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Source link: http://archive.mises.org/9285/animation-is-built-on-plagiarism/

“Animation is Built On Plagiarism…”

January 22, 2009 by

Jeffrey Tucker writes below regarding intellectual property-dominated markets,

Authors, artists, and inventors sit and brood about the need to keep their wares to themselves, and hunt out anyone who would dare “steal” their idea. In the successful cases, they can end up rewarding themselves but at the expense of social development.

In the far more prevalent unsuccessful cases, the obsession with being ripped off leads to brooding, resentment, and disgruntlement that the world has failed to provide them a living. A sector consisting of nothing but people like this–with an attitude encouraged in law–is stagnant. By way of illustration, compare the imitation-oriented jazz and rock sectors with the IP-obsessed area of serious classical music!

Consider, for example, the cases or Lori Madrid and Stanley Miller. Both filed lawsuits against The Walt Disney Company and Pixar Animation Studios over the latter’s 2001 film, Monsters, Inc. Author David A. Price described the cases in his 2008 book, The Pixar Touch, which contains many interesting anecdotes about the effect of IP on the creative enterprise.Madrid’s lawsuit, according to Price, revolved around a short story she’d written in 1999, “There’s a Boy in My Closet,” and submitted to various publishers. When Madrid didn’t hear back from any of the publishers, she turned the story into a musical that was produced in her native Wyoming. Price wrote that friends of Madrid, after seeing the musical, pointed out the basic idea of her story – the monster hiding in the closet was more afraid of the human child then vice versa – was also the basis for Monsters, Inc., which Disney was then advertising in advance of a fall release:

[Madrid's friends] told her that the film was plainly based on her story. Pixar must have gotten a hold of your work, they told her earnestly. Pixar stole from you.

Madrid saw the trailer herself during Labor Day weekend and reached the same conclusion. “I realized I was looking up at a movie screen and seeing my manuscript in living color,” she recalled later. “Except that it didn’t have my name on it. The closet, the child, the monster, the expressions, the scene – the total feel of the story was just like my creation.”

She was distressed. Who would ever produce her musical now? Everyone would assume she had copied from the film.

Madrid’s lawsuit relied heavily on her own imagination. She believed that one of the publishers that rejected her 1999 manuscript had passed the story on to Pixar in exchange for receiving a book deal with the studio. There was no evidence of this, but as Price wrote, Madrid’s lawyers could still deploy “the doomsday weapon of copyright litigation” – an injunction against releasing the film at all. One day before the scheduled release date, a federal judge held a hearing on the injunction request, which was denied. The judge noted, among other reasons, that his law clerk “has a couple of nieces, two and seven, that would be very upset if I issued this injunction . . . I suspect there are a lot of little kids all over the country that would regard me as the worst kind of judicial monster if I were to do it.”

The lawsuit itself was later dismissed by the same judge, who said both the film and Madrid’s story relied on common themes and ideas not protectable by copyright: “All of these ideas are standard and indispensable with these characters, and with children’s stories in general. To say that such things may be protected by copyright laws would . . . certainly be chilling to the free flow of children’s stories, and could mean that many a child’s bad dream would be a copyright infringement.”

A year after Monsters, Inc. was released, a second lawsuit was filed, this time by Stanley Miller, a longtime professional artist and illustrator. Miler said Pixar infringed upon a sample script and artwork he’d developed in 1997 that involved two stock “monster” characters that he’d developed in the 1960s. Some Pixar artists were apparently familiar with Miller’s earlier artwork, but as Price wrote, such influence and emulation is commonplace in animation:

Anyone making an animated film about monsters would likely be influenced by other artists whose work they admired and who had created interesting depictions of monsters. In art and drama, as in other endeavors, rarely was there anything completely new under the sun. Shakespeare famously drew from the Greek writer Plutarch for his Roman tragedies.

