As you may know, Jan — the fan-animator responsible for “Button’s Adventures” and the PMV “Don’t Mine at Night”, among others — has received a Cease & Desist notice from Hasbro’s lawyers. He’s since removed all works from his Youtube channel. Those works have doubtless already been reuploaded to various websites and redistributed in torrent form, but ShadyVox (Button’s VA) has confirmed that they won’t be making any more pony-related animations as a result.
First of all, let’s establish something; Jan & Co. are innocent victims here. Emphasis on innocent. In fact, I’ll go further than that; they’re being punished for doing something actively good.
I shouldn’t have to establish that, but I suspect that I actually need to. There seems to be a sense among certain people that Jan and his collaborators are somehow culpable here. That however high-quality and well-done their work is, it’s still somehow at least a little bit wrong, because they made it using “stolen” characters.
I call bullshit. Yes, it’s true, Hasbro do have the legal ability to stop JanAnimations from making art using Sweetie Belle and Button Mash. But they shouldn’t have that ability. Why in the world should they? Because they created them (and by “they”, we really mean “a few of their employees”)? Why the hell should that entitle them to say what others can and can’t do with these characters? Why should that entitle them to tell other people “stop making your art”? Or “stop sharing your art”? If someone writes a song, should they be able to say that only certain people can sing it? If someone publishes a book, should they be able to stop people from developing the ideas in it? I have a hard time even addressing this attitude, because it is difficult for me to conceive of a coherent, sane argument that could support it.
Furthermore, the idea that building on the art of another is inappropriate is a pretty new — and pretty foolish — idea. Iteration, modification, and development have always been major components of human creativity, since the days we were telling stories around fires in caves. William Motherfucking Shakespeare based most of his plays on already-existing works. This doesn’t at all change the fact that he did new, admirable, and important things with them, and we shouldn’t hold his “unoriginality” against him. Hamlet is not a “ripoff” of the Danish myth upon which it’s based.
JanAnimations put in a ton of work to make high-quality, entertaining artwork. If that is against the law, then the law is wrong, and it needs to change.
In any discussion like this, the issue of piracy will come up. But this is clearly not even close to piracy. Piracy is uploading a work for free so people can download it and watch it without giving the creator revenue. But by any reasonable standard, Jan, not Hasbro, is the creator of these works. He has put in a huge amount of time, skill, and effort to create these. Hasbro’s contribution is only the effort of creating Sweetie Belle and Button Mash (and really, only Button’s design). That clearly doesn’t make them the creators of the work. By that reasoning, the ancient Greeks are the creators of FiM, because FiM has pegasi in it. That is just dumb. And if Jan, as the creator, is willing to make these works available for free, that should be his right.
And yes (because many of you are probably thinking it), this does mean that I think Hasbro should have no legal power to prevent people from making Rule 34 of their characters. To paraphrase Voltaire, “I may find your fetish disgusting, but I will die for your right to fap to it.” But more on that in a second.
Okay, so we’ve established that Jan & Co. have done nothing wrong, regardless of whether they’ve done anything illegal. So that probably means that Hasbro are wrong here, right?
Well, not necessarily. At least, not as much as you might think.
I’ve criticized Hasbro’s distribution policies in the past, but I will say this for them; in terms of copyright enforcement, they are among the more reasonable companies of their size. They have tended to be willing to turn a blind eye to fanworks, and for this they deserve some credit. But the idiocy that is modern intellectual property law puts them in a difficult position.
Many of us are aware that, due to certain features of trademark law, it’s possible that Hasbro can lose their trademark to these characters if they don’t enforce it (despite popular misconception, this doesn’t apply to copyright law). That would be a serious economic penalty, and to avoid it, they have to have at least a few takedown notices and C&D’s on-file that they can show a judge.
But there’s another way in which the law punishes them for not taking down fan-works, and it’s more subtle. Here’s an excerpt from the email sent to Jan by Hasbro’s lawyers:
Your copying of the MY LITTLE PONY characters and use of their distinctive character names infringes Hasbro’s intellectual property rights and violates the copyright laws…by creating a likelihood of dilution and of confusion with respect to Hasbro’s authorization or sponsorship of or association with your animated series. (Emphasis mine).
In other words, they’re concerned that someone would mistake Jan’s work for offical work from Hasbro.
That sounds like a bullshit excuse, and it kind of is, but there’s some truth to it. Here’s the thing; as long as Hasbro has the power to stop a fan-work, their not doing so indicates a certain degree of approval — at least in the public eye. And as anyone who has browsed Derpibooru with the filters off knows, there are some fan-works that Hasbro would prefer not to be associated with.
Like I said, Hasbro should not have the power to decide what fan-works should and shouldn’t be made. But equally importantly, they shouldn’t have the responsibility to decide what fan-works should and shouldn’t be made. JanAnimations should not be their problem. Hasbro should not have to waste their time and money going after fanart. They should not have to choose between killing a very well-made project and risking their intellectual property or public image. They should have the option to say “we have no opinion on this fan-creation”. But as the law is now constructed, Jan is their problem, they do have to waste their time and money, they do have to make that decision, and they don’t have that option. And that is one of many, many reasons why modern IP law needs to change at a fundamental level (I know Lawrence Lessig has made a similar point, but damn if I can remember which book it was in).
So, the next question, of course, is “how should IP law change?“. If the current system is so broken, what should exist instead to reward innovation and ensure that content creators can make money off their work? That’s a difficult question, and I’m no lawyer, but here’s a basic idea I have:
Remove the ability of IP holders to stop others from making derivative works. Remove the ability to stop others from making money off their copyrighted material. But require that the copyright holder receive a cut of any revenue that is made from derivative works. So in this scenario, so long as Jan is putting his stuff on Youtube for free, Hasbro can’t touch him (and thus is under no obligation to). If Jan starts making money off his animations, Hasbro still can’t stop him, but they have the right to take a cut of his profits. And if Jan (or anyone) starts making material that Hasbro doesn’t like, they can refuse to accept their cut — but that’s the only thing they can do.
This might seem weird or infeasible, but it’s clearly not, because we have this system in place right now — for music. This is the exact way that royalties from cover songs are handled — so long as a song is published, the original composer has no means to stop someone else from covering it, so long as they receive a share of the royalties (in the U.S., anyway). This is an exception to general rules of copyright, mainly because it was developed in the days before copyright law ran completely amok.
That might be the best solution, or it might not. But it’s clear that we need to change something. Of course, any sort of change is going to meet with resistance from some of the less enlightened corporations who hold valuable copyrights. But changing public opinion will be a big step. So the next time you hear anyone claiming that modern copyright law isn’t all that bad, remember this, and remember that we have some serious problems to fix in that regard.
And if you’ve got money, maybe donate to the EFF or sign up for their mailing list. They do a lot of work against this bullshit.