How (and Why) to Use Free Culture Lyrics In Your Book

"I've got the 'white boy tryin' to use song lyrics in my novel blues.'" Image by zooverano, CC0
“I’ve got the ‘white boy tryin’ to use song lyrics in my novel’ blues.”
Image by zooverano, CC0
A year and a half ago, I did a post titled “A different way to legally quote lyrics in your books“, providing a legal, workable alternative to bringing in song lyrics to your novel without putting yourself at the mercy of the litigation-happy recording industry.

It has come to be the post I refer to most often on social media, somewhat to my surprise, and the more I link it, the less happy I am with how non-comprehensive it is.

So today I return to the well, and aim to do a better job of explaining what the Creative Commons is, what Free Culture licenses are, and how to go about finding songs whose lyrics you can use in your books with minimal fuss and no legal vulnerability on your part.

But before we go exploring the Commons and Free Culture, let’s deal with what all new writers are actually trying to do.

Do Not Use Mainstream, Major Label Songs In Your Writing

you may cast me off
but i remain
you may tell your tale
but i’m the same

— Bert Jarred, “Spectacular“, CC BY 3.0

You’ve been working on your novel for a long time, and it’s the greatest book ever written, and the only thing that could make it more perfect is if you could just use this one perfect song lyric as an epigraph.

Don’t.

I don’t care how perfectly “Stairway to Heaven” or “Under The Milky Way” are suited to your story. If you quote them, there will be legal consequences.

You can — probably — get away with referring to the name of the song, and the band name, in the story. But I wouldn’t even go that far, personally.

There is a theoretical limitation to copyright known as “fair use” in the United States. In theory, people have the right to use a portion of a copyrighted work in a larger, original creation.

In reality, the Recording Industry Association of America (RIAA) (or your local equivalent if you’re outside of the US) is going to bring suit against any use for which they did not get paid and to which they did not give permission.

It doesn’t matter how cool the band or artist is with fans making use of their works (and some are, but they don’t get the final say). The major labels and the RIAA sue, basically, everybody. Unless you’re Stephen King or Dan Brown, you don’t have the resources for the knock-down, drag-out legal fight that would ensue. As far as they are concerned, there is no fair use until it has been litigated, and the purpose of that is to create a very expensive barrier to entry for any use.

Don’t believe me? In 2007, Stephanie Lenz posted to Youtube a 29 second video of her toddler dancing. Her child was dancing to Prince’s 1980s classic “Let’s Go Crazy”, which can be heard (poorly) in the background of the video. Universal Music Publishing Group had Youtube pull the video due to a claimed copyright violation. (“‘Universal’s takedown notice doesn’t even pass the laugh test,’ said EFF Staff Attorney Corynne McSherry.“) The lawsuits and countersuits started that same year.

It is now 2015, eight years later, and the suits still have not been decided.

That’s over a 29 second dancing baby video, from which the song in question could not possibly be pirated, or detract from the copyright in any way.

Do you really think using lyrics in your novel will get you less of a legal quagmire than a dancing baby video?

So, you can (again, probably) use a song title and connect it with the band or artist’s name in your story, but do not go further than that, or you’re all but certainly going to regret it.

What is the Creative Commons?

did you think that you could save me from myself?
i’d rather stare at these four walls i know so well
i know their stories, i know their hells
i’ve been there too and i think they need my help

— madalyniris, “Leave And Never Look Back“, CC BY 3.0

The Creative Commons is a non-profit organization founded in 2001 by Lawrence Lessig and others, with the goal of promoting general licenses so that artists and creators can choose to waive certain rights otherwise protected by copyright.

A work released under the Creative Commons does not include the phrase “all rights reserved”, but instead says “some rights reserved”, with the particular license making clear which rights those are.

The goal of these licenses is to encourage people to share creations that they like with others. Some licenses restrict you only to that, while others grant more and wider permissions. And culture consumers can do so without fear of being punished for, say, making a mixtape-playlist and giving it to a friend.

What are Free Cultural Works?

A thousand footsteps outside my door
Well they don’t seem to matter anymore
I’ve seen the signs along the wall
Mine is the greatest sign of them all

— Glenn Wilson, “Try“, CC BY-SA 3.0

You can read more about them at the Creative Commons site, but here’s a quick thumbnail.

