Intellectual property and creative freedom within the cultural vernacular

ABSTRACT

In a world dominated by the distribution of global media franchises, what are the impacts on creativity when intellectual property law seeks to control what can and cannot be written? The development of modern distribution mechanisms that allow corporations to distribute copyright protected works such as film franchises globally and across many different media has had a significant effect on the cultural vernacular. Generations are now growing up with storyworlds that are the intellectual property of multinational businesses, rather than within the public dimain (as might previously have been the case with folk stories and religious texts). With Jenkins’ ideas of Participatory Culture perhaps sidestepping the consequences of intellectual property ownership, this paper looks to Hyde and others to question whether current intellectual property discourse properly acknowledges the issue of how the pervasive marketing of ringfenced storyworlds is affecting the creative community’s relationship with the cultural vernacular when seeking to create commercially exploitable work. This paper argues that moral as well as legal questions must be raised regarding the extent to which corporations should be effectively allowed to own elements of the collective story consciousness and, as a consequence, to exert control over the creation of new works.

KEYWORDS:

• Intellectual property
• copyright
• cultural vernacular
• distribution

From T-shirts to tea towels, everyday phrases to public art and advertising, we live in a world that is saturated by protected intellectual property. In the case of film franchises in particular, we might be exposed to images, music or quotes from copyrighted works within the public sphere on a near daily basis. You or I might not have ever seen an Avengers movie (Russo and Russo, 2019), or read a Harry Potter book (Rowling, 1997), but we are very likely to be aware that these franchises exist. This mass marketing is intended to build and maintain an audience for these franchises upon which the studios have spent millions and sometimes billions of dollars, and their fierce protection of this IP is intended to ensure a return on this investment and reward the studio for risks taken and efforts made.

But the copyright laws which protect these works were originally developed in the eighteenth century, in a different technological world, in which instant global reach was not yet possible or likely even thought of. Copyright was largely intended to protect the individual, and the vast majority of the cultural vernacular was a part of the public domain. Our modern reality is very different. The assimilation and transformation of many folk stories by multi-national entertainment coporations with multibillion dollar turnovers into protected pieces of IP, coupled with the pervasiveness of the distribution of these and other properties has vastly reduced the percentage of the global story consciousness that is not somehow legally owned. Few areas of the public imagination are untouched by these vast franchises.

It is my contention that this particular modern reality, which has been developing for the last half century, is actively impacting, and in many ways restricting, the freedom of the global creative community. As Lewis Hyde puts it, modern distribution methods and the behemoth franchises that they have created ‘risk excluding modern creatives from their own creative commons’ (Hyde 2012), with potentially catastrophic consequences for the next generation of creators. In this paper I will argue that this ever-growing enclosure of the cultural creative commons, resulting from pervasive global distribution of huge film franchises in particular, has a direct impact on creative individuals’ choices and opportunities, and, as a result, on the wider imaginative landscape itself. In an age where we need to find new ways to tell stories ‘for Earthly survival’ (Haraway 2016), this monopolisation of the public space by one story structure should be recognised and thought given to what this could mean for us all.

For as companies such as Disney and Netflix reach more of the world’s population and acquire more of the world’s IP, the relationship between the writer and her or his own cultural vernacular, begins to change. Any creative person’s everyday life, the space from where they might seek to draw their inspiration, is increasingly permeated if not dominated by fiercely protected intellectual property. Despite the fact that they may be exposed to this work without their consent (though I recognise that this claim may not stand up as a legal argument if tested in court), copyright laws ensure that writers have no automatic right to incorporate this property into their creative work as they wish. This means that Tolkien’s ‘leaf-mould of the mind’ (Tolkien, quoted by Carpenter 2011) or LeGuin’s ‘carrier bag of fiction’ (LeGuin 1986), by which these authors describe the myriad of ideas, mental images and experiences from which creative people develop their work, has become more and more a catalogue of intellectual property owned by somebody else. The writer is not at liberty to legally assimilate elements from the wider public story consciousness into their own work without seeking permission. For writers working in the modern world, true freedom of expression must become instead a sanctioned freedom – with permissions, should a writer wish to reference a particular piece of IP, dependent on the whim of the studio lawyer.

