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“I’ve got a bad feeling about this…”

Today it was announced that Disney is buying Lucas Arts for $4.05 billion, which transfers all Star Wars rights to Disney. The move will fortify the Disney/Stars Wars brand through copyright, and it will undoubtedly result in several more abominable Star Wars movie sequels.

Disney has a history of buying iconic brands and locking up the copyright. The company acquired Marvel back in 2009, and since then Disney has released an increasing number of Marvel movies and merchandise. Between the purchase and 2015, there are going to be at least 17 major Marvel movies, which is almost as many as the entire first decade of the millennium, one of the most recent movies grossing $1.5 billion worldwide, and many of which are remakes or sequels.

Disney’s agressive elaboration of the Marvel brand will likely fortify its hold on the copyrights for generations to come. Although Marvel started creating comics in 1939, Disney’s reworking of the story lines and character profiles will allow them to claim copyright for even longer under current copyright law to some extent if they are able to prove unique derivative work. To put it simply, as long as a corporation continues to develop and recreate its owned copyright, it can claim ownership to a unique adaptation of that work. No wonder we have seen an influx of comic book movies in the past decade (see chapter 17 of Tim Wu’s “The Master Switch”). Disney/Marvel need to renew a piece of that copyright claim before it runs out.

George Lucas likes this, and he has bought into the idea of preserving the Star Wars image as much as possible. For him, it’s not about making more money out of Star Wars (he’s already made enough for several lifetimes). It’s about making sure Star Wars remains true to its origins: George Lucas and the image of George Lucas. Check out his interview for his reasoning for selling the company to Disney (especially 2:27):

He says, “I’m doing this so the films will have a longer life. More fans and people can enjoy them in the future.” Kathleen Kennedy, the Co-Chariman of Lucas Film, adds, “The main thing is to protect these characters and to make sure that they continue to live in the way [Lucas] created them.”

In doing so, they will prevent the remix of Star Wars for at least the next hundred years (probably more). Disney has already announced that it will be making three new Star Wars movies in the next several years, and it plans to release more after that, one every “2 or 3 years”. As Joe Mullin from arstechnica.com concludes, we can expect many more stories and characters that will be protected via copyright, thus renewing the copyright into the unforeseeable future.

The copyright for the Star Wars franchise is already secure beyond the lifespan of its creator, George Lucas. Star Wars was released in 1977, which give Lucas Arts control until 2072, 95 years after its creation. This is due to the increased length of the copyright term law over the past couple hundred years. Check out the change in this graph:

This is plenty incentive for an artist to create great work. But this isn’t about artists, it’s about the institutions that claim the copyright (e.g. Lucas Arts, Disney), and their capacity to use these rights to generate more ‘culture’. Indeed, the lobbying of corporations for stricter copyright law has paid off (at least for the corporations), and ironically, Disney has been a major proponent of longer copyright terms, even though its entire collection of iconic movies (Snow White, Alice In Wonderland, etc.) are based on works that had been out of copyright when Disney was just starting out. Now Disney’s efforts have made it impossible for anyone in the next several generations to do the same with its own work.

For a brief history of copyright, check out the video below. Funny enough, it is explained through the eyes of the Star Wars copyright, and Disney is used as a case study for how institutions are milking the copyright system. Props to C. G. P. Grey for creating this video over a year before the Lucas Arts purchase:

Lucas Arts has fiercely defended its claim to Star Wars, usually successfully (but not always). When the company released some online tools in 2007 to help fans remix Star Wars content, copyright activist Lawrence Lessig called the move “digital sharecropping”, making reference to the fact that none of the remixers actually had any right to any of their own work.

Is this good for culture overall? Well, if the Star Wars prequel trilogy and the Marvel revival work as a predictor, we are in for a sad Star Wars future.

Editor’s note: In response to article comments, the author would like to clarify that the article’s main concern rests in derivative works. For this, a number of edits were made post-publish. Reference to a WIPO article was removed, as it was noted as off target and confusing. In it’s place, the concept of derivative works were more clearly referenced and cited, and their capacity to be copyrighted. Tim Wu’s “The Master Switch” was referenced for the phenomenon of increased elaboration of current copyrighted brands. Also, it was originally stated that ClubJade.net created the copyright video featured above, but they pointed out that it was in fact C. G. P. Grey.