At Pixar in particular, looking at the approaches of other artists was part of the culture that [Pixar Chief Creative Officer John] Lasseter had instilled from the beginning. Both before and after Monsters, Inc., Pixar’s films showed clear cinematic and literary influences – some large, some small – to which few would object. Lasseter often spoke of [Japanese animation director] Hayao Miyazaki’s influence on his work. The Toy Story team drew inspiration from popular American buddy films. Toy Story [directed by Lasseter] shared its fundamental premise (the toys come alive when no one is looking) and some plot points (a toy that doesn’t know it’s a toy arrives as a birthday present, goes missing, and must be rescued) with 1977′s Raggedy Ann and Andy, a film directed by Lasseter’s onetime boss Richard Williams.

“Art was never created in a vacuum chamber,” Price wrote, but IP law requires clear delineations between “fair use” and “misappropriation.” Defining the line proved somewhat silly. Disney and Pixar called an expert witness – an English literature professor who “was hired to research and compose a report on one eyed monsters throughout human history.” Miller’s attorney called his own expert, an animation professor, who claimed that the particular one-eyed monster in dispute had a “design and personality” that “must not only have been inspired by, but must have been directly copied from” one of Miller’s designs. The case was ultimately settled under undisclosed terms.

Coincidentally – or perhaps it was ex ante infringement of Price’s book – a 1996 episode of “The Simpsons” depicted a similar case of animation-copyrights-run-amok. In “The Day the Violence Died,” a street bum sues the producers of the “Itchy & Scratchy” cartoon series (which emulates “Tom & Jerry”), claiming that he invented the character of “Itchy,” a sociopathic mouse. The bum produced a 1919 film with the character, but a rival animator lifted Itchy for his own 1928 cartoon, “Steamboat Itchy” (which is almost a shot-for-shot emulation of the Disney cartoon, “Steamboat Willie”). The rival animator became rich and famous – while the bum, of course, became a bum.

The Springfield courts ruled in favor of the bum and awarded him $800 billion in damages – which the judge acknowledged “will probably come down a bit on appeal” – putting the Itchy & Scratchy studio out of business. The studio later reopened, however, after discovering the U.S. Postal Service’s “Mr. ZIP” character “must not only have been inspired by, but must have been directly copied from” a long-forgotten stick-figure character owned by Itchy & Scratchy called “Manic Mailman”. The Postal Service gave I&S “a huge cash settlement,” allowing them to resume producing cartoons (while paying even more royalties to the bum.)

As fictional I&S studio boss Roger Meyers, Jr., acknowledged during the copyright infringement trial, “animation is built on plagiarism,” echoing Price’s explanation of Pixar’s creative process: “If it weren’t for someone plagiarizing the Honeymooners, we wouldn’t have the Flintstones. If someone hadn’t ripped off Sgt. Bilko, there’d be no Top Cat. Huckleberry Hound, Chief Wiggum, Yogi Bear? Hah! Andy Griffith, Edward G. Robinson, Art Carney! Your honor, you take away our right to steal ideas, where are they gonna come from?”

Ideas, of course, cannot be stolen. They can only be emulated, and as Jeffrey Tucker wrote, “emulation is unavoidable. There is no such thing as absolute originality. Everything in a growing and health society is an elaboration on something else that already exists.”

{ 16 comments }

Sean T. McBeth January 22, 2009 at 8:06 pm

Did you really just use the contrived events of a fictional story to try to prove your point about real-life events?

S.M. Oliva January 22, 2009 at 8:55 pm

“Did you really just use the contrived events of a fictional story to try to prove your point about real-life events?”

Yes I did. Hey, if Objectivists can do it…

scineram January 23, 2009 at 1:58 am

Silas in 10, 9, 8…

kbutik in 5, 4 …

Inquisitor January 23, 2009 at 7:23 am

It is still irritating when one comes up with a story and it is “emulated” without giving acknowledgement to the originator. I agree IP is not a genuine form of property, but I’m hardly going to praise someone taking ideas I have come up with and then, no less, claiming them to be theirs…

Marcelo January 23, 2009 at 7:46 am

Well, that would fall under fraud if that ever happens.

ktibuk January 23, 2009 at 7:50 am

So the moral point of all this is, that there were disputes over property and it was handled in court. My, my, how shocking is that.

Don’t you just wish there was no property thus no disputes? Everyone would be so happy, just like little blue smurfs. Everyone would work when he wants, play piano when he wants. No property and no oppression. Happy people loving each other.