There are four necessary characteristics for a work to be part of Free Culture:

  1. Freedom to use the work itself.
  2. Freedom to use the information in the work for any purpose.
  3. Freedom to share copies of the work for any purpose.
  4. Freedom to make and share remixes and other derivatives for any purpose.

The important point here is that any Free Culture license allows commercial use of a work, and derivative works.

If you write a book and it has somebody else’s lyrics in it, you have created a derivative work. If you then sell that book, you are making a commercial use of that derivative work.

With a Free Culture license, you already have permission to do both of these things, without penalty or even notifying the creator, so long as you abide the terms of the license.

The Creative Commons licensing structure has two licenses that fall under Free Culture.

The Creative Commons Attribution (CC BY) license is just that — you can do pretty much anything you want with the licensed work, so long as you give proper attribution (generally with a link to the original source), indicate whether changes have been made, and make clear that your use is not condoned or supported by the original creator.

The Creative Commons Attribution–Share-Alike (CC BY-SA) license requires the same things as the Attribution license, as well as requiring you to release your derivative work under an identical or compatible license.

Note that this does not mean you need to give your work away for free. It does mean, however, that you need to stop worrying about “piracy”, because you are giving permission to copy and share by using the license.

(And, really: relax. It’s not piracy, it’s free advertising. How many of your favorite authors did you discover by buying a book blindly? If someone reads your book, loves it, and makes a copy to encourage his friend to read it, that friend might become your new biggest fan. If he does, you’ll get plenty of purchases from him in the future, so why would you think about punishing him for that first read?)

At the moment, apart from earlier iterations of the same license, there is one non-Creative Commons license that is compatible with CC BY-SA — the Free Art License (FAL), also known as the License Art Libre (LAL).

If you read that license closely, you will find that it is, in every essential, the same as CC BY-SA. So if you find a song under an FAL license, you can put your book out with a CC BY-SA, and you’re covered.

(There is also the Creative Commons license to dedicate works to the public domain, the CC0 license, but to date, very few songs have been released under it.)

Yeah, yeah, yeah, but how do I find a Free Culture song to quote?

It’s cause I like to fight about it so I,
Bite down taste blood then spit it out.
I learn quick, I make connections,
I don’t dream just pay attention.

— Lily Wolf, “Play The Game“, CC BY-SA 3.0

There are places to look, and ways to search, that can help you zero in on something appropriate. But you’ll be ahead of the game if you commit to listening to a lot of CC-licensed music to begin with.

It’s not difficult, and for the most part costs you only time and hard drive space. The only thing is you have to be willing to wade into unexplored waters and judge for yourself what’s good and what’s not. For some people that might be difficult, or at least it might take you a while to get your bearings.

But it’s worth it. Making CC-licensed music a regular part of your listening means when you think “man, this tune would be perfect for this video I shot”, there’s a good chance you’ll be able to use that tune with a clear conscience and no worries about RIAA lawsuits or DMCA takedown notices.

If you’re looking for a lyric Right Now, the first thing you want to do is go on a general CC search. Creative Commons has a CC Search tool (which is apparently being replaced, but hasn’t been yet).

jamendo_logoTo start listening to CC music generally, the place to start is Jamendo. It is, I believe, the oldest CC-music site, and has thousands and thousands of works, all under one CC license or another. Jamendo has some drawbacks. Older works disappear with disturbing frequency, and even finding a pointer to where they once were is difficult. So, for instance, I have a number of albums I downloaded from Jamendo and, due to moves from one computer to another, and other exigencies, the licensing info got lost, and I can no longer look up what license they had because they’re not even listed on Jamendo anymore. Jamendo also used to have a thriving community and lots of artist-fan interaction, which is now gone. And those “improvements” suggest that the owners of the site are perfectly willing to cripple it further without notice or regard for what you or I think. That said, it really is the best place to dive in to CC music.

