I think infringing on The Joker’s copyright is funny, and I’m sick of pretending it’s not.

There’s a new Joker movie coming out, but you might not get a chance to see it because the copyright is broken.

I’m not talking about Joker: Madness for two, the officially sanctioned sequel to Todd Phillips’ film Joker. I’m talking about The people’s prankster, a crowd-funded selection from the Toronto International Film Festival that was pulled at the last minute, due to unspecified “rights issues”. The People’s Prankster is (as far as I can tell) an extremely loose retelling of the Batman villain’s origin story, reinterpreting the Joker as a trans woman trying to break into the mob world of Gotham’s comedy scene. Its trailer describes it as “an illegal comic book movie”, but its creators more seriously defend it as an unauthorized but legal parody of the original DC character, to the point (apparently) of giving their lawyer full credit. screen.

I have no idea if The People’s Prankster is a good movie — thanks to its cancellation, my colleague Andrew Webster couldn’t see it at TIFF. The piece is clearly a provocation designed to snub DC’s copyright, and DC’s parent company, Warner Bros., hasn’t said whether it actually ordered TIFF to cancel the screenings – it’s possible the festival was hesitant or even Drew did it herself. But despite all this, one thing is very clear: apart from a small number of corporate giants, hardly anyone is profiting from the shutdown. The people’s prankster — not the filmmakers, not the audience, and not the people who created Gotham City in the first place.

Pop culture is a shared language, and it’s incredibly natural for people to draw inspiration from it.

Writer-director Vera Drew says she made The People’s Prankster partly to test a contemporary truism: that beloved fictional universes are a shared modern mythology, and that people derive meaning from them in much the same way artists once reinterpreted Greek myths or painted biblical characters. As Drew said, “if the purpose of the mythos is to learn about the human experience and grow and also track your progress – the hero’s journey and all that – let’s do it seriously with these characters. “

I’m not touching on the “modern myths” argument (if you’re not a comic book legend like Grant Morrison, comparing a criminal clown to an ancient deity usually seems pretentious), but popular culture is certainly a shared language. People use it to interpret events in their own lives, learn about themselves, and communicate new ideas to other people. Drew, for example, describes watching a kiss in batman forever and realizing she wanted to be the film’s female lead, not its male hero.

It’s incredibly natural for people to lean on stories and characters that helped shape them as human beings, like using a newly coined word in your own turn of phrase. This is all the more true as entire generations share the experience of growing up with these characters. (The Joker is 82 years old, which is way longer than most of us on this earth.) Media companies are encouraging it – but only on their terms, backed by legal force.

To understand these terms, we need to talk about a fight much older than superhero comics: a battle over the raison d’être of copyright. It’s not the most obvious line to draw from a movie about a stand-up villain, but it’s incredibly important. Copyright is not just about laws and disclaimers! It’s about what the culture itself is supposed to be.

In his book Common as the Air, author Lewis Hyde describes two fundamental ways of looking at culture. The first view says it should work like private land. When an artist creates something, it comes with fundamental, almost unlimited property rights. The owner can take advantage of it and control who has access to it, preventing people from using it in ways they don’t like. All limits should be narrow, reluctant exceptions for the common good, the equivalent of not being able to dump toxic waste in your garden. And breaking these rules is simple and cowardly theft.

There are two ways to consider art: as a private good or as a public good

The second is that culture is (as the title of the book suggests) a common good. Artists don’t work in a vacuum, and art improves when people can fearlessly respond to others’ ideas instead of asking for permission. It helps to have a temporary period where artists can maintain control over their work, as it helps support them financially and encourages them to do more. But the ultimate goal is for the art to pass into the public domain and become part of a conversation, with people reusing it to create their own work.

From the first point of view, copyright is a natural law that protects the art of the people who experience it. From the second, it’s a tool that’s supposed to improve the experience — and should be fixed if it’s not.

Modern American copyright law is one with these reluctant and narrow exceptions. Works are very slowly moving into the public domain, but only after a 20-year freeze that finally ended in 2019. (When Stories are in the public domain they are still entangled with confusing and specious lawsuits about things like whether the public domain Sherlock Holmes is allowed to have feelings.) There is an exemption for fair use of copyrighted works author, which is supposed to allow people to transform or comment on work. But its design forces artists to risk a lawsuit based on a case-by-case weighing of four nebulous legal pillars.

This uncertainty has created widely accepted rules of thumb that aren’t even accurate, such as the idea that fair use only protects non-commercial art – something that, in a system supposedly designed to ensure that artists get paid, has left many to assume that they can only work for free. This same uncertainty leaves projects like The People’s Prankster pending takedown notice and possible legal battle. In other cases, it forces intermediary platforms to overstep the mark, preferring to stop fair use work rather than risk an infringement.

Modern copyright law is a world of reluctant and narrow exceptions

You can still do some good, interesting work under this system. Many artists have taken refuge in fair use exceptions, especially permissions for parody and commentary. Some copyright holders explicitly allow fan works or avoid attacking things like non-commercial fanfiction. Sometimes rights holders back down after being pushed back, as we’ve seen with the Organization for Transformative Works, the operators of the Archive of Our Own, and a legal defense project for fan creators. But this creative work happens despite copyright laws, not because of them.

In cases like The People’s Prankster, who exactly serves the system? They are not the original creators of the classic comic book characters, most of whom are dead. Many writers and artists have sold their rights to Marvel and DC on a work-for-hire basis, so their surviving family members often don’t see the money either, despite decades of lawsuits. (One might also wonder how many generations should benefit from an artist’s work.) And a new generation of artists cannot freely draw on the stories they grew up with – after the companies that hold the rights , like Disney, have founded their empires on the back of public domain works like White as snow.

A common rationale is that copyright helps stop hateful and offensive spin-offs on beloved stories. (This is reflected in some new unorthodox copyright licensing attempts, such as Andreessen Horowitz’s cryptographic copyright system, which allows creators to revoke the license if the art is used for the speech of hate.) But in the long run, that means copyright is just censorship with an extra no. He suggests granting a near-perpetual license to control how people interact with culture long after creators with a personal stake in it have left. And if you think copyright prevents artists from seeing gruesome adaptations of their work, Alan Moore would like to tell you about it.

I don’t have a precise solution to this problem, and it is admittedly complex. I’m not sure exactly how long copyright duration should be to balance artists’ well-being with a cultural commons. I’m not sure what a clearer and more generous fair use system should encompass. (Hyde’s book has some compelling proposals.) But if a law meant to protect artists leaves weird independent films in limbo to protect a corporate brand, something has gone wrong.


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