Is childhood play just one big copyright breach? Creation, cognition and your brain.

Incredible Hulk action figure

Grrr… Hulk Smash copyright?

It should be simple to understand. If you want to do anything with a character from a comic book (like write your own story, make a tee shirt, produce artwork etc.) you have to get a license and respect copyright. If you can’t get a license, don’t breach copyright.

But it’s not that simple is it? Why?

Because the journey of the fan isn’t simple. For example, after seeing the Avengers movie and playing with Hulk toys, my children run round the garden playing “Hulk smash”, stripped down to the waist and as big Hulk (aged 6) and mini Hulk (aged 3). Technically, if you think about it, that innocent play is also a kind of copyright breach. It’s unlicensed usage of character in a narrative and performance (which is what play is) for entertainment purposes.

Nobody minds those behaviours, learned as a natural part of our development, encouraged by toy manufacturers and marketing campaigns. The copyright owners want that to happen. But that innocent play is the start of behaviour that could, one day, make the adult Hulk fan stick a picture of Hulk on a tee shirt with their own slogan and sell them on the internet, then get busted by the copyright police.

It’s a cognitive development issue. A push-me-pull-you argument that doesn’t have clearly defined edges and is many more than fifty shades of grey… but finding a way through it is presented in black and white. Either you are a pirate or law abiding citizen. Or you’re a child with a vivid imagination that is encouraged to participate in the merchandise economy that is woven into copyright material. Maybe all three.

That mismatch between a complex, developmental process for children and a seemingly simple legal breach by an adult (with an overly simplified legal solution) creates cognitive dissonance, or in plain english… it doesn’t make sense. But maybe we can fix that… without ripping anyone off or punitive lawsuits by big corporations against fans. Read on…


You wouldn’t steal a car (even if you built it yourself)…

Last year I (and about twenty other people) were the recipients of a takedown notice for copyright infringement by Square Enix corporation, issued against a site where my fan artwork was published. Why? Well, the site was 3D printing site Shapeways, where people can create their own 3D models and produce them as real objects. It’s full of fan art (in my case, some Space Invader inspired cufflinks) and because anyone can visit the site and buy the things you’ve designed, this makes Shapeways, and sites like it, into targets for copyright enforcers.

The notice wasn’t clear, it was a long legal document which sounded very scary, but the upshot was Square Enix won’t tolerate people making unlicensed products and selling them on the cheap, that’s a breach of copyright akin to theft – even though none of the items subjected to the takedown notice were counterfeits of Square Enix products. In fact, one guy had made the cast of characters from a decade old Final Fantasy game precisely because he couldn’t buy them from anywhere… so he made them himself, for his own enjoyment (and other, like minded, frustrated fans, no doubt. Read it here.)

That’s not really theft. It’s combining creation with the act of theft. You create something, which when it is made, becomes the property of someone who didn’t even want it, but nevertheless won’t allow it to be created. Because the copyright material is indivisible from the whole, the whole thing is a breach. If the situation was reversed, technically you could veto their breach of your copyright – provided you could afford the lawyers to do it (which is unlikely).

Even if you offered to pay them for it, they might say no. You can’t just buy a copyright license, they’re not for sale like products in a shop. I wanted to make silver cufflinks of Space Invaders inspired shapes (not exact copies, but close enough to get a takedown notice) and when I researched it, I realised I had neither money nor the perceived qualification to get a license, even for UK only distribution, let alone world-wide rights. It was impossible for a geek to make Space Invader stuff as a hobby. A license like the one I needed was going to cost me something like €100,000!!!!

Licenses aren’t just purchased, they are granted. Large corporations like Square Enix won’t just grant them to anyone, which is probably because unless you’re planning to make a lot of money from the item, you couldn’t afford a license in the first place or qualify to get one.

Copyright, in this respect, is a mutually assured veto, a blunt instrument to protect ideas by smashing down any ideas that are more complex than a single owner, original concept.


Ideas aren’t like that though, are they?

