2016] 837 LICENSE TO REMIX Terry Hart∗ INTRODUCTION “As Batman so sagely told Robin, ‘In our well-ordered society, protection of private property is essential.’”1 Consider the Batman. The superhero vigilante was created by Bob Kane and Bill Finger way back in 1939,2 but continues to enjoy widespread popularity to this day. Batman has been portrayed as both hero and anti- hero; in stories that have been mysterious, campy, or gritty; and in a wide range of media, from comic books to television shows, films, and video games.3 Copyright serves as the bedrock upon which DC Comics can main- tain control over the character of Batman, coordinating with partners, licen- sees, and an army of creators to bring to life such a wide variety of stories that resonate with audiences both new and old. But with increasing frequency over the past two decades, copyright law is criticized as creating a “permissions culture,” one that is “hostile” to remix and at odds with how people create.4 Critics adhering to this view ∗ VP Legal Policy and Copyright Counsel, Copyright Alliance. J.D. 2010, Chicago-Kent College of Law; B.A. 2001, Shippensburg University. All opinions are those of the author and should not be attributed to any current or past employer. The research and writing of this paper was supported by a Mark Twain Copyright Fellowship awarded by the Center for Protection of Intellectual Property through George Mason University School of Law. Thanks to Mark Schultz, Adam Mossoff, Raymond Nimmer, Eric Claeys, Bruce Kobayashi, Justin Hughes, David Newhoff, and my fellow Mark Twain fellows for their thoughtful insights and feedback on this article. 1 DC Comics v. Towle, 802 F.3d 1012, 1027 (9th Cir. 2015). 2 Graeme McMillan, DC Entertainment To Give Classic Batman Writer Credit in ‘Gotham’ and ‘Batman v Superman’ (Exclusive), HOLLYWOOD REP. (Sept. 18, 2015, 9:41 AM), http://www.hollywood reporter.com/heat-vision/dc-entertainment-give-classic-batman-824572. 3 Andy Isaacson, How the Dark Knight Became Dark Again, ATLANTIC (July 17, 2012), http://www.theatlantic.com/entertainment/archive/2012/07/how-the-dark-knight-became-dark- again/259923/. 4 Julie E. Cohen, Creativity and Culture in Copyright Theory, 40 U.C. DAVIS L. REV. 1151, 1193 (2007) (“Critics of copyright maximalism have long argued that overly rigid control of access to and manipulation of cultural goods stifles artistic and cultural innovation, and a growing body of anecdotal evidence suggests that copyright’s ‘permission culture’ does exert a substantial constraining influence on creative practice.”); see also Amy B. Cohen, When Does a Work Infringe the Derivative Works Right of a Copyright Owner?, 17 CARDOZO ARTS & ENT. L.J. 623, 646 (1999) (“[T]here is significant com- mentary criticizing in economic and policy terms an overly broad derivative works right.”); Robert S. Boynton, The Tyranny of Copyright?, N.Y. TIMES MAG. (Jan. 25, 2004), http://www.nytimes.com /2004/01/25/magazine/the-tyranny-of-copyright.html?_r=0. 838 GEO. MASON L. REV. [VOL. 23:4 have advanced numerous proposals intended to correct this, and policymak- ers are increasingly looking to see if changes in copyright law are needed to remove perceived barriers and promote cumulative creativity and “remix.”5 But is it really the case that copyright stifles creativity? Contrary to criticisms, copyright law recognizes that “[t]he thoughts of every man are, more or less, a combination of what other men have thought and ex- pressed.”6 Creators and copyright owners exercise their derivative works right through licensing to create a robust and thriving marketplace for “re- mixes”—new works explicitly built on existing works that include every- thing from adaptations, to sequels, tie-ins, mashups, crossovers, and be- yond. At the same time, authors are free to draw inspiration from, and re- mix ideas of, existing works through the idea/expression dichotomy. It is important for both courts and policymakers to recognize that the existing legal framework for remixes enables production of new works that is both economically significant and culturally relevant. Any legal changes to ad- dress concerns at the margins could upset this core. This Article provides an important counter to the “remix critique” by surveying the landscape of remix made within the