent works to avoid such action since they can use the works for free anyway. Numerous versions of modern fairy tales might emerge. In each instance one would be able to trace back to those components in each ancestral document that contributed to the resulting collage.

This is the license that all those kids in your neighborhood making iMovies should want to place at the ends of their independent films. Thus, in ten years they might find cuts from their previous films incorporated into the films of other people with credit given to them in the new works.

One should not incorporate segments of video or music in the proposed "Mickie" movie that are drawn from other artists unless that material is also available under open source licenses (i.e. this would avoid the recapture problem of "It's a Wonderful Life" ). Fortunately, there is a growing collection of quality music that has used this approach. That is, the sound tracks for this movie are already waiting out there to be freely used.

Creator Motivations:

Why would anyone want to contribute to such creative activities without the ability to directly appropriate the results of their work? As Yokai Benkler argues, the explanation doesn't matter. What matters is that, regardless of theories on why people contribute, some will contribute. People will build upon the work of others if the effort provides some form of value to them, personal or otherwise.

Assume that an appropriationist artist such as Mark Host creates a new film with material drawn from other open source films. He would be able to legally sell and market his new film not because of any claim to intellectual property rights in the film but because of providing a service for delivery of high quality copies of his new creation.

Further, the license process provides the ability for every viewer to know the ancestor sources from which a current document was created. Thus, the licensing arrangement provides an opportunity to charge a fee to any person inquiring about and desiring a copy of an earlier source document. One may charge a fee for transmitting the requested work to the inquirer although no fee may be charged for property rights in the work. The more that segments from a work are used in derivative works over time, the more that the title of the work and the name of the producer (i.e. copyright claimant) listed in the notice become known. Thus, in theory, the more popular that a work becomes and the more popular that other works incorporating the work become, the more opportunities are provided for collecting transmission fees. If a large number of people are exposed to an open source work, this is likely to result in a small percentage of those people contacting the producer to pay for a transmission of the work. The resulting income streams may generate more revenue than would have been realized under a proprietary arrangement in which very little exposure is gained for the work.

Additional indirect revenue streams might be possible. Benefits to the free distribution of MP3 music include (1) widespread distribution of a message and (2) widespread name recognition for producers and artists. In some instances, this may be all the participants want. In other instances, these two benefits may increase greatly the ability of producers and artists to sell consumable products such as concert tickets and t-shirts. Similarly, the generation of revenue streams from the sale of consumable products may be possible through the notoriety that open source films could bring.

The major difference with the MP3 situation is that while low quality versions of film may be distributed or streamed across the web, full quality versions of films are unlikely to be transmitted over the web in the near future due to their very large size. This provides an additional and substantial value-adding opportunity.

Value-Adder Motivations:

My impression (although I have not read the books) is that Redhat and similar private firms make their money indirectly off of the open source movement by providing services such as installation, maintenance, and upgrade support for the Linux operating system and derivative software. The availability of these services has greatly increased the spread and use of open source software. What types of services might private firms supply that would support the spread of an open source film industry?

Assuming the number of open-source or public domain movies available in digital form grows over time, significant challenges exist in distributing such movies. While low image quality movies may be distributed through the Internet or viewed through web streaming, versions with high quality images consist of massive files and would require alternative delivery mechanisms. Further challenges include provision for (1) a universal meta-tagging service and abstracting service so that open source films and audio may be found, (2) reviewing services, online or otherwise, to allow individuals to identify films having the content quality and subject matter they desire, and (3) long-term archives for high quality digital versions of open-source films. All of these challenges provide opportunities for the private sector to generate income from and help expand an open-source film movement. (Note: By example, www.movieflix.com allows users to view low quality web-streaming versions of public domain movies for free and others for a monthly subscription fee but ships high quality film versions (i.e. non-digital) to home viewers for a fee. Sites such as www.retrofilm.com and www.panamvideo.com ship professional format broadcast-quality copies of public domain movies for a fee. Note that these services are for public domain as opposed to open source films.)

Perhaps Eben Moglen and others of you can suggest licensing language by which additional or alternative direct and indirect appropriation methods might be used to increase the revenue streams to producers and artists using the open source approach ... without resort to proprietary methods or technological lock ups.

B. The Contract Among Creators

The contract among the parties involved in producing the film would establish a fiduciary responsibility on the part of the producer (i.e. the independent film-maker) to distribute any income to the other involved parties through a prearranged formula. This contract might differ radically from film to film depending on the willingness or ability of various parties to contribute. However, the contract should be made publicly available for this particular film (actually included in the trailer or in a supplemental document on the DVD) and should set a tone of respect for all those engaged in the creative process. Thus, the contract should provide a formula that distributes income, if any occurs, to all parties involved in creating the film, ranging from those fronting the money for the project, the producer(s), the "talent" appearing on-screen, and down to the lowliest technician working on the project.

The language of both the "open source license" and the "contract among creators" should be developed as a communal effort by the legal scholars involved in the movie project.

What is the worst that can happen with this experiment?

Most educational documentaries and cultural films lose money. Often their purpose is to convey a message or archive a social situation rather than to generate a profit. Therefore, the foundation(s) funding the project, producer(s) and volunteers appearing in the film would be no worse off financially than if the film was funded and distributed through the conventional methods that independent documentary film-makers typically use. If the film is viewed over time by significant portions of the population with little or no downstream income generated, knowledge will have been acquired on how to distribute a message widely across informal networks while not expecting income to be generated in the process of doing so.

What if Disney Corporation or others decide to combat this film by extracting segments from it and satirize/mock the statements of folks appearing in the film through distribution of their own film? Disney can only do this legally under the terms of the license by releasing their film as an open source film. This would provide an opportunity for further creative critique through dueling films. Of course the mainstream movie industry might also copy and satirize the film in another film ignoring the terms of the license. Thus one might want to have deep enough pockets to pursue a breech should one occur. However, my guess is that open source movies would simply be avoided and ignored by the mainstream industry.

What is the best that can happen with this experiment?

If the film is both widely viewed and creates an income stream for the producer, a break through in creative publishing will have been achieved.

Just as open source software is unlikely to completely replace proprietary software in our near future, open source films and media are unlikely to replace proprietary media. However, open source media might create an environment of higher creativity, innovation, intellect and human enjoyment than is being achieved by the current proprietary methods of film production.

Until the general public's opinion is changed about Disney owning Mickey, all other battles to preserve the public domain will be far more difficult to win. It's an example that will always be thrown back in the faces of those advocating expansion of the public domain. For that reason alone, such a film is probably worth producing.

Many of you have been using the popular media of newspapers and books to inform the public about the effects of overly restrictive intellectual property laws on our daily lives. Perhaps the time is ripe to use the popular media of movies as well.

I enjoyed the conference immensely and look forward to your further comments.

Best, Harlan Onsrud

(somewhere in Italy)