WFMU-free-music-archive-logoAnother long-time CC music archive is the Free Music Archive, which hosts lots of CC-licensed music (lots of overlap with Jamendo), along with other music that’s free to download but not so clearly licensed (and some public domain music as well).

bandcamp_130x27_whiteBandCamp is a wonderful music outlet, and many artists on it use CC licenses, but there are two drawbacks — you cannot search by license, and when you download, at least the last time I did, licensing data is not included, not even in the music files’ metadata.

ia_purpleThe Internet Archive also houses a lot of CC audio, but it’s difficult to search by license, to find the sort of CC music you’re looking for, and to be sure that it’s legitimately under that license. I recommend going here only after you’ve got a lot of experience with searching out bands and songs, and having a good feel for what’s likely legitimate, and what’s probably somebody stealing music and passing it off as his own. (It’s pathetic, but yes, people actually do this.)

93px-SoundCloud_logo.svgThere are a number of Creative Commons artists on SoundCloud, but I’ve found searching there to be substandard, even while the formats available tend to be superior.

magnatune3-logo-smallMagnaTune is a pay service, so you know that artists are getting some financial support, and often they use CC licenses.

cc-mixter-logo-blackCCMixter is a service I’ve almost never used, but it definitely makes music available under CC licenses, so it’s worth checking out.

Too Long; Didn’t Read

No one likes the freak, no one likes the odd man out.
I’d rather live my life alone,
Than live a life of doubt.
I won’t let you force yourself on me,
I refuse to be a victim to your society.

— Sunspot, “Intellectual Terrorists” (CC BY-SA 3.0)

If you’re a writer, especially an indie writer, you don’t want to quote lyrics from mainstream songs in your book, or you invite lengthy litigation courtesy of the recording industry and their flesh-eating lawyers.

If you absolutely must include lyrics in your book, and wish to avoid legal bills, you can either invent them, or use lyrics from songs with Free Culture licenses (and abide by the terms of those licenses).

Unless you are under a severe time crunch, the very best way to find that one perfect lyric is to start exploring Free Culture music yourself, at any or all of the sites linked above.


As an addendum, I can add another way to explore Free Culture music. Last year, I did a first installment of a podcast meant to expose people to cool CC-licensed music.

The Creative Uncommons‘s first episode only got a few dozen listens and virtually no reaction, however; so, for that and other reasons, I let the project languish.

I have playlists for two more hour-long installments ready to go, and can easily put together many more, almost without thinking about it. And each of the playlists to date is entirely Free Culture.

If enough potential listeners are interested, I’m willing to take it up again, but, given my extremely limited financial means, I do need to make it pay. If you’re willing to support such a podcast, and/or know others who would be, leave a note in the comments or hit the contact form to send me a private email. If enough people seem interested, I’ll sit down, figure out what I’ll need to get back up and running, and put together a crowdfunding campaign. (Given my personal quirks, I may be foolish enough to do it with Bitcoin through the Lighthouse de-centralized crowdfunding platform, but we’ll see.)

More copyright abuse

Here’s another instance of using copyright to hurt a creator.

In 1971, Ken Russell made a film some (including Mark Kermode, above) consider his masterpiece: The Devils, starring Oliver Reed. It is, to put it mildly, controversial, being the story about a corrupt priest who finds his faith amidst a bout of societal religious hysteria.

Russell, the creator, had his work cut by the rights owner, Warner Brothers Inc. But in the late 1990s, with the help of Kermode, Russell created a restored print, bringing the film back to his original vision.

That director’s cut has been screened a handful of times, but never released wider than that, never on video tape, never on DVD, never on BluRay, never on any digital streaming service.

Why?

The film already exists. (It was lost, but restored, and now it exists.)

As Kermode makes clear, there is a market for it.

If the problem with corporations was that they were “greedy”, why on Earth is Warner Brothers not releasing this and making some extra cash?

One suspects there is more to the story than “it’s controversial”. This smells of personal animus, of somebody in corporate punishing Russell (and now his ghost), settling a personal score simply because he can.

If you observe how copyright is actually used, it turns out not to be employed to protect creators’ rights, but to give non-creators arbitrary power over the creations they did not make, and more often than not to punish the actual creators.

Yet another instance where IP Warriors will shrug, sniff, and say “he knew the how the system worked when he made the movie, so it’s his fault”.

Yet again, when you are in a position of defending sociopathic manipulators who have successfully gamed a system, maybe you’re on the wrong side of things.

Hazards of extended copyright

Big Bosoms and Square Jaws coverReading Jimmy McDonough’s biography of Russ Meyer, Big Bosoms and Square Jaws, I was surprised to find that the last chunk of it was the most compelling part. For me, at least.