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21 thoughts on “Lucas Arts Purchase Fortifies Star Wars Copyright For Disney

  1. I’m pretty sure that you’re extremely off-base here. One of the main backers of the Sonny Bono Copyright Term Extension Act of 1998 was none other than Disney itself. They were afraid that they’d lose the copyright to Steamboat Willie, and thus, exclusive right to the iconic character of Mickey Mouse. (This is actually discussed extensively through Larry Lessig’s landmark book, ‘Free Culture’.) If the character could be protected and copyright renewed simply by making more films featuring Mickey, they probably would have pushed for the CTEA anyway, but I suspect it wouldn’t have been as urgent an endeavor.
    I don’t think anything is ‘fortified’ per se by this purchase, or indeed that anything has changed at all. ‘Star Wars’, the 1977 film, will eventually go out of copyright, a long, long time from now. The rest of the IP that’s been built on it won’t, yes, but the characters of Luke Skywalker, Darth Vader, Obi-Wan Kenobi, Princess Leia, Han Solo, R2-D2, and C-3PO, as well as the original story, will all revert to the public domain whatever new IP is created, and that would have been true regardless of whether Lucasfilm were independent or a subsidiary of a larger empire. The link to WIPO about Marvel that’s provided above does not bolster this case one iota.

    As for whether the sequels will be abominable…I think that there is actually some hope now that they won’t be. Lucas’ best Star Wars films were the ones where he didn’t enjoy full creative control – the first two. In ‘Star Wars’, he had the studio breathing down his neck, stuff breaking left and right/new tech being invented on the fly that was constantly on the fritz, and strong personalities in his actors and producer, Gary Kurtz, and his wife, Marcia. In ‘Empire’, Lucas provided the story but was mostly hanging out with the ILM guys, letting Kurtz and Kershner run the show. They butted heads a lot and went overbudget, leading to Lucas’ retaking control with Jedi (Marquand was a pushover and Kazanjian not terribly independent either) and then the prequels, but in the meantime made what most people recognize was the best ‘Star Wars’ film. (I personally still think the original can’t be beat…try to hunt down Harmy’s Despecialized Edition 2.0; you’ll be amazed.)
    Now, Lucas will still be the second-largest shareholder at Disney, as well as creative consultant for any new Star Wars film, but if he went as far as to sell his baby, I think it’s a safe bet that he won’t be calling all the shots anymore. The story might still be his, but there’s a chance that the stilted dialogue won’t be there, and that the series may end up in the hands of a capable director. Disney’s releases have been hit-and-miss but they mostly haven’t screwed up Marvel (even if Iron Man 2 and Thor were underwhelming)…and they must have learned their lesson about giving one guy, even a Pixar guy, too much creative control, after the flop that was John Carter. That doesn’t mean they can’t screw it up, of course, but even if they do, I think it’s a safe bet that it won’t be screwed up in the same way the prequels were (except w/r/t having too many damn effects).

    I think there may be a legitimate concern for fan editors and fan-filmmakers because of just how much more litigious Disney is than Lucasfilm. There is a rich underground community of editors that don’t give a hoot about Lucasfilm’s aptly-named ‘digital sharecropping’ program; they have generally been left alone and are now panicking a bit. The other concern is that since Lucas will still be involved to some extent, and since he’s the second-largest shareholder, it’s still highly unlikely we’ll be seeing a home-video release of the original theatrical versions of the original trilogy any time soon…and more’s the pity.

    /rant

    • I think you bring up some fair points.

      First, you are right that we are assuming “bad” Star Wars remakes. Our assessment is entirely based on Lucas Arts and Disney past remakes and sequels, including the Star Wars prequel trilogy and the recent Marvel movies, which have been noted as corporate and uninspiring. We tend to agree with this general assessment, however it is not possible to tell what other horrible remakes might have happened if the rights were in the public domain. Although this article does not discus the benefits/drawback of long-term copyrights in the hands of corporations, this controversial discussion is well explained in the works of Larry Lessig, as you note, amongst others.

      You are also right that the copyright will eventually go out of copyright, but we are confident in our claim that Disney’s control of the brand will result in a longer copyright term for Star Wars. Of course, Disney does not have to act as it did with Marvel, but if history has any prediction, we can be sure they will act similarly. In fact, Disney has already announced a plethora of new movies and other media for Star Wars, much like it did with Marvel in 2009.

      On the comment about Disney impact on Sonny Bono Copyright Term Extension Act, we do not think that Disney had anything to loose from pushing that piece of legislation (indeed, it only had to gain), as you noted above. The revival/remake of a brand is a common occurrence in modern media, and the strategy is well described in Chapter 17 of Tim Wu’s book “The Master Switch”.