Oh wait…

Matthew January 23, 2009 at 9:21 am

Having observed the stagnant and repetetive “debate” between anti-IP people and the pro-IP people (kitbuk, et al.), I’m wondering if the pro-IP people can clarify for me one aspect of their position.

Assume that there are two distinct and geographically separated cultures, ones that will never interact with one another in all likelihood. Something like Australian Aboriginals and a tribe deep in the heart of Africa. If a person in each of the two cultures both independently develops the same idea, an idea that meets whatever criteria necessary to be deemed property in your (natural law I presume) conception of IP, has there been a property rights violation? If so, why and by whom?

Please feel free to fill in arbitrary details beyond that if necessary to make your argument.

ktibuk January 23, 2009 at 10:10 am

Matthew,

I never denied the possibility of “independent discovery”. Also I contend that who ever accuses another of copying his work bears the burden of proof in a court of law. So “first come first register” is not a something I endorse. Also I am strongly against patent laws and patent offices.

So there is no violation in your example.

But what you are giving the example of is not the poster child of IP theory. It is a bad law used by IP socialists to try to socialize all IP.

I am saying a creation is the creators. Go and create anything yourself but don’t copy my work. I may not be able to stop everyone, even enforce my right on property all the time but don’t come here and argue that you are entitled to my work in theory.

bob January 23, 2009 at 11:01 am

I have consistently put myself in the middle of this debate. Anyone who thinks currency copyright and patent conditions as currently implemented are in the best public interest are nuts. On the other hand, pushing IP creators to rely on basically gifts from those who use or enjoy their IP will be the embodiment of a “free rider problem”, which will as usual not be a “problem” so to speak; however, it will result in far less revenue for IP creators, who are not altogether interested in producing IP for their own enjoyment of the IP.

To answer Matthew’s question, I believe any form of legal IP protection (which should NOT include current definitions of copyright and esp patents) should be limited to things that a jury feels beyond a reasonable doubt MUST have been directly copied. For example, it is quite plausible that two different cultures produce similar inventions, such as eating utensils, transportation devices, clothing designs, etc. These should be exempt from IP law.

It is not plausible, however, for two different sources to create a software program with an identical MD5 checksum, or great swaths of identical machine code (or even moreso applied to source code). It is not plausible for two musicians to create songs with the same melodies, harmonies, and rhythms (beyond EXTREMELY simple songs such as children’s or exercises in music theory).

Yet, I don’t advocate IP law for restricting the market. I simply believe any productions clearly directly copied from some legally protected IP owe a portion of income to the original creator, with the size of the portion based on the amount of time that has expired since the work was first published. This means I don’t need to license works based upon the original author’s will. In other words, if I want to use Mickey Mouse in a porno, I don’t need Disney’s permission…and given the length of time he’s been around, I probably wouldn’t need to pay a royalty either.

Most importantly, this shouldn’t be handled by bureaucrats and judges, but by juries.

bob January 23, 2009 at 11:03 am

sorry for double post – i meant “currently”, not “currency” in the 2nd sentence of my prior post.

Matthew January 23, 2009 at 11:26 am

ktibuk,

Thanks. I’m beginning to sense that, as with many disagreements between people who are able to think critically, our apparent disagreeement is a matter of insufficiently precise definitions.

When I used to be in favor of minimalist government (before discovering Mises et al.), I was opposed to IP based on the typical utilitarian arguments put forward by anti-IP people. I thought it better to allow private institutions to create contract-based equivalents of IP governing bodies, but saw nothing reminiscent of natural IP rights as a factor.

After reading Rothbard and eventually becoming a proponent of a stateless society on the basis of its being the most just (according to a value system that believes human life and prosperity to be good things), I realized that I needed to re-examine the IP issue on the basis of natural law.

In a stateless society, it is up to each “justice provider” to discover and interpret natural law. With free market competition and no artificial monopolies, they would be most likely to do the best job discovering said natural law, so it goes. In addition to interpreting aspects of natural law necessary to resolve disputes that arise inter-justice provider, it seems to me a near certainty that every justice provider would also develop contractual provisions prohibiting certain behaviors that are not illegal per se, but sufficiently immoral that its customers demand it (e.g. a prohibition on drunk driving).

