I think it’s funny to ignore the Joker’s copyright, and I’m tired of pretending it isn’t
There’s a new Joker movie coming out, but you might not get a chance to see it because of copyright infringement.
I’m not talking about Joker: Folie à Deux, the officially licensed sequel to the Todd Phillips movie joker. I’m talking about The joker of the people, a crowdfunded selection from the Toronto International Film Festival that was withdrawn at the last minute, due to unspecified ‘rights issues’. The People’s Joker is (to my knowledge) an extremely loose retelling of the Batman villain’s origin story, reinterpreting the Joker as a trans woman trying to break into the mafia-esque world of Gotham’s stand-up comedy scene. The trailer describes it as “an illegal comic book movie,” but the creators more seriously defend it as an illicit but legal parody of DC’s original character, to the point of (apparently) giving their lawyer a full screen.
i have no idea if The People’s Joker is a good movie – due to the cancellation my colleague Andrew Webster was unable to see it at TIFF. The piece is clearly a provocation designed to smear DC’s copyright, and DC parent company Warner Bros. didn’t say whether the TIFF actually ordered screenings to be canceled — it’s possible the festival resisted or even Drew did it himself. But despite all that, one thing is very clear: except for a small number of large companies, virtually no one benefits from closure The prankster of the people — 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 build on it
Writer-Director Vera Drew says she made The People’s Joker partly to test a contemporary truth: that beloved fictional universes are a shared modern mythology, and that people derive meaning from them the way artists once reinterpreted Greek myths or painted biblical figures. As Drew has put it, “if the purpose of the myth is to learn about the human experience and grow and also chart your progress – the hero’s journey and all that sort of thing – let’s do that.” Then get serious with these characters.”
I don’t touch the “modern myths” argument (if you’re not a comic book legend like) Grant Morrisoncomparing a criminal clown to an ancient deity usually sounds pretentious), but popular culture is certainly a shared language. People use it to interpret events in their own lives, learn things about themselves, and communicate new ideas to other people. For example, Drew describes watching a kiss in Batman forever and realized she wanted to be the female lead of the film, not the male hero.
It’s incredibly natural for people to build on stories and characters that shaped them as human beings, like using a newly invented word in your own twist. That’s especially true because entire generations share the experience of growing up with these characters. (The Joker is 82 years old, which is much longer than most of us have been on this earth.) Media companies encourage it — but only on their terms, backed by legal force.
To understand these terms, we need to be talking about a battle much older than superhero comics: a battle over what copyright is for. It’s not the most obvious line to draw from a movie about a supervillain doing stand-up comedy, but it’s an incredibly important one. Copyright is not just about laws and disclaimers! It’s about what culture itself should be.
In his book Just like air, author Lewis Hyde describes two fundamental ways of looking at culture. The first view says it should operate as a private land. When an artist makes something, it comes with fundamental, almost unlimited property rights. The owner can take advantage of it and control who has access to it, so people can’t use it in ways they don’t like. All limits should be tight and grudging exceptions for the common good, the equivalent of not being able to dump toxic waste in your backyard. And breaking those rules is simple, cowardly theft.
There are two ways of looking at art: as a private property or as a public good
The second view is that culture (as the title of the book suggests) is a common good. Artists don’t work in a vacuum, and art gets better when people can react fearlessly to each other’s ideas instead of asking permission. It is helpful to have a temporary period in which artists can maintain control of their work as it supports them financially and encourages them to make more of it. But the ultimate goal is for art to move into the public domain and be part of a conversation, with people reusing it to create their own work.
From the first perspective, copyright is a law of nature that protects art from the people who experience it. From the second, it’s a tool that should enhance the experience – and that needs to be fixed if it doesn’t.
Modern US copyright law is the kind with those grudging, limited exceptions. Works are entering the public domain very slowly, but only after a 20 year freeze that finally ended in 2019. (When stories to be in the public domain, they are still being sandblasted by confusing, misleading lawsuits on things like whether the public domain is allowed Sherlock Holmes feelings.) There is a fair use exemption for copyrighted works, which should allow people to transform or comment on work. But the design requires artists to risk a lawsuit based on a case-by-case consideration of four vague legal pillars.
This uncertainty has led to 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 artists get paid, has convinced many that they can only work for free. That same uncertainty leaves projects like The People’s Joker waiting for a takedown request and possible legal battle. In other cases, it causes intermediary platforms to overshoot, preferring to stop fair-use work rather than risk infringement.
Modern copyright law is a world of reluctant, limited exceptions
You can still do good, interesting work under this system. Many artists have resorted to fair use exceptions, especially parody and commentary fees. Some copyright holders explicitly allow fan works or avoid attacking things like non-commercial fan fiction. Sometimes rights holders will back off after receiving pushback, as we’ve seen with the Organization for Transformative Works, the operators of the Archive of Our Own – gins, and a legal defense project for fan creators. But this creative work happens despite of copyright laws, not because of them.
In cases such as: The People’s Joker, who exactly is the system intended for? They are not the original creators of classic comic book characters, most of whom are dead. Many writers and artists have sold their rights to Marvel and DC on a hiring basis, so that their next of kin often do not see any money, despite decades from lawsuits. (It’s also a question of how many generations should benefit from one artist’s work.) And a new generation of artists can’t freely build on the stories they grew up with — after the rights-holders, like Disney, build their empire on the backs of the public domain work as snow white.
A common justification is that copyright helps stop hateful, offensive spins on beloved stories. (This is reflected in some new attempts at unorthodox copyright licensing, such as Andreessen Horowitz’s crypto-copyright system, which allows creators to revoke the license if the art is used for hate speech.) But in the long run, that means copyright is just censorship. with additional steps. It proposes granting a near-perpetual license to control how people interact with culture long after the creators who have a personal interest in it are gone. And if you think copyright keeps artists from seeing horrible edits to their work, Alan Moore would like to speak with you.
I don’t have a precise solution to this problem, and it is admittedly a complex one. I’m not exactly sure how long a copyright term should be to balance artists’ well-being with a cultural commons. I’m not exactly sure what a clearer, more generous fair use system should include. (Hyde’s book has some compelling proposals.) But when a law designed to protect artists leaves strange independent films in limbo to protect a corporate brand, something has gone horribly wrong.