Unless you’re a film geek or have a passing interest in American exploitation cinema, you probably don’t know Russ Meyer.

Meyer was a filmmaker and entrepreneur. In the course of his twenty-plus year filmmaking career, he invented two new genres (the “nudie cutie” and the “roughie”) before becoming a genre unto himself. He stormed the gates of the major studios — at their invitation — then, chafing at the lack of control he was permitted, went back to self-producing and financing his own films, making himself even more rich in the process.

Since he self-produced most of his films, Meyer also held the rights to them, and he was canny in holding and renewing those rights, even to the ones that failed at the box office (like the now-immortal Faster, Pussycat! Kill! Kill!).

When home video took off in the late 1970s and early ’80s, Meyer reaped the benefits, self-distributing his now-classic and in-demand works via mail order, keeping revenue flowing in.

While Meyer was, personally, far from being a saint — very far — he was not the inveterate bastard that the phrase “exploitation filmmaker” brings to mind. He was, in his own idiosyncratic way, a gentleman, a man of integrity and honor. If you had worked for him, and later found yourself fallen on hard times, you could not only count on him for help, he would even give help unasked if he found out you needed it. (This did not apply to those he felt had betrayed him, obviously. And his ideas on what counted as betrayal were part of his idiosyncrasy.)

That’s how Meyer was.

That is not how his estate is.

Russ Meyer’s final years were marred by the deterioration of Alzheimer’s disease. (Which was unfortunate, as losing his mind was one of his greatest fears — his sister had been in an institution all of her adult life [often calling him to complain of dark conspiracies against her].) He had no family or obvious heirs when he passed, and intellectual property worth millions.

Enter Janice Cowart, an accountant who was never part of Meyer’s circle of friends or acquaintances until she got hired to keep books for him in 1988.

“One of the reasons she got into this better and deeper and thicker than anybody is the new computer age,” said longtime RM secretary Paula Parker. “She has a brother who is a computer programmer.” Whereas everything had previously been done by hand, the Internet age left Meyer out in the cold—and completely dependent on his new hire. Web sites? E-mail? Janice could take care of all that. Everybody liked Cowart in the beginning, even Kitten Natividad. “When she first started, she was nice to everyone—‘Oh, is this Kitten? Hold on, I’ll get him for you. It’s Kitten, Russ!’ Then later on it was, ‘Well, I don’t know—he’s really busy right now.’ You could see her changing. She took over.”

This pattern plays out again and again and again in the history of intellectual property. A creator gets to a point of resting, and trusting those around him, and some transition or change leaves him vulnerable, open to trusting someone new, who can help with that transition. And that new person, more often than not, is a sociopath or someone tending in that direction, who uses the position of trust to gain more and more power, and ends up the sole owner of the IP after the creator passes on. Sometimes it’s not that blatant. Sometimes a board of trustees is created to manage the estate’s IP. The same thing happens, sooner or later — someone gains control, through charisma, politicking, and carefully planned betrayals, and that person is completely indifferent toward the creations, caring only for the control, the power, and usually the profits they generate.

And how well do they shepherd the IP they own and are meant to protect? Terribly, more often than not.

Cowart, at the time of the biography, controlled everything Meyer made (barring the two studio films), and did exactly nothing in terms of preservation, restoration, or bringing Meyer’s demented genius to new generations. She had a few cronies, threw work and money their way (doing dreadful “art” for DVD covers, e.g.), and badmouthed (with faux regret, to maintain appearances) anyone who dared question her handling of the estate she grabbed control of through the simple means of knowing computers, and jumping in when Meyer’s mind began to succumb to dementia.

When confronted by this repeated reality, IP warriors inevitably sniff (sometimes audibly) and proceed to blame the victim. That’s too bad in this particular case, they aver, but the creator should have done something about it. Estate planning, trust planning, incorporating, whatever their preferred method, they blame creators and hold sociopaths guilt-free. And they get righteous and high and mighty about it, too.

I’m sorry, but if you blame victims and defend sociopathic behavior, you are the problem.

This kind of case is why I think intellectual property rights should (outside of work-for-hire situations) be non-assignable. The right lives (and dies) with the creator, and while it can be licensed, it cannot be transferred.