It occurred to me that IP-type regulations would probably be another example of regulations that people would voluntarily submit to in order to subscribe to a quality justice provider.

Assuming my above scenario is valid, the conclusion to be drawn is that what we’re arguing over (assuming we’re all natural law anarcho-capitalists) is not so much how to set up society to properly administer IP rights (or a synthetically created equivalent). The question is one of a purely philosophical, legal theoretical nature. That is, does IP stand on the same footing as one’s property rights over an apple he harvested from a tree he homesteaded? You say yes. Your so-called IP socialists say no.

The answer you gave to my question is consistent with my point of view. I think I would have thrown up my hands if you had said that it would indeed be a crime.

I need to let your answer sink in a little bit to try to understand, and hopefully define more precisely your view of IP. You’re against patent as an IP right…we’re in complete agreement there.

I take it you would be opposed to my printing up sheet music for Beethoven’s 5th and selling it because the sequence of notes was his creation? My intuition says that there could be a natural law basis buried somewhere in that position, but I think it needs a lot of polishing. Have you rigorously defined your views elsewhere, where I could read them?

ktibuk January 23, 2009 at 12:38 pm

Matthew,

I have written a lot on this blog, of course in the comments section but I haven’t written a whole manifesto on the issue. Unfortunately I don’t have time to write a scholarly essay.

But mainly my IP position depends on my property rights position.

I wholeheartedly believe in the Lockean/Rothbardian property rights theory and as an atheist anarchist there is nothing else I find more sacred than private property rights.

I believe first and foremost everyone owns his own body (and soul) and whatever he creates (rearranges with his scarce time in this universe) he owns. When it comes to homesteading scarce nature given resources there is also a necessary “first comer” principle but when it comes to IP this principle becomes void since we all know there is possibility of independent discovery especially when it comes to simple ideas.

Property is a part of reality and natural law. It is not a man designed law with a goal of a better society. There is no need for rivalry for something to be property. Robinson Crusoe owns the fish he catches even before Friday comes to the island. Fridays arrival only makes protection of property and enforcement of property rights necessary.

Property can be protected in many ways, and the owner of the property should bear the cost. But in this world we are forced to live under protection rackets called states thus protection of all property is socialized.

When it comes to IP, it is mostly protected through the tangible goods it is embedded in and contracts. Bear in mind, contracts don make IP property. IP is property prior to any contract. Contracts are only tools.

When a creator rents you an IP on certain conditions you should honor that contract. Also third parties may be held liable, if they knew that IP was copyrighted. This is the main issue that is brought ip by IP socialists but they since they deny that IP is property this point is moot.

If A rented an apartment to B and they have a lease contract, and B forgets to lock and close the door and C who has never signed o contract gets in thrashes the apartment he is as liable as B who was negligent. This is because the property exists prior to any contract, and the action is not only a breach of contract but aggression against property.

I have time for this much for now. If you have any questions I would try to answer when I find the time.

Matthew January 23, 2009 at 1:19 pm

ktibuk,

Thanks again for your cogent response. I believe I see the essence of your argument for IP. I confess that the entire theory of natural law is still a bit wishy washy for me–I need to read more extensively on the subject–but I see the appeal and logic of IP as the right of a creator. I suspect this goes deep to the root of natural law.

In most of the arguments I’ve witnessed your having on the comment boards, I don’t think that your opponents fully comprehend your position. I’m not trying to be insulting or incendiary here, but I would attribute that to your terse, often sarcastic posts and your opponents’ lack of curiosity to figure out what you mean.

I’ll give some more thought to your position, and I’m sure I’ll run into you again on the blog.

Susie January 25, 2009 at 5:04 pm

Another good piece from S.M.Oliva. Kudos. I learned a lot, and the piece made me think.

In depth plagiarism checking service May 9, 2009 at 1:45 am

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Franklin May 9, 2009 at 10:03 am

Funny, though, how many lawyers are on the Pixar dole, Sony as well, Dreamworks, Lucasfilm, the latter most famous for trying to sue _Battlestar Galactica_.
These companies ought to be studied less for their contributions to cinema, and more for their ability to ruthlessly destroy their competitors.

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