Beyond Copyright

The question of copyright is now very much on people’s minds. I do not condone what has happened, but what’s happening in the AI space now seems like we are seeing not the beginning of the end of copyright but rather the final nail upon its coffin.

Copyright was initially intended to protect creators’ intellectual property work, not their media representation. Even from its inception, it was weak protection unless the author had become successful enough to sue. Eventually, it became a vehicle for corporate owners to buy up rights and hold them effectively in perpetuity. For artists, this was even weaker; at this point, what was being protected was essentially the brand. This holds for musicians as well.

In reality, the biggest beneficiaries of copyright have almost inevitably been publishers and studios, who were essentially looking at their investments into entertainers and creators and who usually reap the lion’s share of the profits from these creators’ works. Social media effectively disintermediated publishers from the equation. Still, instead of making it possible for people to make a living as creators, they instituted their own gates – pay us for exposure, or you won’t be seen.

Consequently, if copyright went away tomorrow, it would likely only benefit a small number of creators, but it would have a huge impact on large media companies.

Generative Media AI has effectively collapsed the traditional publishing model, though it has also hit hard against traditional media artists who are already struggling. However, it’s worth noting that these two, while seemingly overlapping, have different underlying causes.

Traditional artists – those who work with physical media such as canvas and paint or sculpture, are not really all that affected by AI. They are selling artefacts. What they are not selling as much of are images of those artefacts, which produced a good side income, but this market has been drying up with the Internet. In some cases, such reproductions serve to increase the artist’s fame, which drives up the prices for originals. This is harsh, but as with any producer, exposure makes a big difference.

Digital artists, both visual artists and photographers, on the other hand, have always been on borrowed time because they don’t have a physical artefact to sell, and their work was readily duplicatable even before AI came along and made it malleable. This is why it’s worth thinking about this from the perspective not of art but of characters and storytelling.

There’s a term of art used in the anime sphere that has somewhat been translated into Western culture – the OC, or original character. An OC is, as its name implies, a character that is unique to the creator, meaning that it is part of a story. Charles Addams developed a particular style fairly on in his work as a cartoonist, but it wasn’t really until he started using recurring characters that his reputation clicked. Eventually, many of these characters would become members of the Addams universe. Gomez, Morticia, Wednesday, Fester, and so forth would subsequently jump to the small screen in the 1960s and the big screen in the 1980s, even though they had started as one-off bit characters in a macabre and absurdist universe. They were OCs, and it was the collective works of those OCs that ultimately gave Addams his success, and it is this, not any particular book or cartoon or comic strip page by itself that made it copyrightable.

This is an important distinction in copyright law. It isn’t a particular style or representation that is copyrightable, but the narrative. If I write a fiction book (and I’ve written a few), what is copyrightable mostly are those characters I create and their interactions within one another, especially if they appear in various works, because this represents a narrative universe. If I draw a comic strip, the style of the comic strip may change, but if there is a clear narrative thread between each strip, then those characters are, in theory, the protected thing.

The common perception about copyright has shifted, partly because of media ownership. A media publisher wants the rights to those characters and stories because otherwise, they are beholden to the content originators. For instance, Walt Disney mined characters in the public domain for years because they had no entailment, except for characters that Walt Disney himself originated, and thus became the exclusive copyright holders for THEIR depictions of the characters, which often changed the storylines enough to get around legal challenges. However, it is now facing significant challenges as the rights for characters, such as Winnie the Pooh, etc., expire in the public domain. Disney has a lot of clout, and they also pushed to make representation, not original character inspiration, the basis for copyright ownership, which is one reason they are now so busy making real-life versions of animated cartoons – it allows them to claim that these are now original characters, and hence can be copyrighted for an additional 100 years.

Non-fiction works fall into much the same category – I would, for instance, seek copyright protection for The Cagle Report (and the Ontologist) as a single intellectual property rather than any one particular post or web. This brings copyright in line with trademark law.

A mechanism for registering Original Characters and Character Universes may make a huge difference in all of this. This system works much like a patent system and basically requires that you have a consistent set of characters that form a cohesive narrative through multiple works and that these characters do not duplicate existing characters in substantial detail. Thus, if I create a male superhero character wearing a grey/black armour bodysuit with a cowl with bird ears who fights crime, living in the crime-ridden streets and of Go-to-him, and living in a mansion with a butler named Albert, I’d probably be violating someone’s existing copyright (though wait a few years (ten to be precise, as Batman goes public domain in 2035).

What does blockchain or something similar do that existing law doesn’t? Quite a bit especially if copyright is made NON-TRANSFERABLE. You can license the OC Universe but not sell it outright. If you are a YouTube producer – you can copyright the universe of that show, even if it is non-fiction, because the show’s characters are yours, even if different actors play them (providing you can prove this). You cannot copyright a different representation of an existing character or world – this puts fanfics squarely outside of copyright protection, but this has been the case for a while.

AI doesn’t really change things all that much here. You can generate visualizations in AI. You can even create stories with those characters. What you cannot do is claim that your work is original and, hence, copyrightable. In other words, to be able to claim copyright, you need to make significant changes to the imagery/storytelling, and you need to register it. Such claims can be challenged in court, of course, which is why the other change would be to make any such copyright claim provisional for a set period (say one year), during which a claim can be challenged. At the end of that period, you are then awarded the copyright. I’d also require a non-refundable fee to be paid, both to cover review costs and to discourage frivolous claims.

Performers, lyricists and composers are in a different arena, but again, what is copyrightable would be albums or collections that represent a narrative thread. This also doesn’t apply to large-scale collective projects, which also need an overhaul

Finally, I think that copyright should expire with the creator’s death. It was intended to benefit the creator, not some long-term foundation or corporation. All too often, corporations use copyright to bludgeon competitors long after the creative originator has died, and in the process, it stifles creativity.

This isn’t a major shift away from existing copyright law as initially set out, but it is a significant departure from what it has been turned into. It’s not completely favourable to creators, but it goes a long way from the current system, where the copyright has become an ineffectual joke that only benefits those with the deepest pockets.

In Media Res,

Kurt Cagle

Editor, The Cagle Report

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