      • So your position is that ‘remakes’ can lock up characters, but you haven’t attempted to substantiate this beyond this reference to Tim Wu’s book. Otherwise I have no idea why you’re ‘confident’ that this is the case. Presupposing that Marvel’s films have been created mainly in order to strengthen their clams doesn’t hold much water. The WIPO article doesn’t make make that case for you either.
        Denying that that Disney’s push for the CTEA was based on fear of losing Mickey Mouse is simply incorrect. There’s a reason why it was nicknamed by Lessig ‘The Mickey Mouse Protection Act’. Now I’m sure that by creating more IP, it creates even more culture that is inaccessible to other artists, and thus would make any eventual riff off of Star Wars in the later part of this century kind of limited, but it wouldn’t prevent it altogether.
        Half the Disney catalog are remakes of public domain work (and they have tried, and failed, to shut down others from appropriating the same work – see litigation against GoodTimes Home Video among others). A remake of Cinderella will not all of sudden give Disney or Marvel more power over Cinderella, since it was in the public domain. If Star Wars eventually falls into the public domain, I don’t see how remakes prevent anyone from appropriating Star Wars. Trademark law might, I guess…
        But look, I haven’t read Wu’s book. If you can summarize his legal case, then we’d have something to talk about…

      • Again, fair points.

        The link to the WIPO article should be clearer. It is mainly a reference to the difficulty in understanding the difference between character and brand/unique artistic concept. For example, the term “Super Hero” in the place for all of the comic heroes.

        This was referenced with Tim Wu in mind (specifically pg. 221-32 in this edition), he notes that it is difficult when we can claim a copyright on a particular character (one example he gives is Wolverine). Indeed, when does a symbol like Darth Vader become copyrightable in itself? If the elaboration/remake of the original can create a spinoff that is (arguably) unique, copyrights can start to be claimed. Because Darth Vader is so closely related to Star Wars, reproducing anything Star Wars will likely also involve Darth Vader, which is still copyrighted. Thus, when we refer to the copyright being claimed for longer, it is under this idea/strategy.

        Disney is planning a large number of sequels and additions to Star Wars, as is noted in the interview with Lucas. Will they be enough to be claimed as unique, and if so, will Disney do so? Of course, any perdition of future action is speculative.

        On your comment about “remakes”, we try to be clear on “elaborations” and “reworking” of the story and characters as the primary focus.

      • “Our assessment is entirely based on Lucas Arts and Disney past remakes and sequels.”
        I don’t think ‘remakes’ of Star Wars are in the works right now. it’s you right to find the Marvel movies corporate, but most fans have been fine with them, except for the Fantastic Fours and Ang Lee’s Hulk, which was conceived before the current plan. I hate the prequels and especially the constant tinkering with the original films too, but you should delve a bit deeper as to why things haven’t worked out with them. Michael Kaminski’s ‘The Secret History of Star Wars’ lays out pretty well the evolution of the story over the years and makes part of the ‘art from adversity’ case; it can be found at amazon in ebook form and amazon and bn in paperback. If not, RedLetterMedia’s Star Wars prequel reviews make the case too. Lucas can be good if he is forced to relinquish control…look what Genndy Tartakovsky managed to do with it! If there were going to be Star Wars prequels, better that George remains an advisor than has complete control. Now, do I think the movie will be great? No, but that if they suck, they won’t suck the same way the prequels did. I see some hope here yet… (Sorry if I’ve been repeating myself).
        “however it is not possible to tell what other horrible remakes might have happened if the rights were in the public domain”
        I don’t think any of us were talking about that? Of course once control is gone there may be bad productions of Star Wars, just like there could be shoddily done productions of Shakespeare. In my mind that’s just the way the cookie crumbles, and anyway is not really a practical consideration right now.

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  7. “Because Darth Vader is so closely related to Star Wars, reproducing anything Star Wars will likely also involve Darth Vader, which is still copyrighted.”