It is not my intention to use this article to attempt to dismiss the general usefulness or validity of the wider system of current IP legislation in this article (for the purposes of which I refer in the main to US and UK law). As both a maker and consumer of IP, I can see both positive and negative consequences of the current IP law and practice. I believe in the right of a creator to commercially exploit their own work on an exclusive basis for a reasonable term, and for the major studios to protect work into which millions of dollars have been poured – film piracy, for example, is a legitimate complaint. At the same time however, I do consider that some of the ways in which IP law has been interpreted or applied, in our modern media landscape, lacks clarity and fairness.

In my opinion, IP law is out of step with modern distribution methods and capabilities. While some may argue that the digital revolution is providing more opportunities and more commercial freedoms (such as direct distribution) than ever before, my argument is that in other ways, creative freedom is also being diminished. Media distribution has never been so pervasive, global or immediate, and as a consequence a writer’s agency has never been more under threat.

In his book Common as Air, Lewis Hyde talks about the moral, as well as the legal and commercial, economy of art and ideas (Hyde 2012). Using the language of the Early Modern practice of enclosure, the process whereby common land was taken into private ownership (and many people thus deprived of food and fuel), to describe the way in which intellectual property is evolving, he asks what rights anyone should have to exlude others from the cultural landscape. I find this to be useful. It allows us to consider not only the practice of enclosure, of putting and keeping certain things within boundary walls, itself – but also the rights of the excluded and how historical precedent may be reconsidered.

In Hyde’s view, there are different types of enclosure – the first being the historical, physical enclosure of farmland as described above, but also a ‘second enclosure’, whereby legal scholar Boyles’ ‘“commons of the mind” have been more and more converted into private preserves where the right to exclude comes before everyone else’s right to the common’ (Hyde 2012, 45). This emphasis on the way in which the right to private ownership usurps the right to the common is an important factor in Hyde’s argument. For Hyde, this second enclosure is an ‘invasion’ of exclusive rights ‘into old and recognised cultural commons’ (Hyde 2012). We might for example easily see that the appropriation of folk stories by Disney, as a clear example of this second definition of enclosure, and the way in which this has been allowed to happen as an issue that should not go unchallenged.

Hyde also describes a ‘third enclosure’, the term which he uses to describe the practice of protecting works or pieces of knowledge that does not yet have an ascribed value or use. An example he gives is of a scientific discovery, protected before any researcher knows what it might be used for, and therefore potentially preventing it from being formative in, say, a cure for cancer. Hyde calls this a ‘preemptive planting of claim stakes in fields not yet understood. In these cases, we cannot even name the commons that are lost; they lie in futures now foreclosed’ (Hyde 2012). The Conan Doyle Estate vs Netflix conflict (Gardner 2020) is an example of the latter. While the majority of the Holmes stories are in the public domain, the Conan Doyle Estate claimed that the Sherlock Holmes character depicted in the 2021 film Enola Holmes (Bradbeer, 2021) infringed the copyright of some of Conan Doyle’s later (and therefore still copyright-protected) stories because he had the capacity to feel empathy, which only developed in these later works. That even the demonstration of a character’s feelings can be cited as evidence of a copyright breach provides an example of how complex and nuanced these arguments can become when there is valuable material at stake.

I find Hyde’s descriptions helpful and sympathetic; he speaks of a common inheritance being lost, of barriers being raised and of the large open spaces of our collective creative spaces being fenced in. When discussing the impact of the internet on this space, he even notes how new technologies have ‘given rise to astounding new commons and, at the same time, to almost as astounding new enclosures.’ The development of digital distribution means that it is easier to share works more widely and for anyone to create responses to them, but at the same time requires that this is done within a legal structure developed in an analogue age.

