Copyright Problems: A Dysfunctional System

Posted on by Justin Durand

We watched Sita Sings the Blues the other day. Haven’t seen it? Picture this. A cartoon that tells the story of the Hindu goddess Sita set to 1920s Blues music. Cool stuff. And it turns out to be a famous instance of copyright problems.

Everyone knows copyright can be a pain in the butt but is it also bad for the creator? Nina Paley thinks so.

Bad for the creator? I wouldn’t have guessed, although the evidence is right there for everyone to see. Genealogists bicker about copyright, seemingly endlessly, and it’s now routine for people to claim “Fair Use”, thinking that’s an all-purpose loophole for any use without permission.

My experience is that even attorneys who claim expertise in copyright are often woefully inept on the ground. They’re so used to making certain pro forma arguments they’ve never bothered to understand either the theory or the case law. Just rote rules. (To avoid being sued, I’m not going to name names.)

So, here’s what happened with Sita Sings the Blues.

Nina Paley created an animated film she wanted to place in the public domain. And it would have worked, except changes to copyright law brought the songs of jazz vocalist Annette Hanshaw back into copyright. As a result, Paley was thrown into a needless copyright storm. In the end, she had to buy the rights to use material that had been in the public domain when she created her film. (You might have to read that a few times to understand how dysfunctional the copyright system can be.)

"Nina Paley's first feature film, Sita Sings the Blues, was a huge critical success: it received 100% Fresh on Rotten Tomatoes —which is incredibly rare. She used music by the 1920's singer, Annette Hanshaw, which can no longer be heard through legal channels unless you happen to own her old 78's or watch Nina's film. This video tells the story of why Nina joined Question Copyright.org and encourages artists to ignore copyright law."

Paley makes two key points. First, copyright holders were using their power to suppress individual artists. Second, it did not benefit her to copyright her work. As a result, she now advocates what she calls “intellectual disobedience”. Ignore the law. Let disobedience become so common, enforcement collapses.

But on the opposite side, my generation remembers clearly and often painfully the death blow to the music industry from unrestricted copying. In the early days of the Internet, the technology to restrict distribution just wasn’t there. Many of us probably haven’t thought beyond that.

Paley acknowledges there are ongoing efforts to reform copyright law, for example, by limiting the copyright term, but she points out that as a creator her own time would be wasted if it were spent on legal reform rather than on creating her films. Good point. And she thinks efforts like Creative Commons that use an end run, miss the real point. I’m not sure I agree, but maybe.

I would like to see more public discussion about the value of copyright. Is it true that all creative work is derivative? (It seems so.) And, what practical social benefit do any of us gain from extending copyright terms as long as we do?

Nina Paley

Copyright

Attribution

I’ve written before about my own experience, having my work hijacked: Copyright Problems (Feb. 6, 2019). The problem hasn’t been infringement; it’s been attribution. We should be clear attribution is a separate issue. I want my work to be distributed. And I want to get credit for it.

Updated May 21, 2020 to add link.