September 29, 2003
More thinking out loud:
When I brought up derivative works the other day, I mentioned that Fisher’s proposal “may seem like a clean and simple way of eliminating the problems inherent in the derivatives right.” While that may be true, there is reason to question whether his plan is the best way of treating derivative works.
Consider the making of a derivative in the present legal regime. Say part of X’s decision to make a movie is based on the potential for revenue from video game, toy, book, and other derivatives. Say part of Y’s decision to license the right to make a video game based on X’s movie is that no one else will be able to make such a video game. (The assumption about Y is a bit more plausible than the assumption about X, but let’s work with both for now.)
Now consider how the decision making might change in Fisher’s scenario: X’s incentive, initially, looks somewhat the same; X won’t be able to control the licensing, but X will still receive revenue from derivative uses. Y’s situtation, however, changes. Y now will have to compete with many video games. While Y can still invest more to make the best video game, his potential for revenue will be challenged by other derivative makers. And now, looking backwards, X’s situation does change. If many people are like Y and decide not to invest in a derivative because of increased competition, then X’s revenue will greatly decrease. Moreover, even if some people hang around to make derivatives, if the people willing to make high quality derivatives are driven out, then X’s revenue will decrease.
To consider it in another context, think of the argument made against widespread proliferation of fan fiction. If everyone can make sequels of the newest best seller, then people will become so tired of the story that the original author will have no incentive to continue writing her stories and no movie producer will want to license it for production. ([added:] Given the low-level distribution of most fan fiction writers, this argument is generally quite overstated. But, if you consider commercial, large scale derivative uses, then the argument makes a bit more sense.)
I don’t know enough to state conclusively if these arguments are good or bad (or even plausible). If we’re trying to remunerate artists fairly for what they contribute to future work, then Fisher’s proposal seems to do the job well. But I wonder how the incentives and production of derivatives would change.
Again, I’m doing this in the context of trying to think about the a better derivative works policy in general. And I guess what I’m talking about here begs the bigger question: what justifies the derivatives right? Let’s start with this reading list, and go from there.