The copyright issue is about the basic cognition of ideas. Our brains operate a system of induction, which enables deduction. That means, in simple terms, we see things, think about them, then use that data to do other things. It is where inspiration comes from. We copy, borrow, emulate and adapt the mechanics of the world around us to affect our own behaviour. That’s how we evolved.

To explain that, I heard a fascinating conversation by a couple of anthropology students a few years back, who were puzzling out the origin of the cup. One was arguing it must have been exposure to natural cup-like objects, like half a coconut shell, or plants with deep flowers, that inspired our ancient ancestors to contain water in another object to make it safer to drink than sticking your face near a river – because they probably saw other animals do that and get their heads bitten off by crocodiles. The other student felt is was a more abstract process of induction/deduction, that the original container idea must have been something our ancestors saw was dry and then could be filled with water, like a hole in the ground or a deep hoof print in dry mud. The concept of seeing a dry thing that then retained water was the important element, not the vessel itself.

I have no idea which one was right, but the basic notion that human creativity isn’t an inbuilt library of ideas that grows in our brains, but rather a skill comprised of observation and analysis, makes sense. Humans are a bit like computers, we don’t come bundled with content, we come bundled with apps and systems that process content. The content comes from the environment around us, in the same way the content on our computers comes from the words and pictures we put there from the web, or DVDs or whatever.

The upshot of this is very challenging for copyright lawyers. Their job is to protect ideas from people who are basically idea-stealing machines. That’s how we work.


Comic books, cover bands, impersonators… copyright’s recursive paradox

In a broader sense, copyright has become a recursive paradox, which is a jargon way of saying the copyright industry has engineered a system that basically creates copyright out of ripping off copyright. Don’t believe me? Consider these examples:

  1. Every Superhero (from the first Phantom in 1936 and later Superman in 1938) is a rip off. They might wear different costumes and have different powers, but the basic shape of the concept is the same. A human with super human abilities, who has adventures, enemies and so on. They draw on the mechanics of our literary past, myths and legends, which in turn were spiritual beliefs made into stories to entertain us. They don’t breach each other’s copyright though, because you can change enough elements to thwart the copyright issue. Batman and Spiderman are pretty close, but their fictional backstory and fictional nature mean lawyers can argue the toss. But to my mother, they were the same, men in costumes who did impossible things on the pages of comics I nagged her to buy me.

  3. Every cover of an original song is a rip off. Cat Steven’s 1968 song “The first cut is the deepest” was a smash hit for Rod Stewart in 1977. He got the rights to use it, so no problem there. However, the hundreds of buskers and pub bands that covered it (and still do today) are copyright breachers. Thieves, according to the Federation Against Copyright Theft (FACT). The same action producing a simple binary outcome, legal or theft. And how does the audience react? Everyone says “oh I love this song”.

  5. Every mix tape or video recording was a rip off. Back in the day, when I was a teenager, every music store sold blank tapes, which was a huge industry in its own right, as were the devices (tape decks) to copy music from vinyl records. This was, in fact, engineered into the economics of the music business, they tacitly encouraged people to make tapes of their own by distributing their records to shops that sold the means to pirate them. That was because it was very effective viral marketing. Copyright, in the pre-digital era, was engineered into the high quality publishing business model to encourage low quality piracy, not prevent it, but to drive awareness and encourage sales. People got a crappy mix tape, then often went on to buy an official album. Of course, in the digital age, this same mechanism became an industrial scale enterprise that robbed music copyright owners of their income, and then suddenly became theft.

  7. People love satirists, impersonators, cartoonists. In fact, those people claim copyright over their own impersonation of someone else’s copyright material – adjusted, obviously, to be legal and excused by virtue of their parody. Weird Al Yankowic, for example, whose hit “Eat it” clearly ripped off Michael Jackson’s “Beat it”. Thinly veiled characters and plots from the entertainment world are regularly satirised in cartoons like South Park. The list is endless. What we see in these examples is the value accrued in one copyright property being rolled over directly into another, which is a legalised act of creation and theft, that seems to get around copyright entirely – or again, is a negotiated outcome that pays the copyright owner. Which means copyright also allows itself to be breached, in terms of a commercial agreement. Which is basically selling copyright breaching licenses, which is no bad thing, copyright breaches of this nature are beneficial for the original product. Like samples of old songs in new ones. But they’re beneficial regardless of whether they’re official or rip offs, which is odd.