In fact, if we went back to the original Constitutional terms, copyright would last for 28 years, regardless. If that were the case, then you might argue that some sort of trust, temporary, should be allowed to hold rights if a creator died before the term was up.

Except that then there will be non-creators with cashflow from things they did not create who will argue, using that cashflow going to politicians, that copyright should be extended again (and again and again and again), and that’s how we got to the neverending copyright mess we have today.


I should note that, in terms of film as an art form, Russ Meyer is an outlier. For most films, there is rarely one singular creator. Even under auteur theory (which I hold only applies to a very few directors), film is (say it with me) a collaborative medium.

However, Russ Meyer is not only an auteur, he is pretty inarguably the author of his films. The actors, generally, are props to his vision, more so than with any other director. He not only directed, he wrote, directed, photographed, and edited nearly all of his films.

In the case of most other films, you can make the case that there were many creators, all of whom should have some IP in the result. In Meyer’s case, it is easy to say that the films are entirely his, and difficult to argue the contrary.

A different way to legally quote lyrics in your books

ADMIN NOTE: I’ve written a more comprehensive post on the same subject: “How (and Why) to Use Free Culture Lyrics In Your Book“.

BookBaby’s blog today throws a damper on your wish to quote lyrics in your novel (after noting the 1923 cutoff for the public domain):

The writers and publishers of the lyrics you want to quote are entitled by law to:

  • deny you the right to quote the lyrics.
  • grant you permission and set the terms for usage.
  • ask you to pay them any fee they want for those usages.
  • ignore all your requests until you throw your hands up in the air and decide to just invent some song lyrics of your own to fit the scene.

All of this is true, but it’s not the whole story.

For one thing, there is the Fair Use provision of copyright law, but given the media industry’s habit of suing everybody who uses even a word or a note of something they own, and since they have more money than you or I, I’m not going to suggest you take that kind of chance.

You absolutely can, however, quote lyrics without the headaches detailed on the Bookbaby post, or the Galleycat post to which it links — if the song is available under a Free Culture license.

This is a bit more narrowly defined than just a Creative Commons license. Many, many musical works are put out under CC licenses that restrict derivative works to being “non-commercial” (you can’t make money from the derived work), and there is a whole class of licenses that deny you the right to make derivative works (which quoting a song in your book would count as).

But that still leaves you two licenses, and plenty of songs to choose from. The Attribution (CC BY) and the Attribution-Share Alike (CC BY-SA) licenses are here to save you!

Since, in my Writing Music Monday posts I tend strongly toward instrumental music, or else music with vocals not in English, perhaps my loyal three readers are not aware of the wide variety of lyrical content available under the Creative Commons. So, here are a few pieces of awesomeness to get you started.

Sungod Abscondo, Inside Open Wide (CC BY 3.0)

I made a silly video of the first track using public domain monster movie footage:

Josh Woodward, Airplane Mode (CC BY 3.0)

All of Josh Woodward’s work is under an Attribution-only license. And there is no small amount of it.

Conway Hambone, Live at the Social (CC BY-SA 3.0)

The Monster Brothers, Colossal (CC BY-SA 3.0)

Inmyths, Inmyths (CC BY 3.0)

The Dada Weathermen, Birthnight (CC BY-SA 3.0)

Juanitos, Best Of, Vol. 1 (CC BY 3.0)

Abscondo, Midnight Snow (CC BY 3.0)

UNKNW, UNKNW EP (CC BY 3.0) — Though if you can get more than a few words out of the grunge and fuzz sound, you’re better than I at discerning sounds. 🙂

Brad Sucks, Out of It (CC BY-SA 3.0)

And this one’s a bit less clear, but the group is too damn good not to mention: Pur:Pur makes excellent music, usually with clever lyrics, almost always in English despite being (I think) Ukrainian. They give away their music for free, and encourage people to, for example, Make Youtube videos with it, but it’s not under a formal Creative Commons license. Still, given their attitude, it seems completely doubtful that they’d complain about free advertising in the form of being quoted positively in your book. Their albums are all downloadable in multiple formats on Kroogi, and this is a video of possibly their catchiest song:

And if not a one of those float your boat or fit your project, here’s the CC Search Engine so you can find something that, hopefully, does work for you.