Hyde notes that in the 1850s, Harriet Beecher Stowe lost a case seeking to block the publication of a German translation of her book Uncle Tom’s Cabin. The ruling stated that, when an author has published a book, ‘his conceptions have become the common property of his reader, who cannot be deprived of the use of them.’ (Stowe v. Thomas, quoted in Hyde 2012, 56). It is this fundamental understanding of the relationship between a human being and their memory and imagination which I believe needs reexamining for a modern age, if we are to protect our cultural commons from further enclosure. The current inability of a creator to protect his or her own cultural landscape from incroachment by protected works necessitates a re-appraisal of what it means when companies practice worldwide distribution. To disseminate protected materials into the world at such a huge and pervasive scale, might be seen, while perhaps not itself a fourth enclosure per se, but as an absurd and extremely worrying attempt to enclose the cultural vernacular itself.

My relationship with this idea is personal. I was born in the year that the original Star Wars film (Lucas, 1977) was released. For me, the world has only ever existed with Star Wars in it. The coming of the Magi, Goldilocks’ search for the perfect bowl of porridge and the quest to rescue Princess Leia are all parts of my childhood that, in narrative terms, hold equal weight for me. Growing up in the UK and attending a Church of England primary school, I learned Bible stories, fairy tales and Star Wars sagas, and saw all these stories and more widely referenced on buildings, stamps, lunch boxes and in everyday figures of speech and so forth. My own carrier bag of fiction is full of these stories and there is just as much C3PO in my cultural heritage as there is Father Christmas, or Noah and the Ark.

But while I am free to write, publish and distribute a piece of work about these widely known folk characters without seeking anyone else’s permission, I cannot do this with a Star Wars robot. With the former examples, as long as my piece of work does not copy anyone else’s interpretation of those stories, I can publish as I wish and might even expect to receive financial compensation from my work. But the same cannot be said from making a piece of work that features characters from, or even mentions the Star Wars franchise – and I know, because I have tried it.

In 2016, while I was working as a Development Executive at Creative England, a UK public funding agency for film, I was approached by the writer/director Rhys Davies about a project called Finding Yoda (Davies, unpublished). This was a romantic comedy about a group of 40-something friends searching for a pile of Star Wars toys that had been buried after the closure of the Palitoy factory in the north of the England in the 1980s. The factory was a real place, and the burial of the toys was based on a true story (Galloway 2021).

Creative England were interested in funding the development of the project, but before doing so sought confirmation that LucasFilm would allow us to use the necessary IP. Of course, one might question if obtaining permission was necessary, or indeed which permissions we should have requested. Should we have asked simply to be able to refer to Yoda in the film’s title, to feature the merchandise or of a combination of the two? Perhaps it should have been questioned whether the company had no right to restrict the project at all, considering that it was based on events that were in the social public domain. Instead, however, it was assumed that the company did have the right to restrict the project, simply because the Star Wars storyworld was referenced, and, perhaps due to the litigious reputation of the company, permission must be sought. We duly put in a request, but no response was received, and the development funding was not given.

Four years later the British Film Institute expressed an interest in the project and the same request – that LucasFilm should grant permission for the project to be developed – was made. This time, working with Davies as independent filmmakers, I approached Lucasfilm direct. The response that swiftly came ended with the words:

Although we appreciate your interest, we cannot grant you the permission you seek … Lucasfilm Ltd. is the sole and exclusive owner of the Star Wars motion pictures and any other Star Wars properties. These properties and unique elements that appear therein are protected by the copyright and trademark laws of the United States and other nations. Please note that any unauthorized use of these names, characters, music and images would, at a minimum, be inappropriate. (LucasFilm, personal communication, February 9th^, 2016)

Despite the fact that this story was based on true events and could feature toys that the filmmakers had bought as children, we were not permitted to continue. LucasFilm had determined, that we could not tell this story – our story – because a major part of our childhood identity was in fact ‘theirs.’

Needless to say, after that email, the BFI backed out and while the BBC documentary Toy Empire: The British Force Behind Starwars 2019 has since been made about the Palitoy factory (featuring a number of Star Wars toys in the footage, with presumably no rights issues raised) the fictional story about a group of friends looking for the figures that factory workers have admitted to burying has not – due to the LucasFilm email – been developed.

