Copyright reversion, bargaining power, and authors’ rights.
Few labor markets are as dysfunctional as the market for creative labor. Writers, musicians, graphic artists and other creative workers often produce because they feel they have to, driven by a need to express and discover themselves. Small wonder that creative workers are willing to produce art for lower wages than they’d accept for other types of work. This leads to a vast oversupply of creative work, giving publishers, labels, studios and other intermediaries a buyer’s market for creative labor.
For the most part, arts policy pretends this isn’t true. When economists and business-people talk about labor markets, they lean heavily on the neoliberal conception of “rational economic actors” who produce when it makes sense to do so, and move on to another form of work when it doesn’t. Homo economicus is a nonsense — behavioral economics has repeatedly demonstrated all the ways in which “economic actors” don’t behave the way economic models predict they will — but it’s especially absurd when applied to creative labor markets.
To be fair, policymakers have been abetted by creators who insisted that they were only acting rationally — think of Samuel Johnson’s “No man but a blockhead ever wrote except for money.” But no amount of pretense could fully obscure the irrational and exploitative nature of the market for creative work, which is why we find odd glimmers of reasonableness in arts policy.
Take the first US copyright law, the “Framers’ Copyright,” which established a 14-year term of copyright. This was, and still is, the term of commercial viability for the vast majority of works. However, if your work happened to be among the lucky, tiny minority of books that were still commercially active after 14 years, you could get another 14 years of copyright — but only if you, personally, applied for it.
Did you catch the labor policy latent in that copyright law? If a work was commercially viable after 14 years, the creator could extend its copyright for another 14. The publisher couldn’t.
The vast majority of creators who sit down to dicker over the price of a new work with an investor — a publisher, a label, a studio, etc — have virtually no negotiating power. Not only are there plenty of other creators willing to fill the slot in the investor’s portfolio, but the new work is almost always a bet with unquantifiable odds —no one, not the greatest A&R scout, nor the most astute acquiring editor, nor the most gilded studio executive, nor even the best algorithm fattened with the most data, can reliably pick winners from among the pool of creative works available to then.
As creative markets have become increasingly concentrated and winner-take-all, investor organizations, awash with cash, have laid increasingly larger bets on works, paying larger advances, allocating bigger marketing budgets, shelling out for licenses and top talent to work on “tentpole” projects in a bid to dominate a winner-take-all system. Big bets can have big payoffs, but they also come at a creative cost: when a company shells out millions for a new project, it does everything it can to reduce its risk through sticking with known quantities: paying for name-brand talent, rebooting previously successful projects, commissioning endless sequels and lookalikes.
There’s an obvious problem with only funding variations on successful works: where do you get the successful works to endlessly reboot and remix? This consideration isn’t lost on the decision-makers in the culture industry (most of whom are genuinely interested in originality and novelty, notwithstanding the need to cabin investment risk), which is why there’s always new stuff being released — creative debuts, experiments with form and genre, all manner of longshot bets.
Here’s where labor economics tilts towards the investor and away from the worker: when your work is a long-shot, when there is an bottomless pool of other workers producing long-shots that are no more improbable than your own, then the investor can negotiate incredibly low rates for your work, and lock those low rates in for long timescales.
If you get very lucky, if you happen to score a big success you can leverage that with your next project to command better terms. But those early bad bargains are eternal. Once The Beatles were established, they signed lucrative deals, but for their first several studio albums, the Fab Four got one penny in royalties per album sold, which they split four ways, after 15% was taken out to pay for promotional copies.
That’s the kind of grotesque outcome that the Framers’ Copyright sought to prevent. By limiting copyright renewal to the author, the framers gave creators a chance to re-negotiate their deals from a position of strength. To illustrate how this might have worked, I’m going to reproduce a short two-act play from my book Information Doesn’t Want to Be Free:
(A publisher’s office in colonial America. The PUBLISHER, wearing a green eyeshade, presides over a huge, cast-iron press, standing behind a countertop surmounted by a bushel of sickly potatoes. The AUTHOR, dressed in ragged trousers, enters, carrying a large manuscript, which he thrusts upon the publisher)
I have written a novel!
(Publisher takes the manuscript and peruses it)
Not bad, my fine fellow. If you woulds’t assign to me thine copyright, I will remunerate you handsomely with yonder potato.
Just one potato? It took me a year!
If thee doubt mine generosity, I invite you to offer this manuscript to the scoundrels down the road. I hear they are paying authors in half-carrots.
Do you really need my whole copyright assigned to you? What if I just license it to you?
Ah, but this is how we protect our investment in the work. Once thou hast assigned unto me thine copyright, I can use it sue yonder down-the-road scoundrels, who would otherwise happily put out a pirated edition.
(Publisher offers a contract in one hand, a potato in the other. The author signs it)
(The publisher’s office, 14 years later, and much enriched. Many presses clank away in the background, attended by busy, efficient laborers. The publisher has grown fat and satisfied in his dotage. The author enters, even thinner and more down-at-heels than before)
You sent for me, sir?
Ah yes, so nice to see you again. You’re looking, erm… well.
I don’t suppose you have any more potatoes?
Indeed, sir, I do! And all I require is that you sign this copyright renewal form so I can post it straightaway to the Library of Congress.
Yes, I see my novel in bookstores everywhere. I’d forgotten that the copyright was due to expire. That must be terrible for you, when that happens. After all, you’ve made such a good living from it.
If you’d just sign right here…
Oh, I’ll sign. But before I take pen in hand, let us discuss the matter of back-royalties and my fee for renewal.
