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October 13, 2006

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Joshua James

Hey Issac,

I don't know that we're as far apart as our exchange may lead someone to believe, really. I think you'd like a more open dialogue between those that create intelletual property and those that execute and / or exploit it.

I'd like that to. I would.

Where we differ is that I don't believe, based on personal experiences and observed history, that loosening the IP laws will lead to that end result. I actually think it will go the other way and lead to a lessoning in dialogue (I think Gatz is an exception rather than the rule) and we'd see a lot of people packaging and profiting off of the sweat of other folk's work.

Even now, with the laws we have now, I've had my work changed without my consent (fairly recently, a professional production, too, though that's a story I'd rather not share publically, I'll tell you in person if you wish) or input and when I asked to be a part of that decision-making process, as the writer, I was told by the director that it wasn't up to me any longer, it was now his show and I had to accept it. We're not talking about a few minor cuts to a text, either, but rather a huge change that altered the ending.

I didn't, pointed out I had a contract and got the Artistic Director to step in and point out that, since it had my name on it, I was the author and that needed to be recognized. This happened because I owned the play and therefore the copyright and had the authority.

I would like to say that this is the exception rather than the rule, but unfortunately it's happened far too often to be an isolated incident. I've also worked with wonderful and collabortive directors, so this isn't a screed against directors. I love good directors. I hate the selfish, myopic ones. I know you stated explicitly that directors, et all, shouldn't change text without permission, but how to enforce that without copyright or IP?

I know you said living writers should be respected and involved, but you recognize that even now, oftentimes we are not, even when paid. The only thing protecting us is IP. Otherwise, the work can get twisted and exploited beyond our intent, and intent, as Malachy pointed out so well before, is part of our expression. It's ours. Like it or lump it.

Just because I didn't like the last three Star Wars films doesn't mean I have the right to make my own three movies, with the same characters, and shoot them the way I'd like. They're not mine. They belong to George (literally, too, because he produced them he didn't sell the copyright to a studio. He, like Disney, actually does own his creations) and what he does with them is up to him. We don't like it, we can create our OWN sci-fi adventure. Nothing's stopping anyone from doing that.

And so onto this.

"Or, to put it another way, just because you invented Harry Potter doesn't mean he's yours"

that's actually exactly what it does mean. Because if it doesn't, why pay JK, why honor the work she's done, if the books are NOT hers, which is, in essence, what you're saying. Potter is ours to READ if we choose, and that's it. We don't have to read him if we wish not to. He doesn't belong to us as a character. She invented him and that means he is hers. That's what it means. And should mean. JK is still with us, after all. Even if she wasn't, does that mean someone can sell her books with someone else's name on them? I don't want to get into the dead thing. Again, I can point you to Lee Goldberg's site on fan fic, where he breaks down quite elequently the negatives of that.

I'd love more of a dialogue on the process, but my experiences and observations seem to point that already the writer is treated as somewhat unnecessary, and loosening the IP laws will only make that worse, not better for us. I think that directors already have far more power than the writers, as a whole, and the balance should be even, in the end.

One last note. I have file-shared, in my day, and used music in a play (though I try to credit them whenever possible). I've done many an outlaw thing, jay-walked, gotten in fistfights over girls and have occasionally taken the lord's name in vain (well, maybe more than occasionally) but there's a difference between taking a toke on a joint that someone passed to you while you're at a party and getting legally drunk and getting behind the wheel of a car. One is a misdemeanor and the other is a felony.

So using a shared copy of word isn't, to my mind, on the same ethical plane as plagerism, which is a whole other kettle of fish. Plagerism is terrible and right up there, as far as writers go, with drinking and driving. It's not petty theft. IP protects us from plagerism.

We've all worked in offices and have, from time to time, taken a stack of post-its or ream of paper because we were out at home and mentally just thought, hey, everyone does it. Shit happens. Management knows this shit happens and they don't sweat the small stuff.

Work at an office and embezzle a significant amount of money, however, or steal a printer or a computer, then it's a whole new ball game. It's no longer petty theft. No longer a misdemeanor.

Just like there are readings of my plays that I may not have approved, I let that go. Petty. That's the toke someone took and there's always going to be a little of that. I accept that. It happens. It's one reason I have some of my material on my site. Misdemeanors happen.

If someone had a reading of my work without telling me, or put up a short play of mine for three days, I'd shrug and say, hey, shit happens. It's not right but it's not as terrible as some things. It's a toke. Petty. Not bad or not good. Just is.

Now then. If someone put up a production using parts of one of my plays, without my permission, put their name on it and profited off of it, I would be upset and understandably so. Not petty any longer. Bad. Plagerism.

How can a loosening of IP and copyright protect me from that happening? How can it, as you ask in your fifth point, get writers more involved in a process we're all too often not a part of as it is? How can it make it better for the creators if IP?

I reread your post and didn't see the answer to that. You mention that in Europe it's different (in Europe, screenwriters retain copyright of their scripts, in the US they don't) and playwright's make a living because the laws are looser, but you don't mention exactly how - that's something I'd wish to know.

But it's good to have this dialogue, just clarifying it for myself is a good exercise.

Malachy Walsh

Cool. And thanks for laying it out better.

On (1), I'm still with people "owning" what they make. You make it, it's yours. Part of your beef is with corporate ownership of images and specific expressions that have cultural currency. I can appreciate that, but artists and corporations both have invested something, often money, certainly time, into creating and maintaining these things. Why should they just let someone else use them any old way they want? It could damage the idea they're trying to put out. I don't think this should be pushed to ridiculous lengths, but I generally don't think it is - at least it doesn't appear so on SNL's commercial parodies where some very acidic statements have been made about corporate products, services through grotesqeries of corporate imagery.

On (2), yes.

On (3), I go back to my response to 1. More directly, about EPS's Gatz: The piece may be beautiful, but EPS has created something specifically using the work of someone else. In fact, my understanding is that it's word for word. They also are selling tickets to this thing, making money on it. I think it can be reasonably argued that thus they are trading on this property - and the author's name - for gain. Since the people at EPS are pretty smart, I'd guess they knew this ahead of time. A cynical person might say that they even anticipated the problem and are juicing the situation to sell more tickets when it does open - and wherever it opens. If they really believed that this art they've made is so precious that everyone should see it, they could always put it up in a space, let word of mouth draw people to it and not charge admission. I don't think (does anyone know for sure?) the estate could do much: No-one is gaining on it in the financial sense and it amounts to a parlor read. Adaptions, particularly direct adaptions that trade on a name or title, should be controled by the people who own the name or title. All you can do is hope that the people who do this aren't crazy (as in the Fitzgerald thing).

On (4), I'm not sure I agree with your distinction between advertising and art, simply because art is so often a product that is sold, thus, something is being asked for and taken. Though, when it comes to ads, well 99.99999% of all advertising doesn't even come close to being art - and none of it was made to be seen as art. Which is why I'm interested in this notion you have because there is some fundamental difference between these forms of communication.

On (5), I never thought you've suggested anything but this.

On (6), I always felt Public Domain was a kind of line in the sand - quite arbitrary in its definition - as the Mickey Mouse and Bono examples suggest. But do dead people have rights? No, but they do bequeath property to loved ones, etc, and when it comes to books, movies, plays, etc, those are all forms of property. For me, stripping the right to control the use of a property from the owner of a property (inherited or paid for) is like saying, you can own the house, but you can't live in it and you have no right to say who can live it or how they live in it or wha they do to it. Thus, ownership becomes meaningless. Until we figure out a better way to organize society, I'm definitely against that.

Anyway, those are my thoughts.

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