    I understood that that’s what you were trying to say (and now, that that’s Wu’s contention as well). I am telling you that if this were true, then the hubbub over the CTEA would not have existed, and that if this were true, Disney would hold the copyright to the underlying public domain stories upon which many of their classics are based. Courts have ruled that they do *not*. Thus, if the copyrighted film upon which the sequels or remakes were based passes into the public domain, why wouldn’t the same logic apply to Disney vis-a-vis Star Wars? The subsequent films and all the other IP would still be their own, but if simply making a remake would net them the rights to al the original characters, then why would Disney have cared about Steamboat Willie so much?
    This story, about Steamboat Willie and the CTEA, is damn near unanimous. Here’s another example besides Lessig.
    http://writ.news.findlaw.com/commentary/20020305_sprigman.html
    So either they all got it wrong, Wu has an ingenious explanation, or Wu is actually talking about a different, but related, issue. You say Wu gives the example of Wolverine. The only reason I could come up for that character’s copyright to be in dispute would be thanks to work-for-hire and copyright reclamation clauses/termination rights issues, none of which are at all applicable to Star Wars. I’ll try to find the book at the library, but as of now, you have still not provided a summary of an adequate basis for your theory.
    Moreover, the idea that there is any dispute over when a ‘character’ can be copyrighted seems totally foreign to me. A character does not exist independent of its first representation, and once that goes, so goes one entity’s control over it. This is, again, a separate issue from reclamation rights.
    “The link to the WIPO article should be clearer. It is mainly a reference to the difficulty in understanding the difference between character and brand/unique artistic concept. For example, the term “Super Hero” in the place for all of the comic heroes.”
    That is a trademark issue though, not a copyright issue. I agree that it should have been made clearer, but I don’t think you recognized that upshot, since you linked to the WIPO article in the context of saying that ‘Disney’s reworking of the story lines and character profiles will allow them to claim copyright for even longer’.

    • Moreover, I have found the (rather ir)relevant section of Wu’s book. Most of it was talking about the benefits and tradeoffs of conglomerate ownership of media. Near the end of that discussion, the example of Wolverine show up…but itonly talks about how distinctive a character needs to be in order to be copyrighted – specifically, stock characters can’t be owned. Specific *version* of such a character, that have their own names and unique attributes, can be.
      This is a banal observation, and has no bearing on your case at all. It’s not like Darth Vader wasn’t a unique character in 1977 or that a remake would. It can *build* his character, or *change* it, perhaps, but it doesn’t fundamentally change him from being stock/undifferentiated to distinctive/unique. The rest of the subchapter until ‘Strategy 3: Mine Festival’ discusses the big studios’/conglomerates strategy of redeveloping IP…but the point isn’t so that they gain more control over that IP, and nowhere was this claim, which is the principle point of your article above, made at all. The point is to make a string of bankable hits (which I’m sure I said somewhere in the above rants). Wu elaborates that they went for this strategy since bankable stars became less bankable and digital technology allowed ‘cartoonish’ stuff with wider appeal to take root. (This is a pretty elitist argument. I don’t think that effects are the problem; they are symptomatic rather than causal. It’s how they are used that matters.)
      I’m sorry I keep haranguing you here, because we probably share assumptions overall about copyright terms and culture. But that’s precisely what motivates me – I think you got something extremely and obviously wrong, on multiple levels. This deal does not mean Disney will own Star Wars in perpetuity, any more than if Lucas decided to create more films on his own. Period. Full stop. I mean, it’s an even more laughable argument once you consider the existence of the Expanded Universe. This is a sensationalist claim that can’t be backed up, and that is going to discredit you and the rest of the copyleft (I’m already seeing many similar claims being made elsewhere) if you don’t own up.

    • Indeed, we are describing a corporate copyright phenomenon outlined by an IP expert. If you are an IP lawyer, that’s great. Either way, Wu describes the focus on character elaboration as pursued by media companies in the 90s, 00s, and likely in the future.

      With that in light, we do not think the feasibility of the strategy is impacted by the motivations (or apparent motivations) of Disney in 1998. It is safe to assume that Disney only has to gain from longer copyright terms, so they would have pushed for that legislation in any case. This does not mean the strategy of claiming copyright of something like Darth Vader (or an evolved form of) is not possible or on the radar of a company like Disney.

      Again, it is not just a “remake” that is of concern, it is an elaboration on the original that is enough to be claimed as something unique. This is the essence of the Wolverine example, as it is now marketed as stand-alone spin-off, with enough elaboration and addition to the character were it can be claimed on its own.