I am not trying to claim that no third-party exploration of storyworlds such as Star Wars takes place. Non-authorized fan fiction exists and is sometimes tolerated by LucasFilm, and individual authors have created and published sanctioned materials that build upon the Star Wars world. Artists can and do approach the owning corporations and are granted the licensing agreements necessary to allowing the publication or distribution of work which they deem appropriate to the brand – but in these cases significant restrictions are often put in place.

As an example, Ian Doeschler is the author of William Shakespeare’s Star Wars (Verily, A New Hope) published in 2013 by Quirk Books. This lavishly illustrated book loosely tells the story of Star Wars in iambic pentameter as if written by Shakespeare. The book has been sanctioned by LucasFilm – it has been published, and the writer has been allowed to put his name to it. The copyright notice in the book however makes it clear that while the book is the work of the author, the copyright of the book belongs to Lucasfilm Ltd. All rights reserved – used under authorisation. (Shakespeare’s contribution is of course ignored for IP, if not for marketing, purposes.)

On the author’s website, Doeschler also makes it clear that, although this work is a play, the author has no right to grant anyone the right to perform it (which is usually a right that the author of a dramatic work retains). That right also belongs to LucasFilm Ltd. Indeed, in conversation he explained that the deal with LucasFilm that allowed him to publish the book first required him to sign away all of his rights within it. He could write it – but it was no longer his (Doeschler, personal communication, 2023).

The gorgeous cartoon Darth Vader and Son (Brown 2012) carries a similar copyright notice. Once again, the author has been ‘allowed’ to make this piece of work, but denied any ownership of it. (Other examples of this practice can be seen elsewhere, with the Star Wars Legends and Visions series providing good examples.) Doeschler makes it very clear that he has no complaints about his relationship with LucasFilm and sees himself as fortunate to have been permitted to publish the work (Doeschler, personal communication, 2013). However, one does wonder in both of these cases whether it is necessary for such a giant corporation to deny an individual writer any rights over a work which is clearly an affectionate homage to the franchise and will in no way harm the studio’s earning potential.

The question of the commercial potential of any work based on third party IP is an important one. IP laws exist to protect the original owner from a third party engaging with and making a commercial gain from the IP rights of another, thus damaging the original owner’s earning potential. But as mentioned above, this where current legislation is not perhaps in keeping with the reality of the world in which we live.

In the twenty-first century it does not seem possible to argue that the earning power of the Star Wars franchise will be diminished in any way by a writer earning money from publishing a piece of work inspired by this franchise. A Star Wars fan who buys a Darth Vader and Son book will still spend money on the franchise on which the cartoon’s characters are based. In this situation, a creative individual’s ability to earn a living wage could be boosted significantly, while the franchise suffers no financial loss.

Studios – and scholars – have long been lenient with non-commercial fan engagement. Henry Jenkins’ work on ‘participatory culture,’ (1992, 2006, 2013) looks in detail at the relationship between the corporate producers of media culture, its fans, and the works they make based on their favourite films and TV shows. For Jenkins, ‘participation’ is an extension of the idea of the active audience, such as extending the storyworlds in which fans’ favourite characters exist by making and sharing additional media about them. The ‘participatory culture’ that Jenkins describes is understood to lack a commercial element, and it is because of this that the studio’s permission – or rather lack of prohibition – is generally understood.

While ‘they are acutely and painfully aware that those fictions do not belong to them,’ Jenkins suggests in his earlier work that fans are empowered through participatory culture, and corporate producers benefit from an actively engaged audience (1992). Jenkins posits that the very nature of participating in the stories they love means that fans are also creating culture. Fan creation, he states, ‘challenges the media industry’s claims to hold copyrights on popular narratives.’