The Screenwriters’ Plight

Imagine for a moment that you want to be a screenwriter. Screenwriting is just about the cushiest gig you can get as a writer, short of being a renowned best-selling author like Dan Brown.

By any writing standards, you get very well paid. A single television script can net you $40,000 (the current Writer’s Guild minimum for a 60 minute story and teleplay is $35,568), and if you’re on the writing staff of a show, you’re on salary and can expect to have a minimum of two scripts produced in a given season, plus rewrite work on other scripts, which also does not pay poorly.

If you sell a film script, your situation is less stable, but potentially even more lucrative. Six figures for a script is very common (in fact, if the movie’s budget is over $5 million — and that’s practically every studio film — then your minimum compensation will be $124,190), and if you build a reputation for dependability, you can pick up a lot of money doing last-minute or even on-set rewrites, because even if the script is “perfect” (nobody ever, ever believes a script is perfect), production is not, and locations change, circumstances change, and rewrites and additions are almost always required.

But there’s more than just money. How many people have read Gone With The Wind? I can’t find solid sources, but many say that it has sold more than 30 million copies in all. Even with an average of two people reading per copy, more people are likely to have seen an episode of Friends or Seinfeld than to have read one of the most-read books of the twentieth century.

So there’s the money. And exposure for your work. And if you’re lucky, and the WGA rules and arbitration break your way, you even get your name in the credits (probably).

What you do not have, at any point, is any right or ownership in what you have created (with some extremely limited exceptions).

Hollywood is built upon a very twisted interpretation of an oft-abused legal theory.

Pretend you’ve spent several years honing your craft as a screenwriter. Then you take these skills and you write the greatest movie script of all time. The story is universal. The characters are both original and widely relatable. The pacing is perfect. The dialogue all but sings off the page. There is slam-bang action, spectacle, and small human moments that will bring even a grizzled Marine drill instructor to tears. It can even be shot on a modest budget and a short schedule without any artistic compromise.

It’s perfect. And it’s original. And it’s yours.

Until you sell it.

In the act of selling your original work to a producer — any producer, even the most honest, ethical, upstanding producer in the town’s history — you agree, in writing, in a legally binding way, that you did not create your original script. In order to sell it and have any chance of seeing it made into a film, you are required to lie, and “agree” that you did not create it yourself. You “agree” that you wrote it as work-for-hire.

That is to say, you are engaging with the producer in a legal fiction (I would say “fraud”, but this has long legal precedent, unfortunately) that the story was the producer’s original idea, and that you were merely hired to write it out for him. More or less a hired typist.

In theory, you, the creator of the original work, hold all the intellectual property rights to it. But in Hollywood the only thing you can do, if you want to live by your creativity, is to surrender those rights so completely that, legally, you did not create the work. You will (probably, although not definitely) get credit for the script, or at least the story, depending on how extensive rewrites are, and how WGA arbitration goes.

In another legal fiction, you are also entitled to royalties, a percentage, on any profits the resulting film makes. It’s a fiction because no Hollywood movie ever makes a profit, once Hollywood’s esoteric accounting practices and the legalese in your writer’s contract both come into play.

(That’s not a joke. The late Jeffrey Boam got screenplay credit on Lethal Weapon 2. It was the number three movie of 1989, making $227,853,986 world wide just in its theatrical release (i.e., not counting home video releases and sales to TV and cable). It made nearly ten times its production budget of $25 million. And yet in an interview, Boam laughed that, according to Warner Brothers, the movie had never made a profit, so he never got any residuals from it.)

You do retain two rights and a few options under something called “separation of rights“, a “de-bundling” of copyright in the script. You retain the right to publish it. And you retain the right to “dramatic stage rights”, to put on a play based on the script, after a specified period of time. That, and getting some money and a “creator” credit on any sequels, and that’s about it.

There are many, many rationalizations for this state of things. The most common is that producers, or studios, take a huge financial risk in making the film, and thus they need to legally lie so that they hold all possible rights to the work you created.

Never mind that stage plays are large financial risks, yet somehow playwrights retain ownership of the intellectual property they created. Never mind that books are also financial risks, and yet novelists (nominally — I’ll deal with the actually another time) retain ownership of their intellectual property.

