Some of this is just POV. Taking the POV of the creator, Tim likes IP law; taking the POV of documentarians, I don’t.
It’s fairly sympathetic to think about Mark Twain and his heirs, but the big beneficiaries of our IP system are not quite so warm and fuzzy. In practical terms, the only entities (and usually not actual “creators”) who benefit from current intellectual property law are those with the resources to defend them.
re Twain’s analogy to the ownership of a house: There’s a big difference between IP and real property. Real property rights are democratic; there is a framework of law which supports the rights of the poor homeowner (theoretically) the same as the rich homeowner. But intellectual property is inherently anti-democratic, because its enforcement is left to the owner, and only the “haves” have the ability to defend it.
imho intellectual property law has gone way too far. It inhibits free speech, including scholarly writing; it’s fairly commonplace for serious biographical works to be eviscerated and not even published, because the correspondence between two historic people has become a commercial property and can’t be quoted. Martin Luther King’s family has notoriously defended their commercial rights to the “dream” speech. (I was in a central Mexico town recently, and the CD sellers on the street were blasting a rap song liberally quoting the actual recording of the “dream” speech. I’m pretty sure it was illegal. It was startling to hear King’s words and voice, and I realized that I’d been missing it because the legal tie-ups had so constricted its use. I think there should be a “new rule”: if the nation declares a holiday in your name, you should give it your public speeches for FREE.)
I hope that intellectual property law evolves further in the direction of fair use, much as real property law has changed. Society has come to recognize the concept of a “bundle of rights” to real property, rather than one single right. There is no absolute right to real property; when it benefits the community to take your house for a road, it gets taken by eminent domain. You can’t use your house contrary to zoning. When Your Rights to real property conflict with Society’s Rights, you lose.
Look at “Strictly Background,” a film about movie extras which liberally uses clips of major Hollywood movies (including their stars) to tell the story of the movie extras who just happen to be in the same field of view as Tom Cruise, etc. The studios first told the filmmakers that they would have to pay mega-thousands for permission to use clips in which the extras appeared. After consulting an attorney, the filmmakers discovered that no payment to the studio or Cruise was necessary, because part of their story involved relatively penurious actors who provide the “background” for big stars. Fair use can be powerful, and we need to exercise and enforce it, lest serious independent documentaries become even more endangered than they are.
Question. You note that “commercial” use is forbidden; are you drawing a distinction between the content of a piece (e.g. a doc on Ty Cobb, using historic images and various MLB logos) vs. putting Cobb’s face and the logos on the poster? Or, are you saying that ANY use of such images is subject to licensing?
Another question, Tim. When a major news organization uses a celebrity image or an image of a trademarked figure, do they have to pay the same licensing fees? Or is there an exception for major media to exercise “freedom of the press”? I don’t think that Time Magazine has to pay a dime to put any person they want on the cover – just the rights holder to the physical image. (Independent documentarians, with their lengthy production timelines and without the cachet of being “major news orgs,” have a very uneven playing field.) Given the evolution of the Internet, where bloggers and anyone with a website or a YouTube video becomes part of a very different media landscape, do you think that the “news exception” will become broader, or more restricted?
Nobody has simply directly responded to the question in the original subject line, but I’m pretty sure that the answer is “forever.” I hope we don’t have to put up with abusive intellectual property restrictions quite that long.