  8. I am not an IP lawyer or IP expert. I simply love these issues, and am afraid restrictive copyright laws are damaging our culture immensely. I read Lessig’s book years ago and never looked back. But that doesn’t really have a bearing on which one of us is correct, does it?
    The phenomenon that Wu describes and which the WIPO article describes is NOT the same phenomenon that you are claiming will happen under Disney, of creating new IP in order to strengthen claim to older ones. Nobody is making that argument except for you. Your insisting that the phenomena are the same in the face of nearly everything that has been written on the CTEA (at this point it’s hard to believe you’ve read any of it) doesn’t change that. Nor does your insistence (if I read what you just said about Wolverine properly) that Darth Vader or was somehow too stock of a character to be considered copyrightable before ‘further elaboration’ in other works. Wolverine was specifically brought as an example of a character that is obviously copyrightable – there is no mention of need of elaboration in a later work – and according to Wu’s own rubric, Vader would be no different. I can’t see how the same wouldn’t be true of any of the other characters in the 1977 ‘Star Wars’.
    I wasn’t talking about remakes only either, by the way. I mean, I’m assuming that you must be some kind of Star Wars fan, right? That’s why I mentioned the Expanded Universe. The has been going on since 1977 and kicked off in earnest with Timothy Zahn’s books in 1991. So new IP has been consistently created since the beginning – there is a plethora of it! Not just books, but comics, cartoons, cgi cartoons, radio dramas &c &c &c. (To say nothing of, say, posters and artwork.)That most of this new IP isn’t in the medium of film doesn’t change that at all. So even if you’re right – the available evidence is not on your side – and making more books somehow strengthens copyright claims, nothing has actually changed with this sale, unless you think that there’s something special about the medium of film.
    Finally: Disney has been using Mickey Mouse in new IP for years and years too dude. If the CTEA had no bearing over Disney’s copyright ownership over Mickey Mouse, simply because they kept using it, then I have a very difficult time believing that Lessig or Wu (who again, does not make your argument) could have missed that. That Disney would have pushed regardless does not explain the *magnitude* of their support; losing Mickey does, and has been cited as the reason for their support far and wide. Absent your own source on this (here’s another one, if you want: http://www.okbar.org/obj/articles_02/sn121402iandiorio.htm, and many more can be found with a few googles) it really looks like you are assuming that they are wrong because doing so would fit the rest of this thesis.

    • I appreciate your arguments here, as I enjoy the topic as well. Also, I appreciate your criticism of my reading of the sources. Although I don’t agree with some of your interpretation, I think it is overall very good and honest. All in all, I’m glad this article has sparked discussion. You are welcome to continue adding criticism to the article, but this will be my last post.

      The issue boils down to the capacity for derivative works to be copyrighted. Now this phenomenon that Wu points out (media companies focusing on developing characters, making sequels, etc.) would fall in the area of derivative works, which he also makes reference to. And indeed, my reading of Wu is done with derivative works in focus.

      However, the concern is that derivative works are possible and pursued by Disney, and we would think that after what was said by Lucas and the future of Star Wars, that Disney would be creating a vast array of derivative works based on Star Wars, many of which will likely be pursued as unique works.

      I think it is fair to note that claiming a derivative work as copyright is very difficult, so we cannot be sure how or if Disney will actually do this if they choose to do it. But the fact is that they can pursue it, and the lines that define a copyrightable derivate work are often hard to draw.

      • No, my friend, I’ve made my case already :) You have a new line now about derivative works that I’ll address, but I’m done too.
        This new line about derivative works, when the word ‘derivative’ itself can’t be found inside the book by Google books at all, and when nothing I read there seemed to have anything to do with – I don’t know what to make of. If claiming copyright on a work ‘derivative’ of another you already hold the copyright for was ever an issue, this is the first I’m hearing of it, and even if it were true at some point in the past, I don’t see how it is now. Lucas itself has been claiming copyright on numerous works (books, graphic novels, television series and more) based on his original film without issue. Why suddenly this should matter to Disney is beyond me.
        Here’s a nice historical tidbit – now, Lucas himself didn’t own the copyright on the original Star Wars films until the late 90s, when 20th Century Fox traded it to him as part of a new distribution deal for his prequels. But he retained rights to merchandising, sequels, and derivative works instead of being paid his director’s fee back in 1977 – a shrewd move if I do say so myself…

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  10. I almost completely endorse this article as it stands now: of course the creation of more works derivative of Star Wars will create even more culture that’s inside the ‘walled garden’. That doesn’t mean that the story and characters from the original 1977 Star Wars will become more protected due to their existence, except insofar as they can trademark them (like say for Vader). That was and remains my only real bone of contention.

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