Come now, sir. If thou woulds’t not sign this paper, why, thine novel would fall into the public domain, and the scoundrels down the road would begin to print up competing editions
I don’t see what that has to do with me.
Sir, woulds’t you have thine novel to be published by scoundrels?
(Author gives Publisher a significant look. Publisher squirms)
Renewal-by-author isn’t merely a way to manage the public domain (if the author doesn’t think their work’s copyright is worth renewing, then why not return it to the public domain so that all may use, re-use, preserve and build on it?) — it’s a way to ensure that breakout creativity works compensate their creators as well as their investors.
But it’s not the only way. “Reversion Rights” are a longstanding feature of many of the world’s copyright systems. In the US, a creator who files the correct paperwork can reclaim the rights to their work after 35 years, irrespective of the terms of their contract. That is, even if you sign away your rights for the whole term of copyright, you can still claw them back any time after 35 years has gone by.
Now, a vanishingly small number of works are still valuable after 35 years. But that alone doesn’t account for the minuscule portion of works that get reverted. As Joshua Yuvaraj, Rebecca Giblin, Daniel Russo-Batterham and Genevieve Grant document in their groundbreaking 2021 study, U.S. Copyright Termination Notices 1977–2020: Introducing New Datasets, the complexity and opacity of the reversion process keeps works locked up with investors, to the detriment of creators who negotiated their early contracts from a position of terrible weakness.
And yet, reversion does happen! Stephen King, George RR Martin, Nora Roberts and David Eddings have all reverted their works. But the reversion gold medal goes to Francine Pascal, author of the Sweet Valley High Books, who reverted all 305. Silver goes to Ann Martin, who reverted the entire Babysitters Club series.
Musicians are cautiously exploring reversion as well: most famously, George Clinton reverted 1,413 of his works — songs he claimed had been stolen from him by an unethical manager.
The most exciting reversion news of the decade just dropped: the heirs of Stan Lee, Steve Ditko, Don Rico, Don Heck, Larry Lieber, and Gene Colan have filed to revert the rights to the most famous characters they created for Marvel — characters now owned by Disney, which has turned them into a multi-billion-dollar ATM for its investors, without cutting in the original creators.
Unsurprisingly, Disney is suing to block the reversion, claiming that the Marvel characters are not eligible for reversion because they were “works made for hire.”
The case will be fascinating, and closely watched by creators and creators’ advocates, in part because it’s a rematch of an earlier fight. In 2014, Marc Toberoff represented the estates of Superman creators, Jerry Siegel and Joe Shuster, who were paid a flat sum of $130 for the rights to their creation by DC in 1938 and died in poverty, in a bid to revert the rights to Superman. He lost — and Warners (DC’s parent company) went scorched earth in retaliation, trying to scare off other would-be reverters by claiming that Toberoff was guilty of “tortious interference” in their contract with Siegel and Schuster; they also tried (unsuccessfully) to have Toberoff sanctioned by the judge in the case.
Toberoff’s nemesis in the Superman case was Dan Petrocelli, who represented Warners. Today, Toberoff is representing the Marvel heirs, and Petrocelli has been retained by Disney for a rematch.
I’m not going to make a guess at the outcome of this case. It will doubtless turn on technicalities of the “Marvel Method,” and on the specific nature of the contracts that the Marvel creators entered into with the company. These are likely to be quite a hodgepodge, as Marvel went through a series of bankruptcies and near-bankruptcies and labored under chaotic management for most of its corporate history. Large media companies have surprisingly bad contracting policies — a Star Trek original series creator of my acquaintance claims that they retained the rights to a major aspect of the series, one that Paramount freely reused without any royalties or permissions, in violation of their contract. My source believes Paramount doesn’t even realize it doesn’t have the rights to do what it’s doing.
But beyond the legal technicalities, the outcome of Disney’s case is extremely hard to predict. In 2014, Disney settled with the Jack Kirby estate in a similar case that was headed for the Supreme Court. The terms of the settlement were undisclosed, though again, I’ve heard that the sums involved were staggering, implying that Disney decided that an unfavorable Supreme Court ruling was possible — and could be ruinous.
If I had to bet on the outcome of these cases, I’d bet on another settlement. Disney doesn’t want to set a pro-reversion settlement in the nation’s highest court, and beyond that, the company has to be eyeing the resurgence of antitrust enforcement (including a focus on monopolists’ exploitative labor practices) with trepidation, and at least some of its lawyers will be pushing to have the company put on a show of its benign rule.
But more important than the outcome of these cases is the future of reversion itself. As the culture industries become more concentrated and more profitable, and as the median incomes of culture workers fall, reversion is a powerful tool for helping ensure that when a work of art is commercially successful, artists share the riches.
Nonprofits like the Authors Alliance have done important work in producing tools to help automate reversion, but the process is still too complicated and it takes too long to invoke. A 25-year reversion standard — or, hell, a “Framer’s Reversion” at 14 years — would have no impact on the vast majority of works, but would still have a dramatic effect on the financial straits of the creators whose works bring joy to millions.
I declare an interest here. Not only am I an author, but I’m also a member of the advisory board for the Authors’ Alliance; I also collaborated with Rebecca Giblin, co-author of the reversion study linked above, to write a book called The Shakedown that explores the way that the entire creative supply chain is tilted away from creators’ interests, and explores novel tools for putting more money in creators’ pockets, from reversion to prohibiting certain contracting terms, from worker co-ops to trade unions, and beyond.