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I think it’s ridiculous to infringe on Joker’s copyright and I’m tired of pretending it’s not.

There’s a new Joker movie coming out, but you might not get a chance to see it because of copyright infringement.

I’m not talking Joker: Folie à Deux, Officially sanctioned sequel to the Todd Phillips film Joker. I am speaking People’s Joker, Due to “rights issues”, the crowd-funded Toronto International Film Festival was pulled at the last minute. The People’s Joker is (as far as I can tell) a very loose retelling of the Batman villain’s origin story, reinterpreting the Joker as a trans woman trying to break into the mob-like world of Gotham’s stand-up comedy scene. Its trailer described it as an “illegal comic book movie,” but its creators defended it vehemently, to the point of giving full-screen credit (apparently) to their lawyer, deeming it an unofficial but legitimate parody of DC’s original character.

I don’t know if there is The People’s Joker Good movie — thanks to its cancellation, my colleague Andrew Webster couldn’t catch it at TIFF. The piece was apparently designed to thumb its nose at DC’s copyright, and DC parent company Warner Bros. didn’t say whether or not TIFF had ordered the shows to be canceled — it’s possible the festival was shut down, or maybe Drew did it himself. Despite all that, one thing is abundantly clear: Outside of a small number of corporate behemoths, virtually no one will benefit from the shutdown. People’s Joker – Not the filmmakers, not the people, and not the people who created Gotham City in the first place.

Pop culture is a shared language, and it’s only natural that people build on it

Writer-director Vera Drew said The People’s Joker Partly to test contemporary reality: Beloved fictional universes are shared modern mythology, and people derive meaning from them the way artists once reinterpreted Greek mythology or painted biblical figures. As Drew says, “The purpose of mythology is to learn about the human experience and grow and chart your progress — the hero’s journey and all that stuff — let’s actually do that seriously with these characters.”

I won’t touch on the “modern mythology” argument (unless you’re a comics legend like Grant Morrison, comparing a criminal clown to an ancient deity usually seems pretentious), but popular culture is definitely a shared language. People use it to make sense of events in their lives, learn about themselves, and communicate new ideas to other people. Drew, for example, describes watching a kiss Batman Forever And she wanted the film to have a female lead, not a male.

Building on the stories and characters that helped make people who they are is as natural as using a newly coined word in your own phrase. This is especially true as entire generations have shared the experience of growing up with these characters. (The Joker is 82 years old, which is longer than most of us have been on this earth.) The media outlets encourage it — but on their terms, backed by legal power.

To understand these terms, we need to talk about a fight much older than superhero comics: the fight over what’s copyrighted. It’s not the most obvious line to draw from a movie about a supervillain doing stand-up comedy, but it’s an important one. Copyright isn’t just about laws and disclaimers! It’s about what culture should be.

In his book As common as the wind, author Lewis Hyde describes two basic ways of looking at culture. The first view says that it should work like private land. When an artist makes something, it comes with basic, almost unlimited ownership rights. The owner can profit from it and control who has access to it by preventing people from using it in ways they don’t like. Any restrictions should be narrow and distasteful exceptions for general purposes, like not being able to dump toxic waste in your backyard. And breaking those rules is easy, theft.

There are two ways to look at art: private possession or public benefit

A second view is that culture is (as the book’s title suggests) a common good. Artists aren’t working in a vacuum, and art improves when people can fearlessly respond to one another’s ideas instead of asking for permission. It is useful for artists to have a temporary period in which they can maintain control over their work, as it supports them financially and encourages them to do more. But the ultimate goal is for the art to go into the public domain and for it to be part of the conversation, with people repurposing it to create their own work.

At first glance, copyright is a natural law that protects art from the people who experience it. From the second, it’s a tool meant to improve the experience – and if it isn’t it needs to be fixed.

Modern US copyright law is the type with those hateful, narrow exceptions. The works have been slowly moving into the public domain, but finally ended in 2019 after a 20-year freeze. (When news comes There are In the public domain, they’re still sandbagging with weird suits, confused about whether or not the public domain can contain Sherlock Holmes sentiments.) There is an exception for fair use of copyrighted works, which allows people to transform or comment on it. work But its design requires artists to sue on a case-by-case basis under the weight of four nebulous legal pillars.

This uncertainty has created widely accepted rules of thumb, such as the idea that fair use only protects non-commercial art — a system designed to keep artists paid so many feel they can only work. for free. That leaves projects like uncertainty The People’s Joker Awaiting an eviction notice and a potential legal battle. In other cases, it can cause intermediary platforms to overstep their mark, preferring to shut down fair work rather than risk infringement.

Modern copyright law is a world of nasty, narrow exceptions

You can still do good, interesting work in this system. Many artists have taken refuge in fair use exceptions, particularly allowances for parody and commentary. Some copyright holders expressly permit fan works or refrain from attacking them as non-commercial fan fiction. As we’ve seen with the Organization for Transformative Works, the operators of the Archive of Our Own, and legal defense projects for fan creators, rights holders sometimes back down after receiving pushback. But this creative work is being done Although Not because of copyright laws.

In cases like The People’s Joker, who exactly is the system serving? It’s not the original creators of the classic comic book characters, many of whom are dead. Many writers and artists sold their rights to Marvel and DC on a work-for-hire basis, so despite decades of lawsuits, surviving family members often never see the money. (It’s also debatable how many generations should benefit from an artist’s work.) And new generations of artists are no longer free to build on the stories they grew up with — works that remain in the public domain after rights-holding companies like Disney establish their empires. Snow White.

A common justification is that copyright helps stop hateful, offensive spins on beloved stories. (This is reflected in some new attempts at unusual copyright licenses, such as Andreessen Horowitz’s crypto copyright system, which allows creators to revoke a license if the art is used for hate speech.) In the long run, however, this only means additional copyright censorship. steps This suggests that creators who have a personal stake in culture should be granted an almost perpetual license to control how people engage with it long after they are gone. If you think copyright stops artists from seeing terrible adaptations of their work, Alan Moore wants to have a word with you.

I don’t have a perfect solution to this problem and it’s complicated. I’m not sure how long the term copyright will last to balance the welfare of artists with the cultural commons. I’m not sure what a clearer, more generous fair use system would entail. (Hyde’s book has some compelling proposals.) But if a law meant to protect artists leaves queer independent films in the lurch to protect a corporate brand, something is terribly wrong.

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