copyright marketplace. The focus is primarily on narrative works based on existing works in the entertainment industries—film and television studios, book publishers, rec- ord labels, and video game publishers—that produce and distribute creative works to mass markets. Part I looks at both the doctrinal and theoretical background involved. Part II examines the development and content of the “remix critique” as well as current policy developments concerning remix. Part III surveys the landscape of licensing of derivative works such as adap- tations, sequels, spin-offs, and mashups to provide a better idea of the scope and operation of authorized remix. Part IV explores the benefits derived under the current legal framework and responds to major elements of the remix critique. Finally, Part V looks at some of the policy and legal impli- cations that follow from this discussion. I. BACKGROUND Copyright serves as one of the economic foundations and building blocks for a number of industries, including book publishers, film and tele- vision studios, music publishers and record labels, as well as individuals like photographers, graphic artists, songwriters, recording artists, authors, etc. In the United States, these industries and individuals contributed over $1.1 trillion to the U.S. GDP—6.71 percent of the economy—and directly 5 See infra Section II.A. 6 Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (No. 4436). 2016] LICENSE TO REMIX 839 employed 5.5 million employees in 2013.7 Setting aside software, the larg- est sectors relying on copyright are “recorded music; motion pictures, tele- vision and video; . [and] newspapers, books, and periodicals.”8 To give an idea of their relative sizes, the Bureau of Economic Analysis reports the value added in 2012 of motion pictures and sound recordings at $113.2 billion, broadcasting and telecommunications industries at $391.9 billion, and publishing (except Internet) at $191.5 billion.9 Licensing is central to the functioning of these industries. Rights are rarely sold or transferred outright to producers and distributors of expres- sive works.10 And supply chains from creation to distribution can be com- plex, rarely involving only a few participants. Copyright creates the legally recognizable interest that underlies such transactions and is currently gov- erned in the United States by the 1976 Copyright Act, as amended.11 Copy- right generally provides exclusive rights to authors of expressive works— books, films, music, photographs, software, etc.—once they are fixed in a tangible form.12 Under U.S. law, these rights include the rights: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; 7 STEPHEN E. SIWEK, COPYRIGHT INDUSTRIES IN THE U.S. ECONOMY: THE 2014 REPORT 2 (2014), http://www.iipa.com/pdf/2014CpyrtRptFull.PDF. 8 Id. at 15. 9 Id. at 22 tbl.B.1. 10 See ROB H. AFT & CHARLES-EDOUARD RENAULT, WORLD INTELL. PROP. ORG., FROM SCRIPT TO SCREEN: THE IMPORTANCE OF COPYRIGHT IN THE DISTRIBUTION OF FILMS 45 (2011), http:// www.wipo.int/edocs/pubdocs/en/copyright/950/wipo_pub_950.pdf; DAVID GREENSPAN ET AL., WORLD INTELL. PROP. ORG., MASTERING THE GAME: BUSINESS AND LEGAL ISSUES FOR VIDEO GAME DEVELOPERS 108 (2013), http://www.wipo.int/edocs/pubdocs/en/copyright/959/wipo_pub_959.pdf (“Usually, a developer or publisher . may want to incorporate licensed property into their game under a number of different scenarios including: (1) basing their game on another party’s intellectual property (i.e., a game based on a movie or book or a toy); and/or (2) incorporating into their game intellectual property owned or controlled by another party to provide more realism for the game player.” (footnotes omitted)). 11 17 U.S.C. §§ 101-1332 (2012). 12 Id. § 102(a) (“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pan- tomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”). Note that the definitions of these categories are broad. See H.R. REP. NO. 94-1476, at 53 (1976); see also Burrow-Giles Litho- graphic Co. v. Sarony, 111 U.S. 53, 58 (1884) (describing copyright generally as “the exclusive right of a man to the production of his own genius or intellect”). 840 GEO. MASON L. REV. [VOL. 23:4 (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.13 The right to prepare derivative works is at the heart of remix.