Copyright Law is Killing the B-Movie Industry

                                                                     Zach Denver

            If you were excited by the release of Hansel and Gretel Witch Hunters[1] you are either a tween boy or a movie executive that made a tidy profit on a pretty low-rent idea.  I don’t plan to see this movie, but based on the trailer I have to assume that the plot has absolutely nothing to do with the original Grimm Tale except the name and the fact that witches are involved.  It’s not hard to understand why an action movie involving a brother and sister pair of witch-hunters was attractive to Paramount; what’s harder to understand is why they bothered to shoehorn it into the 1812 fairy tale.  Hansel and Gretel aren’t cultural icons. If you’ve ever heard the story it was probably only once and it probably wasn’t one of your favorites; yet IMDB estimates this movie’s budget at $60 million!  The riddle of why this movie was made, and what to do to incentivize better movies in the future can be answered by understanding two basics of the entertainment industry: 1) people prefer familiar characters and themes, and 2) copyright law limits the number of openly-available characters to choose from.  The first one isn’t going to change, but if like me you think a grim and gritty Hansel and Gretel is silly, amending copyright law to be more in line with classical liberal thinking could produce positive results.
            First, it’s nice to have a reminder of why this movie is “Hansel and Gretel Witch Hunters” and not “Aaron and Wanda Witch Hunters”.  People like the familiar in their entertainment choices.  Of the top 20 all-time worldwide grosses for movies, only two (“The Lion King” and “Avatar”) weren’t either based on history (“Titanic”), established sequels (“Toy Story 3”), or based on characters that have been around for years (the rest).[2]  The top seven movies of 2012 were: The Avengers, The Dark Knight Rises, The Hunger Games, Skyfall, Twilight, The Hobbit, and Amazing Spiderman. Mind you, I’m not judging.[3]  I own the Avengers and Dark Knight on DVD already and I know I’ll get around to seeing the Hobbit and Spiderman at some point. My point is that the market has spoken and people like to see the same thing over and over.  Arguments about whether they have good taste is above my pay grade, but a classical liberal recognizes that people should have choices in the entertainment they consume, and they have chosen.
            The top grossing movies are subject to a strict limitation though--the properties are all owned by one producer.  Universal, seeing the success of the Hunger Games can’t go out and make their own Hunger Games to cash in on the audience recognition, and in the case of Hunger Games, rightly so.  Copyright law does a nice job of incentivizing Suzanne Collins to write a worldwide hit book because she can sell the rights later and make even more money.  Keeping the rights to her intellectual property allows the creator to direct the marketing of the property in the way they see fit which usually leads to a better quality product.  This process works well for a while, but as copyright law has expanded to cover works for longer and longer, now covering life of the creator plus 70 years, or 120 years if created by a corporation those incentives don’t apply after a few years.[4]  This is a problem in itself, but even worse is the fact that the Walt Disney Corporation successfully lobbied for extended copyrights in 1998 to protect its major characters through 2023, and everyone believes they will be successful extending it again before the ten years is up, effectively making any character created after 1928 permanently protected by copyright and out of the public domain.
            The classical liberal argument against extended copyrights is that intellectual property is fundamentally different from personal property, in that when someone takes your personal property, they have access to it and you lose access to it; but when someone takes your intellectual property, they now have free access to it, but you have not lost anything except the exclusive right to sell the property.  Good copyright law would balance the right to profit of the creator inherent in his or her property rights, while also recognizing that this right can be exercised in a reasonable period of time, after which he or she may lose exclusivity but would not lose the property itself.  This is an interesting aspect of classical liberal legal theory that at first glance seems to be anti-property rights, and anyone interested in learning more should read up on the debate.[5] But this article is aimed at analyzing a particular undesirable result of our copyright system, and why letting intellectual property run its course earlier would be good for the entertainment industry and us as media consumers.
            Finally, the answer to why there’s a movie called Hansel and Gretel that has almost nothing to do with Hansel and Gretel: it’s in the public domain and still recognizable.  Fairy tales and religious texts are the only stories the public domain that are still recognizable today.  When you say Hansel and Gretel, it rings bells in the audience the same way Spiderman does, except anyone that wants to use the characters can do so.  That’s why in 2012 there were two summer movies based on Snow White, and it’s why later in the year there is an action movie coming out about Jack and the Beanstalk.[6]  There are two prime-time TV shows on today based on fairy tales (“Once Upon a Time” and “Grimm”)[7], and I can’t even count how many fairy tale mash-up miniseries I’ve seen over the years.  Universal can’t do its own version of Hunger Games, but it can do Snow White and the Huntsman and achieve a good enough result. 
If people were head-over-heels in love with these stories more than any others it wouldn’t be a big deal, but there have been 63 portrayals of Snow White since 1990.[8]  This isn’t the market speaking to people’s preferences; it’s the perverted incentives created by copyright law.  Any story created after 1928 is being forgotten in obscurity because talented creators with small budgets don’t have the ability to make profitable projects off these properties.  The damage to the film industry is lost profit; a Betty Boop, Felix the Cat, Winnie the Pooh, or Popeye movie (let’s not even bring Mickey into it) would be much more popular than Hansel and Gretel.  But more important is the damage to consumers who are deprived of many choices the market would otherwise supply at the least extreme, and at the most extreme we are systematically being deprived of our cultural history because we are slowly forgetting our classics but constantly reminded of fairy tales.  For an example of what could be for many classic characters, consider the Wizard of Oz which went into the public domain in 1956.[9]  The musical “Wicked” went on to be a hugely successful Broadway hit by combining familiar characters and new ideas.  This success wasn’t the result of the original creator directing future use, but the product of creative people freed from unreasonable restrictions by the state.
Mickey Mouse is set to enter the public domain in 2023 and the Walt Disney Corporation will almost certainly ask Congress for an extension once again.  There are many reasons to be concerned about any further extension, and many intellectual traditions have principled arguments against what is in practice a perpetual copyright.  However, as you decide what to do this weekend I’ll leave you with what might be a much more convincing argument: Hansel and Gretel Witch Hunters over and over and over and over . . .

[4] 17 U.S.C. 302