Never mind all of that, bud. You wrote a screenplay, you got paid, so you have no right to your own work.

That’s how it is.

And if you are a defender of intellectual property law as it currently stands, then you own this grotesque distortion of what copyright is supposed to protect.

Just don’t tell me that you’re defending creators’ rights, because you’re not.

IP, copyright, and the real issue

We’re coming up on another copyright war in the next three or four years, and it’s time I start posting on the subject.

Copyright as it presently exists is broken. It is used as a tool of coercion, a weapon,a nd I will be posting regular examples of how it is abused — most egregiously, how it is used to abuse creators.

But it’s not just copyright, but the broader category of Intellectual Property. IP is in no better shape than copyright.

I travel in or follow three intellectual circles that concern themselves with this issue — Objectivists, Austrians, and indie writers (with a few traditionally published ringers in the mix).

Objectivists are generally pro-IP, in the sense of being pro-status quo or wanting the status quo to be the weak starting point for strengthening IP laws even further. I’ve known at least two who hold that IP should be eternal, the public domain eliminated. One even smugly accused me of “theft” for downloading public domain movies. (Yes, really.) This stupidity is in direct contracition with Ayn Rand’s actual position on IP, which is very good — I only take issue with some of the specific applications she suggested; the principles from which she argued were, in my opinion, pretty much spot on.

The Austrians (really Rothbardians, but let us not get into that just now) at the Ludwig von Mises Institute currently hold that IP is a “myth”. It is easy — too easy — to hear this conclusion and dismiss it and everything that lead to it as pure silliness, unworthy of any consideration. (It also does not help that one of the primary advocates of their position is a sneering, prancing jackass, at least in his online interactions.) Without going into detail at this time, I will say that the problems that this position means to address are very real, quite bad, and should be considered a source of shame by IP advocates. And while I (I hope obviously) don’t consider IP a fantasy, I think I see where the idea comes from — it follows logically from Rothbardian anarchism. I’ll explore it in more depth at a later time. But even if you dismiss the anti-IP position as silly, you do not get to dismiss the very real abuses and injustices it means to rectify. You must either own them, and try to rationalize them as moral goods, like Buddy Holly having to beg for the right to record his own music and being refused, or you must offer another way of addressing and correcting them, which I intend to do in time.

Indie writers don’t have any one particular position on the issue, but a few ideas are held by nearly everybody. What we write is ours. DRM (digital rights management) is evil. Traditional publishers are basically a cartel, and evil, or at best morally compromised and indifferent to authors. (Baen is an exception to this, and possibly so is Tor. They’re the only ones, though.)

I think framing the issue as IP is part of the problem. It allows for sociopathic rule manipulation, to the detriment of creators.

And there, I believe, is the real issue, the thing that most needs to be considered and addressed — creators’ rights. When you frame it as copyright or IP, as I shall document in coming weeks, the first thing most creators are required to surrender are the copyright and any and all claims to their ownership in the IP they have created.

The regular public doesn’t care much about IP. But they care very, very much when they learn that creators rights have been violated.

Oscar Micheaux

Oscar_MicheauxOscar Micheaux was born in the mid-1880s[1. There is some dispute about the year, apparently. Either ’84 or ’85.] in Illinois, grandson to former slaves. He worked in his teens as a Pullman porter in the railroads, then set himself up as a homesteader in or around 1904 in South Dakota.

Nine years later, he self-published his first novel, The Conquest, based closely on his own experiences as a black homesteader in an all-white community. Though he first published it anonymously, he sold it door to door himself, and its modest success encouraged Micheaux to write his next two novels, The Forged Note (1915) and The Homesteader (1917).

Apparently during the writing of The Homesteader, Micheaux saw D.W. Griffith’s The Birth of a Nation, and was simultaneously appalled by its vile portrayal of blacks, and thrilled by its pioneering use of complex, novelistic storytelling in the film medium.

ExileSometime after the publication of The Homesteader, Micheaux was contacted by the newly-formed Lincoln Motion Picture Company, the first attempt at creating an all-black film studio. They wanted to make Micheaux’s novel into a film, but he wanted more involvement than just providing the source material. Instead of selling the rights, he formed his own production company (financed, in part, by investments from contacts he had made in his Pullman porter days), and made a movie of The Homesteader himself — the first black-produced film in America.