He goes further, stating that:

Once television characters enter into a broader circulation, intrude into our living rooms, pervade the fabric of our society, they belong to their audience and not simply to the artists who originated them. Media texts, thus, can and must be remade by their viewers so that potentially significant materials can better speak to the audience’s cultural interests and more fully address their desires.’ (p279)

Here, Jenkins echoes the judgement in Stowe v Thomas, in stating that once a story is in the world, that it belongs in part to its audience. Clearly, I agree with part of this argument, but I take exception to the statement that media texts ‘can and must be remade by their viewers’ (my italics). By stating this, Jenkins seems to brush aside the fact that viewers still face restrictions in doing so. Textual Poachers tends to skirt around the issue of copyright law, and as such his arguments are undermined. It is not the case that fans ‘can and must’ make what they like from the film franchises – but rather that the studios in some circumstances choose not to prohibit them from doing so.

In Jenkins’ later work Spreadable Media (2013), in which he admits that while the relationship between producers and audiences is changing, that ‘few companies … are willing to take what may be seen as substantial risks with potentially valuable intellectual property’. He speaks of an ‘unavoidable friction’ between producers and fans, and of the need to continue to develop a media environment in which participation is not only possible but ideally, though perhaps not possibly, equal. In a 2013 paper (Jenkins and Carpentier 2013) he acknowledges that the idea of a true participatory culture is not achievable, but that a ‘more participatory culture’, or participatory process, might emerge instead. Perhaps this more nuanced exploration of participatory culture reflects the changing nature of what might be considered economic or commercial participation. As fan fiction finds bigger audiences and moves to platforms that can be easily monetised, the boundary between what is commercial and what is not, what is amateur and what is professional, becomes more blurred – and Jenkins admits that ‘corporations are, through terms of service, establishing the terms of our participation’ (Jenkins 2013, 270).

While Jenkins goes no further in arguing against this, a number of prominent organisations and scholars have begun to push back against what they argue are outdated IP practices. Noted US law professor Laurence Lessig, who has noted that ‘ours is less and less a free society … Culture is owned’ (Rothstein 2003), has written extensively about the impact of intellectual property law (1999, 2002) and campaigned to reduce the term of copyright. Notably, as well as arguing for a returnto the 14-year term stipulated by the Statue of Anne (Sherman and Bentley 2003), Lessig challenged the 1998 Copyright Term Extension Act, which successfully sought to extend the usual, already generous, term of US copyright¹ by a further 20 years. This Act was brought when many early twentieth Century film copyrights were coming to the end of their terms – including the original Mickey Mouse as featured in the 1928 cartoon Steamboat Willie (Disney, Iwerks 1928). Though a number of rights owners sought to extend their copyrights, the Act was dubbed the ‘Mickey Mouse Protection Act’ as Disney (now the parent company of LucasFilm) was one of the most notable beneficiaries of the result.

While Lessig’s challenge to this act was not successful, it will be interesting to see how the upcoming end of other copyright terms will be dealt with by the studios as many of the additional 20-year terms that the 1998 Copyright Term Extension Act granted come to an end. Some significant media characters / properties are due, in the next decade, be released into the public domain – and the race is now on for lawyers to protect them (perhaps before another Winnie the Pooh: Blood and Honey (Frake-Waterfield 2023) is released into an unsuspecting universe) either by further extension acts or other means. The use of Trade Marks is one; the other may be the right of association, as these characters are deemed to be inextricably linked to the parent company and so any malign use might be deemed defamatory. This is conjecture only, but the question of how the media companies might react is already in the air (Barnes 2022). With this in mind however it is interesting to ponder the true function of the continual production of Star Wars spin-off works – whether it is to entertain the fans, or to effectively extend the storyworld’s IP terms indefinitely.

As the Creative Commons organisation also contends, a shorter copyright term offers some protection to creators but would free up the creative vernacular – projects such as Finding Yoda would be free to fail on their own merits rather than on the whim of the LucasFilm lawyers. Lewis Hyde also agrees that a shorter copyright term would be beneficial in limiting the consequences of what he terms the second enclosure – and demonstrates crucially that a shorter copyright term has a negligible impact on the original creator’s ability to benefit commercially from their work (2012).