  9. iPhone, Samsung Galaxy, patent trolls… the world is full of lawsuits where people battle over seemingly minute details relating to copyright and intellectual ownership all the time. That’s not because everyone involved is a criminal, or a victim of theft, it’s because the real world legal system recognises that ideas come from a multiplicity of sources, not just the specific owner of a specific idea that is executed in a specific way. The law recognises that some ideas are so general (like the automobile, or the computer, for example) that they can’t be patented or copyrighted. Of course, that’s normally an historical judgement, Apple allegedly ripped off Xerox, Microsoft allegedly ripped off IBM, every jean manufacturer allegedly ripped off Levi Strauss and Jacob Davies… and so on.

The world of copyright is partly simple, partly complex, partly ethical and partly nonsensical. One thing spawns another, and another, and another – a recursive process that is also fraught with dilemmas. That’s because our brains steal ideas all the time, it’s how we see, hear and learn. What is key to remember is we haven’t solved it yet. It’s still evolving.


Piracy as consumer civil disobedience?

Of course, there are also totally unrelated issues to consider as well. For example, 2012 saw the global music industry go back into profit after a decade of losing money to piracy. Piracy, by the same token, has dropped now to represent half the lost revenue it once did. Why?

The answer is simple. Because Piracy peaked before all the copyright owners started distributing digitally. When music came mostly on CDs, films on DVD and books and comics as printed products, but the fans all had MP3 players and laptops connected to the internet, the difference between the distribution of copyright material and our digital consumption habits created a black market in digital versions of real world products. When more content became available and distributed online, piracy dropped. It’s not a coincidence.

The copyright owners sued people for piracy. It was (and still is) deemed to be theft. But it’s not really theft, is it? Theft normally deprives someone of something tangible, like your car, or money in your pocket. If someone creates a copy of your car, and drives it away, you’ve still got yours- in fact, that’s not really very different from all the other cars like yours that other people bought. That’s digital piracy. Copyright owners claim it is lost revenue, but is it? Have you ever brought an album with one great song but the others are all a bit shit? You had to buy the whole thing, but actually only wanted a small part of it – which you would have paid a lot less for if it was available singly. But maybe it wasn’t. Or maybe, the marketing buzz surrounding the artist made you assume the rest of the album would be equally good as the hit single.

It’s complex, but, simply put, piracy was a response to a lack of purchasing options. It was akin to civil disobedience. People wanted things differently, they wanted songs that weren’t available any more, items that were out of print, films they couldn’t get in their country because it was no longer distributed… as well as free stuff because it was there for the taking. When the distributors got their digital acts together, when the system changed, the pirates went back to being law abiding citizens again. That is like a protester who blocks a road being built, or fights for equal votes for women, or gets arrested outside an embassy protesting about human rights. We don’t call the Suffragettes criminals, or Gandhi, or Malcolm X… they were precisely that at the time but now we see their crimes as civil disobedience.

And so, in the majority of cases, it seems, was piracy. Consumer civil disobedience.

Piracy was a whole gamut of issues from dissatisfaction with the official distribution mechanism at one end, to a form of theft at the other which only became actual theft if someone who was going to pay for the item downloaded it. For many, if they had to pay for the stuff they pirated, they wouldn’t have bought it, so it’s not quite the simple theft or loss of revenue we’re led to believe it is. The piracy itself was an act that stimulated consumption, without the ability to pirate, there would have been no consumption. So the copyright owner is no worse off… in fact, maybe better off as piracy also stimulates live performance ticket sales, viral marketing and in some cases, actual purchases.

For example, I was talking to a buddy recently who said he had 16GB of songs he’d never even listened to, and wouldn’t buy anyway, just got them on a whim because they were free to download from pirate bay. Is that theft? It’s the equivalent of picking up money in the street but never spending it. Isn’t it more like the ethically grey legality of “finders keepers”, it’s not the same as robbing a bank.


