A new Joker film had its first — and probably last — showing earlier this month at the Toronto International Film Festival. The People’s Joker, described as “a queer coming-of-age story complete with a copyright-defying array of villains and heroes,” was screened once and only once. Future screenings of the film have been pulled due to “rights issues,” creating yet another controversy surrounding copyright, trademarks, fandom, and fair use.
The People’s Joker is, without a doubt, a parody of the Joker origin story, and its September 15 premiere at TIFF was received with a ton of buzz, followed by an “angry letter” which led to all subsequent screenings being cancelled. Vera Drew, the writer-director-star, initially said she would try to place it in another festival, but soon after declared she would work on resolving the rights issues and finding a way to distribute the film.
Copyright reflects the expression of ideas: it is designed to allow people to make money off their creative work, and to reap the benefits of having created a piece of popular media. But professor Betsy Rosenblatt, a former lawyer who teaches intellectual property theory at the University of Tulsa — and who is also the legal chair for the Organisation of Transformative Works (OTW), a non-profit organisation that works to preserve and protect fan work and fan cultures — says that some companies have decided to take a dramatically over-reaching view of what copyright and trademark law give them.
“Copyright is very explicitly designed to permit and encourage the creation of follow-on works that edify and enhance the public experience,” Rosenblatt said. “The idea behind copyright is that people can make money off of their creations, not that they can prevent other people from using those creations in ways that are expressly beneficial, such as commentary, critique, and parody.”
The fact is that parody is explicitly covered by fair use law, which is determined by four factors — the purpose and character of the use, nature of the copyrighted work, amount or substantiality of the portion used, and the effect of the use on the potential market/value of the work.
Since the 1970s, Disney has aggressively pursued congressional lobbying campaigns to pass legislation that extended copyright protections. First in 1978 and again in 1998, the company successfully lobbied to push the dates of public domain release further and further back. Entry into the public domain now stands at 95 years after the first copyright. Currently, there is a whole slew of characters and properties that would be in the public domain right now if Disney hadn’t lobbied to change the law in 1998, including characters like Mickey Mouse, Bugs Bunny, Superman, Batman, and Captain America.
While preventing certain copyrights from entering the public domain doesn’t truly matter for the discussion at hand, there is little doubt that companies have sought to extend copyright to use as a method of over-compensating their legal claims to intellectual property as leverage. “Copyright owners have made a practice of using copyright as a threat against creators with limited resources who are not infringing [on copyright],” Rosenblatt said.
By extending copyright law, companies have extended the duration of time that they can use to threaten small and independent creatives and artists, which is basically what happened to Vera Drew and The People’s Joker. “And they’re not only using copyright,” Rosenblatt said. “A lot of the problems are coming from overreach in trademark law.”
While copyright is concerned with profit and competition, trademark law is concerned with branding. Why does it matter at all whether or not Batman is available for fans to use in their art? Because we — the fans, the culture, the artists, the people who love Batman — deserve to play in the sandbox too. More than that, why don’t we deserve to publicise our work? Why don’t we get to celebrate our art, our interpretations, gain clout and fans, and maybe even get paid for our work?
Society is not served when art — especially massive cultural tentpoles like Batman — is kept behind corporate lock and key. Individual ownership of art suits the creator for only as long as the creator is alive to benefit from their creation. Allowing corporations to use their copyrights and trademarks as a legal cudgel against punk artists without means artificially extends their legal stranglehold on household names, which serves corporate interests and not those of the public, or other artists.
Besides the fact that Vera Drew’s proudly queer rewriting of the Batman canon was created with the intent for it to fall under parody/fair use laws, the ethos of this production and my point in this blog are the same: Give the art back to the people. There’s also legal precedent that not only fully supports parodies like The People’s Joker, but actively encourages the creation of such work. In the 1994 Supreme Court case Campbell v. Acuff-Rose Music, the court unanimously protected criticism, parody, and critique under the first amendment. Justice Kennedy, in a supporting argument, wrote that parody must interrogate and critique the original, and not just the general style of the genre. He also said that parody should not be suppressed because the copyright holder is afraid of critique.
Creators deserve to benefit from their art while they’re alive and able to enjoy those benefits. A complete free for all of intellectual property, especially when it comes to traditional production means — big-budget films, publishing houses, etc. — would be a disaster. But there is a large swath of artists who can make pieces of immense value using shared cultural touchstones to critique culture, art, and our relationship to those things. “Companies are relying on a sense of entitlement that isn’t connected to the law,” Rosenblatt pointed out.
Let people create what they want to create! If a fan-made, indie, deeply punk retelling of the Joker’s origin story is a threat to the company that owns the copyright to the Joker… maybe it deserves to be threatened. Maybe companies should be more in awe, more respectful, and more accommodating to artists who see their own stories through a larger cultural lens. The fact is that The People’s Joker is not in competition with Warner Bros. It is, in fact, adding to the mythos of Batman and the Joker, exploring new ways to interact with culture, and critiquing the original. “Companies want to say that ‘we invested in this brand, therefore no one else should ever be able to benefit from it’,” Rosenblatt said, “Which is not how the law works and not how the world should work.”
Give The People’s Joker back to the people. Give it to us. We made Batman popular! We made the Joker into a cultural icon. Why shouldn’t we be able to access it, to re-make it, to re-create it? If big publishers and producers are so afraid of what people are going to do with their work, where does that fear lie? Is it simply protecting their investment? Or is it concern with “brand strength,” a horrible phrase that makes my skin crawl just typing it out? I can guarantee you that I will not confuse The People’s Joker and Todd Phillips’ Joker, and I doubt that anyone watching Drew’s work would assume it was made by Warner Bros. “I don’t even think they’re trying to protect their brand,” Rosenblatt explained. “I don’t think they’re trying to protect themselves from competition. Because I don’t think these things hurt their brand and I don’t think these things compete. I think they’re trying to do is establish the position of, this is mine, and you can’t have it.”
The art that individuals make will almost always be more exciting and challenging than whatever a big corporation might approve for consumption. The punk scene isn’t dead, and the world is open for reinterpretation. There’s no reason to hold images, thoughts, or even names hostage behind copyright, excluding individual artists from the conversation.
Remake art in your image! Transform the ideologues of thought! Destroy the extended artificial, gatekeeping hierarchy of creativity that only benefits the corporation! Make art, however and whenever and why-ever you like! Free The People’s Joker!
Want more Gizmodo news? Check out when to expect the latest Marvel and Star Wars releases, what’s next for the DC Universe on film and TV, and everything you need to know about House of the Dragon and Lord of the Rings: The Rings of Power.
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