The non-profit Organization for Transformative Works (OTW), which describes itself as ‘a non-profit organisation established by fans to serve the interests of fans’ seeks protection for fans in the Transformative Use exception to Fair Use. The OTW states that ‘We believe that fanworks are transformative and that transformative works are legitimate’ (OTW 2023). Fair Dealing (or Fair Use in the US) is the term to describe certain exceptions to copyright law. Under Fair Dealing exceptions, a third party is able to use protected works of IP without redress if they fall into various agreed categories. In the UK, these include research and private study, criticism or review, or news reporting (IPO 2021). For example, a film review programme might air a clip from a film it is reviewing without needing to seek permission from the rights holders, as it is deemed that the use of the clip in the purposes of reviewing the work is legitimate. Educators routinely use Fair Dealing to show works to students.

However, in the UK, there is no statutory definition of Fair Dealing, meaning that Fair Dealing exceptions of copyright law can only be defined by a court. As the UK Government’s own website states:

There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work? (IPO 2021)

The lack of a statutory definition of Fair Dealing can mean that it is open to interpretation – and the idea of by whom and just how the law might be interpreted is a crucial one. Leaving parties on either side reliant for redress on court judgement means that many individuals are effectively excluded from the process, thanks to the expense of going to court, automatically favouring those individuals or corporations of extensive means.

The case of The Clock can be used to demonstrate this. In 2010, artist Christian Marclay produced a 24 hour edit of sections from well-known films, all of which feature clocks in their content. When played from midnight, the piece offers not only an accurate portrayal of the real time, but also (its fans claim) ‘tells the story of humanity’ (Tate 2023). Whether one sees the work as a masterpiece or simply as a clever piece of editing, the fact is that this work contains some 12,000 moments from different films, none of which were cleared for use in this project. Since its creation, Marclay has sold copies of the work to various galleries for vast sums (LA Times 2011) despite having no permissions from the original rights holders to do so.

There are several factors at play here – not least the definition of this piece of work as ‘art’ rather than as a commercial film, which may be working in Marclay’s favour. The prestige of being included in this lauded work alongside other famous works, and the stigma of being the only (or first) filmmaker to sue may have also helped keep the artist out of hot legal water. But the interpretation of whether or not the artist was working within accepted copyright exceptions is, for this article, the most important point.

In the UK, the exception that this piece relies on is that of Parody, Caricature and Pastiche. In 2014 the piece was referred to in the House of Lords as ‘a pastiche of thousands of time-related film and television clips’ (Hansard 2014) in a motion to approve recommended updates to Exceptions to copyright which were eventually granted. Happily for Marclay, this legislation effectively protected his work in retrospect. However loosely one believes the definition of pastiche is being used, it would now take an expensive court case to contest it.

In the US, the exception used is Transformative use, a type of Fair Use by which a work can be deemed to have built upon another in a manner which leaves its original purpose altered. New works ‘transcend’ those on which they are based. In Marclay’s case, he might argue as (his galleries do) that The Clock is more than the sum of its parts. However, even the transformative exception is not always straight forwards. In the recent case involving Lynn Goldsmith and the Andy Warhol Foundation, further definitions within transformation were debated all the way up to the Supreme Court (McSherry, Gagliano, and Trendacosta 2022).

This leads us to the reality of a legal system which is based not only upon interpretation, but also creates a situation where the party who can best afford to put Fair Dealing to the test is most likely to emerge from a dispute victorious. In my own case, it is the interpretation of the law by the Lucas Film lawyers that has prevented me from pursuing Finding Yoda. I was not able to continue, not because I believe that they were right and that my filmmaking partner and I were in the wrong – but because Disney has more money than I do. Lucas Film could choose to take me to court and bankrupt me in the process even if I was perfectly entitled to do what I propose. It is the threat which has stopped me. It is the size of the corporation which limits the extent to which individual creatives can risk poking the giant, just as this stopped Ian Doeschler and others from attempting to (in my opinion rightfully) earn a living from his own work. I believe that a much clearer and broader definition of Fair Use would allow creatives to ‘sample’ the world in which they live far more easily, leading to further creative innovation with benefits for both the new creator and the holder of the original IP.

Books such as Copyrights and Copywrongs (Vaidhyanathan 2003) and Against the Intellectual Monopoly (Boldrine and Levine 2009) offer compelling arguments of how IP law could, and perhaps should change in our increasingly interconnected world. Vaidhyanathan argues for example for a ‘thin’ copyright which gives more flex to creators; while Boldrine and Levine argue that ‘progressively but effectively abolishing intellectual property protection is the only socially responsible thing to do’ (2009, 243). The development of the Creative Commons licensing system seeks to encourage the placement of some works outwith Intellectual Property ringfences from the get-go, allowing individuals to make of these works what they will.

Though it is not possible to note many individual examples here, it is important to acknowledge that the number of voices calling for copyright reform is growing. Interestingly however the focus of many of these voices is on the mechanism of IP law itself – on issues such as the length of the protected term, or which fair use exceptions should be made (Dnes 2013). I suggest that we might perhaps also look at how distribution intersects with copyright protection, as a means of protecting our shared cultural space. For example, rather than concentrating on a time limit of copyright protection, we might instead consider the scale of distribution. When a product has been distributed over and above a certain number of times, or across a certain number of territories, we could limit the legal controls that a company might retain. This would not affect the studio’s earning potential (as they would have already made significant sales from this product) but this would free the creative individuals wanting to react to the world in which they live. This idea would offer protection to IP creators at the start of a work’s life as it goes out into the world; and to the individual receiving a work from the world.

Indeed, should we even be thinking about this in terms of intellectual property at all, but should we consider a form of intellectual territory instead, if we are to protect our cultural commons from further enclosure? Just as Lessig and Hyde use the useful analogy of the commons, both in the sense of place and ownership, can we not also consider the primacy of one’s own intellectual landscape as a space in which corporations should not be able to trespass – at least not without consequence? The idea that an individual’s attention is valuable is not a new idea and indeed forms the basis of many a twenty-first century business model. But we should consider too our attention as a valuable asset in its own right, that is worthy of protection. A diverse storytelling consciousness is a rich one. Streaming means that every person is a potential customer of the same stories, at the same time, from the same studios, in a way in which the old theatrical sales, distribution and exhibition system would never have supported. How will this impact global story world as the next generation of storytellers emerge? How far will the territorial expansion by means of distribution, by the studios, effect the diversity of the world’s story telling cultures? Should ubiquity be allowed to equal monopoly?

It has long been noted that Disney made its name and its money by taking fairy stories that existed across cultures and continents, enclosing them for their own artistic and commercial exploitation (Giroux 2010; Horn Book 1965). These works have then in turn saturated the collective story consciousness. Mention Snow White to most people in the cultural West and an image will come into their mind of the Disney cartoon. Only a very few will have a cultural reference which does not involve one of Disney’s animated films – or indeed know a story which does not follow the Hero’s Journey story structure which dominates Disney’s storytelling style. This standardisation of story is akin to that of the loss of the independent local high street – we risk a world in which everywhere begins to look the same.

The consequences of global distribution of film franchises therefore includes both the exclusion of the creative individual from an increasingly enclosed story consciousness and the standardisation of the cultural vernacular. It is my belief that this must be challenged. To limit an individual’s use of these storyworlds, which now form a part of the material as well as the imagined world, is surely an attack on an individual’s right to respond to the society in which they live. In order that every creative individual might freely react to, and protect, their own cultural heritage, and control either their characters’ story, or their own, we need to strive for change. As Lessig has remarked: “no one can do to Disney as Disney did to the Brothers Grimm” (Levy 2002). Surely we must argue that the studios own latter-day fairy tales are now just as ripe for the plucking?

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No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Wendy Bevan-Mogg

Wendy Bevan-Mogg is a film maker, writer and Senior Lecturer in Film at the University of the West of England, where she teaches across the BA Filmmaking Programme. Wendy has worked across the whole of the film value chain. She has significant industry experience in script development, physical production, sales and distribution. She has line produced a number of award-winning feature films, and spent two years working in the development department for a public UK film funder.

Notes

1 The current term protects work for the author’s lifetime plus 70 years if created by an individual, or 95 years if the work is made by or for a corporation.