The marketing myth vs. nepotism

There is another dimension to the copyright conundrum. It’s a monopoly designed to protect revenues for a small, select community. We’re led to believe that, if a creative work is good, it will be successful. And, by inference, the shows that make it onto TV, the films that get made, the books we see in stores and the music that gets a record deal, is the cream of the crop. That it is deserving of copyright protection.

However, as anyone who has made a demo album, or self-published a book, or punted a script, or designed their own product will tell you, the difference between a successful idea and an unsuccessful one is more complex than that. You can’t compete, as the little guy, against the big boys. The world is full of unknown, undiscovered smash hits we’ll never hear about. It is also full of crap that gets millions of marketing dollars thrown at it. We see it all the time, consider:

  • One hit wonders.The world goes Justin Bieber crazy for a year, then he’s suddenly finding it hard to make the charts. This happens a lot. People move on, the label promotes someone else. Flash in the pan?

  • TV series cancelled. We’ve all experienced the moment when either a) a show that’s been heavily promoted is rubbish and we give up or b) a show we love is cancelled for some reason. How can that be? You can’t create fans for dross, you can ignore fans who dress-up like the stars of their shows and name their kids after them. That’s a conundrum, but it happens all the time.

  • Fifty shades of can’t get a book deal. In recent times, we’ve seen Kindle emerge with smash hit best sellers that couldn’t get a publisher, yet we also see publishers losing money hand over fist on books that don’t sell. On average, in fact, every printed book ever made in the last century averaged 5 copies sold, which means (as we know some sold millions) most of them didn’t sell any.

  • “The internet viral sensation”. How many times do the marketing guys tell us that the thing we’re now into started out on the internet? Free? From Youtube hits ( Will it Blend, Bo Burnham etc.) to unsigned artists that dominate iTunes (like Gnarls Barkley) we see them, suddenly on TV and in the record store… but they weren’t they all rejects? Or didn’t even bother trying to go down the traditional route?

The truth is, take away the marketing spend of the big publishers, and the world of entertainment looks very different from the world I grew up in the 1970s. Getting copyright protection is, in many cases, neither a guarantee of quality for the consumer or a meritocracy, it’s simply a mechanism for the people in control of distribution channels to enforce their control of distribution. Which is fine, no reason not to, but for the content creators is a somewhat arbitrary block on the commercial applications of their work and the marketplace for creative ideas. And the world of products that tell a sad story… think of the Tucker Torpedo.

The blank cassette tape

Hey, check these guys out…


Open source publishing… a new idea.

Check out Project Gooseberry: it’s an open source movie. That’s right. You can fund it, and when you do, you can own the components to make it. Characters, script, artwork, the lot. The people making it own the film, but the crowd own the parts.

This got me thinking, as someone who has created a business that makes intelligent news feeds out of Twitter – Tweetminster (the tweets are all someone else’s copyright, we just own the intelligence tech) and a writer, I’ve decided to try something else.

So my next book will be open source. I’ll own the book, the rights to sell the book, but if you buy it and want to turn it into a comic, or a tee shirt, or anything else, it’s yours. Go for it. I’m working with a buddy on the idea, and ex-Google colleague who thinks, like me, the world of copyright doesn’t fit the real world anymore.

We’re going to define a new kind of licence, that gives credit to the original idea, and respects your work, but gives people license to create their own works of induction / deduction and get the credit for what they’ve created (and can make money off their creation too). It’s not a creative commons license, it’s inspired by that kind of thinking, but it’s a kind of licensing that doesn’t ask you to give anything away and more importantly, licenses your work within the context of a paid-for product, which makes it easier to track usage. It is also designed to encourage creative collaborations – a license that encourages people to develop your product into something they own.

I’ll say no more for now… it’s coming soon 😉

If you like the sound of it or would like to be a part of the pilot project (a superhero story), sign-up to my email newsletter and I’ll share the whole thing with you. It’s like playing superheroes when you were a kid, just with grown-up stuff.

It’s a business minded response to the basic workings of your brain. Nothing is ever really original, nothing is ever really yours. We share everything, copy everything, remix and recreate ideas all the time. It’s how our brains work.

It’s time our jobs worked more like that too.