It was a hit, both critically and with black audiences. Micheaux next made two strong answers to Birth of a Nation: Within These Gates (1920) and Symbol of the Unconquered (1920). With that out of the way, he embarked on the most successful career of any black filmmaker in the first half of the twentieth century, maintaining his independence right through his last film in 1947, and becoming one of the few filmmakers to jump successfully to talkies.

He did all of this without help, without any outside guidance, and with a fair amount of competition for a limited market.

He was his own studio, financing, writing, producing, directing, shooting, editing, and even distributing his films himself — literally, he drove each film, one print only, around the midwest and into the northeast in the trunk of his car, to each theater.

BetrayalIt wasn’t all success. The Depression and World War II eventually made making movies untenable for him, and he returned to novel-writing, putting out four more books in the early and mid-1940s. His final film, The Betrayal, was ambitious, a three-hour epic (based on one of his own books, again) shot with his usual budgetary, technical, and scheduling restraints. Alas, it flopped. Critics hated it, and the first audiences were so negative toward it that Micheaux pulled it from ever showing again. It is now a lost film.

You don’t hear about Oscar Micheaux much. There are a couple of reasons for that.

First, he had the wrong politics. The first half of a twentieth century in black America featured the clash of two separate and opposing ways of viewing race in the country. Booker T. Washington advocated individual self-improvement, “uplifting the race”. W.E.B. Du Bois, to over-simplify quite a bit, advocated reparations and a victim mentality. Du Bois won, eventually, and Micheaux was a strong advocate for Washington, which makes his work uncomfortable, at best, for those who continue to use race and racism as an excuse and a license.

Second, Micheaux was passionate, but he was not an artist. (Or, if he was, his extremely limited budgets defeated his vision pretty thoroughly.) His silent films are quite watchable, but once you get to his talkies, his movies can be rather tough going. You are unlikely to watch any of his sound films and declare that you have just seen a forgotten masterpiece.

However, he remains an important figure in film and American culture, even if he is mostly unknown today.

GirlFromChicagoOne reason we can gauge his importance is because copyright law in the first half of the century was not nearly as crazy as it is today.

Stop for a moment, and imagine how things would stand if copyright in Micheaux’s time was exactly what it is now.

Micheaux died in 1951, leaving no heirs as far as I know. His film production companies were all shuttered with the failure of his final film, The Betrayal.

In other words, no person or entity would clearly have inherited his intellectual property (IP). (At that point, in fact, it would appear that nobody would even have wanted it.) But by the terms of present copyright law, his copyright would endure for nearly a hundred years, even without anyone owning it.

Prints of his films went into vaults and storage warehouses, got left in theater projection booths. And if somebody found one, he could legally do nothing with it unless he wanted to risk getting sued or prosecuted. Because an orphaned work that suddenly appears to have value suddenly finds itself claimed by scoundrels and lawyers who have little or no connection to the original creator or owner. (See, for example, Wade Williams’s spurious, legally refuted claims to owning several 1950s films that the courts have found to be in the public domain. It doesn’t stop him from claiming copyright and suing, no matter how many times he’s been smacked down in court.)

Micheaux’s films would all be orphaned works, mouldering unseen because of the dark cloud of legal uncertainty hanging over them. Given the stock they were on, they would decay rapidly, and be lost to humanity, more likely than not.

SwingLuckily for us, copyright law in Micheaux’s time was quite different. Copyright did not attach automatically, and it was not functionally indefinite.

Although some of his films have copyright notices on them, only a few were ever actually registered (quite possibly because Micheaux could not afford the price of an extra print to be archived with the registration — recall that his potential market was very small; his budgets were almost all under $10,000, tiny even adjusted for inflation), and those which were registered were never renewed. Under the law at the time, those never registered were public domain immediately, and the rest lapsed into the public domain when they were not renewed.

That means that every one of them is free of legal shenanigans by unscrupulous IP parasites. If you find one of his lost films in your attic, you can restore it, or simply digitize it, and share it with the world, for a price or for free, with no fear of legal consequences.

This freedom means that all of Micheaux’s surviving films are available.

Because of the public domain, his legacy is preserved. It’s that simple.


Oscar Micheaux films on the Archive:

On Youtube: