Right to creative benefit

[Jonathan Buhacoff]

The proposed right:

No person shall distribute copies or facsimiles of a work without permission from the producer. No person shall create and distribute a derivative work explicitly or implicitly associated with the original work without permission from the producer of the original work.

Intent:

The intent is to promote creative activity for the benefit of the public.

The term “producer” is used here to refer generally to authors of written or spoken words, inventors, designers, recorders and editors of sound and video, singers, dancers, makers, chefs, analysts, reporters, educators, and others who produce something that can be consumed, experienced, sensed, or used. This definition is intended to be broad and is not limited to the mentioned examples.

A producer may waive the right to creative benefit, typically in exchange for immediate compensation (work for hire) or future compensation (such as revenue commission, sales commission, or profit sharing).

The right to creative benefit protects the ability of the producer of a work to receive compensation for its continued use or distribution or for its use as the basis of new work.

The right to creative benefit protects the reputation of the producer by allowing them to deny association with certain usages or derivations of their work.

The term “derivative” or “derivation” here refers to work that is substantially based on the original work while adding, changing, or removing a sufficient amount of significant elements to be understood as a distinct from the original.

The requirement to have permission of the producer is the cornerstone of creative benefit, because the producer can charge a fee or enter into commercial agreements in which the permission is exchanged for immediate or future payments or other benefits or conditions.

Discussion:

The right to creative benefit protects the producer of a work from people distributing copies of it without permission, and allows the producer of a work to receive compensation and exercise control over their own reputation and with regard to derivative works, but does not prevent others from creating derivative works.

The right to creative benefit and the right to kudos together form a basis for what are currently called copyrights, trademarks, and patents with some similarities and some differences.

The right to creative benefit complements the right to kudos. While the right to kudos requires attribution (unless it was waived), the right to creative benefit requires compensation (unless it was waived). A distributor who does not credit the producer (for example by erasing their name from the copies) violates the producer’s right to kudos. A distributor who does not pay the producer (for example by making and selling additional copies without permission or without the agreed-upon compensation) violates the right to creative benefit of the producer.

The right to property covers things that exist and are owned by someone. In contrast, the right to creative benefit covers things that don’t yet exist. To illustrate this point, imagine a person named Alice holding a book. That book exists. If someone steals it from Alice, it’s a violation of Alice’s right to property. If someone borrows it from Alice, reads it, and returns it, then no rights have been violated. Imagine someone named Bob borrows it with Alice’s permission and makes an unauthorized copy and then returns the original book to Alice. In that scenario, Bob hasn’t violated Alice’s right to property, but Bob violated the author’s right to creative benefit by making an unauthorized copy of it — something that did not exist before. And if Alice knew, when lending out the book, that the borrower intended to make an unauthorized copy, then Alice was part of a conspiracy to violate the author’s right to creative benefit. This is what is meant by the phrase “right to creative benefit covers things that don’t yet exist”, like a future copy of a book.

The right to creative benefit does not dictate the compensation arrangements. The right to consent allows a producer and a distributor to come to any agreement that is lawful. For example, a distributor may pay the producer a percentage of the sale proceeds, or a percentage of profits from that work, or a flat fee for each sale, or a flat fee for a period of distribution, or a one-time fee, or no fee or at all, or any other kind of legal compensation structure.

A producer may waive the right to creative benefit, typically in exchange for a compensation contract involving immediate or future payments. This is important to promote creative work because it creates a legal structure for someone with money to pay other people to do creative work. The value of the work may not yet be known so the money is traded for time or results, or a portion of future revenues may be promised to the producer. The right to kudos requires the employer to attribute the work to its producer, unless the producer waives their right to kudos for that work as part of the deal. If the distributor breaks the contract, the right to creative benefit provides standing for the producer to sue not only for the breach of contract, but for the violation of the right to creative benefit which resulted from the distribution that was not in accordance with the contract.

Original work

No person shall distribute copies or facsimiles of a work without permission from the producer. This part of the proposed right would be the basis for much of copyright law, trademark law, and patent law. For example, copying and selling books, songs, and movies without permission would be prohibited; creating imitation or “knock off” goods and selling them with the trademark of the original would be prohibited; selling a product or service that uses a patented process without permission from the patent holder would be prohibited (unless the patents redefined proposal is adopted which provides a better way for the public to benefit and for the inventor to be compensated without stifling the market).

It must be noted that few things are truly original. However, there is a generally accepted view that when something is different enough from what has been done before it is considered original.

A distributor who does not compensate the producer for the continued distribution of their work (for example by making and distributing unauthorized copies, or by making and distributing copies not covered by any agreement) violates the producer’s right to creative benefit.

The right to creative benefit protects the ability of the producer of a work to receive compensation for its continued use. Without a compensation contract in place, or without a default compensation required by law, other people may not copy and distribute the work.

Derivative work

No person shall create and distribute a derivative work explicitly or implicitly associated with the original work without permission from the producer of the original work. This part of the proposed right would be the basis for the part of copyright law and patent law that deals with derivative work, and the part of trademark law that prohibits trademarks that are too similar to the original.

The term “derivative” cannot be defined with a number to compute a threshold of how much a work is different from another and whether it’s enough to be considered a derivative or original because it depends on the nature and quantity of the elements added, changed, or removed and on the existing body of work to which such changes can be compared. To determine if a work is a derivative of another or an original work, a judge should look for expert evidence and a survey of a sufficiently large number of people to be representative of the population.

The right to creative benefit protects the ability of the producer of a work to receive compensation for its use as the basis of new work. Without a compensation contract in place, or without a default compensation required by law, other people may create and distribute derivative works.

The right to creative benefit protects the reputation of the producer by allowing them to deny certain use or derivations of their work. If someone wants to copy a work for some purpose and seeks permission from the producer, and the producer does not want the work to be used in that way, the producer can deny permission and thereby protect their reputation by refusing to receive compensation for that use of the work. If someone wants to create a derivative work of something and seeks permission, the producer can deny permission if they determine if that derivative work would harm their own reputation. However, this does not prevent someone from creating and distributing a derived work — it only prevents them from stating or implying that the producer of the original work has any association with the derived work, such as reviewing or endorsing it.

To balance the right of the original producer to creative benefit from their work with the public interest in promoting creative work, three elements are needed:

First, there needs to be a clear separation between the original producer and the producer of the derived work to avoid an explicit or implicit association of the derived work and its producer with the original work and its producer. The derived work must clearly and prominently state that it is a derived work such as a satire or fan fiction and that it was not produced in association with the original producer. For example, a prominent statement on the front cover, or the words “satire” or “fan fiction” on the cover or in the subtitle of the work. The fact that the work is a satire or fan fiction of an original production must be mentioned anywhere the artwork or logo of the original work is used in connection with the derived work, to explicitly dissociate the fan fiction from the original producer.

Second, a citation of the original work and its producer must be clearly and prominently stated and include the title of the original work and the name of the producer of the original work. This means it’s not enough for a derivative work to state “this is a fan fiction”, it must state the origin such as “this is a fan fiction of ABC by XYZ”. This is important so that people who view the derivative work and are interested in the original can easily identify it, to help the original producer benefit from their original work.

Third, the derivative work must be distributed non-commercially. This means it must be freely shared or distributed without taking payment or, if the act of production or distribution incurs a cost it must be done via a registered non-profit distribution company that is not managed or controlled by the producer of the derivative work. This allows a producer of a derived work can raise money to fund the production or distribution and to share the work with donors and with the public, with full and public accounting for the revenues and costs to ensure compliance with the non-commercial distribution requirement. A non-profit distribution company that has accumulated funds can, for example, use those funds to subsidize future production and distribution, or to operate creative competitions and awards, or to donate them to another non-profit.

These three elements together protect the reputation of the original producer, protect the ability of the original producer to benefit from their work, and protects the ability of the public to create and share and benefit from derivative works.

To facilitate non-commercial distribution, a law should be enacted that the recipient of any work marked as a non-commercial distribution may freely share or redistribute it with others but is prohibited from commercially redistributing it — any distribution of a non-commercial production must include the three elements discussed above to avoid violating the original producer’s right to creative benefit. This also applies to distribution that occurs in other countries even though their laws are different. That means if a local distributor earns foreign profits in violation of these rules, distributor is violating the original producer’s right to creative benefit and because it’s a right, anyone with knowledge of the violation has standing to sue for justice in order to protect both the original producer and the producer of the derived work.

Comparison with the United Nations

Article 27.2 of the United Nations Universal Declaration of Human Rights states “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The right to kudos and the right to creative benefit together cover this protection of moral and material interests resulting from one’s contributions to society.

Comparison with the United States

The difference between modern “copyright” laws and the right to creative benefit is that modern copyright laws allow someone to exclude others from distributing copies or derived works for a long time, possibly forever, while the right to creative benefit does not prevent others from creating new things.

In the United States, the legislature has approved extensions of the exclusion period that benefit “copyright holders” but not the public, as demonstrated by the lobbying activity that preceded the legislation and the timing of the legislation. This result undermines the purpose of “copyright” which is to stimulate creative activity for the benefit of the public. In contrast, the right to creative benefit does not prevent other people from creating derivative works. There are some requirements on derivative works to protect the original producer but they are not prohibited.

Example: Exhibit

If the work is a display piece and the distributor will sell tickets for people to see it or experience it, the producer and the distributor could make an arrangement where the producer (artist) receives an immediate sum for the work (a simple purchase) or where the producer receives a percentage or a flat fee from every ticket sold (revenue commission), which rewards artists who make interesting things the public wants to see and reduces risk for the buyer of paying a lot of money for something that might not be commercially successful. Taking this example a step further, if the work is displayed in a private space, the distributor (now the host) may set a condition on ticket purchase and entry that visitors are not allowed to photograph the work, in order to protect the business of selling tickets. The distributor may then enter into a license agreement with one or more photographers to photograph the work and sell the photographs commercially, if the distributor acquired complete control over the exhibit from the producer or if such alternative distribution is in accordance with the distributor’s agreement with the producer.

However, if the work is displayed in a public space, there cannot be such conditions because people are allowed to draw or photograph whatever they see in a public space. If the distributor did not acquire complete control over the exhibit and displays it in public without permission, the distributor is violating the contract with the producer and violating the producer’s right to creative benefit.

Example: Book or movie credits

There are cases in which it’s not practical to give credit, or at least not practical to give credit alongside each copy of the work. For example, the icons in an operating system or application, or a company’s logo or advertisements, are places in which it’s impractical to list the one or more people who produced the work. If credit is to be given in these cases, it is more practical to have a separate location for that. In movies, for example, the full credits are typically shown at the end for all the work that was involved in producing the movie.

Example: Fan fiction

In this example, there is a widely known product or set of products, such as a book series or a movie series. Someone is inspired by the product and wants to write and distribute a book or movie that is set in the same story as the product, or includes some of the same characters, or characters related to them. Under copyright law and precedent in the United States, this would be considered a derived work and would violate the copyright holder’s copyright. Such fan fiction producers have been sued in the past by the copyright holders and had to stop their creative effort either because they lost in court or because they didn’t have the funds to even argue their case in court. However, limiting this creativity is against the public’s interest.

Allowing fans to write and share fan-fiction does not hurt the original producer, it builds the fan base. It may even allow the original producer to identify great writers or artists and propose a future collaboration.

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