Lou Lumenick, the cheif film critic for the New York Post, recently blogged about a Zane Grey film called “To the Last Man”.  The majority of the article is analysis and praise of this obscure 1930’s Paramount film, but he also discusses the “Public Domain Hell”.  His discussion of the Public Domain is brief, but it is raises interesting questions about the nature of a (hypothetical) healthy Pulic Domain.

In the second paragraph of his post, Lumenick laments that “a significant number of titles that have fallen into that gray area many film buffs call Public Domain Hell.”  He doesn’t elaborate on that statement, perhaps because most of his readership fall into the “film buff” demographic.  Later in the post, however, Lumenick elaborates.  He explains that when a film enters the Public Domain it usually doesn’t get restored.  The film can be legally copied, so there are a lot of poor qualities floating around.  The studios can’t justify the cost of restoration, because once they restored the film it could be legally copied and distributed.  Lumenick’s interest is apparently in having high quality prints of obscure movies available, not having those films open to remix and reinterpretation.  Films that enter the Public Domain don’t get restored, so Lumenick would apparently prefer that they don’t enter the Public Domain.  Lumenick praises Paramount’s ability to reclaim the copyright to “It’s A Wonderful Life” and offer exclusive access to NBC, which justified the “considerable cost of restoration”.  Lumenick’s doesn’t analyze the merit of the Public Domain, he simply laments the fact that films in the Public Domain rarely get restored.  His post made me wonder how a healthy Public Domain would function.  If works were routinely entering the Public Domain, which ones would we value enough to restore?  Would we restore any of them?

It seems that the Public Domain would preserve those films that the public values.  If the public has access to them, and values them, then they can be catalogued and organized and protected from abandonment.  That may apply to the relatively easy process of scanning books, but it may not apply to films.  Scanning books is relatively cheap and yields a high quality copy.  The process of restoring a 35mm print is tedious and expensive, which makes it difficult to crowd source the way book scanning can be.  Perhaps the films would enter the Public Domain, only to be lost due to lack of preservation.

Lumenick argues that Paramount won’t restore films that are in the Public Domain because once they released the DVD of the remastered “To the Last Man”, it could be copied endlessly.  However, if Paramount, or anyone else, instead restored the film and made additional 35mm prints, they could still sell the physical prints to film buffs and museums.  This apparently is not enough incentive to restore an obscure film like “To the Last Man”, but what if the film in question was a Paramount classic like Hitchcock’s “Rear Window”? (interstingly, ownership of most of Hitchcock’s films, with the exception of Psycho, reverted back to him) If “Rear Window” had entered the Public Domain, and no high quality copies were available, would someone have restored it?  If Paramount hadn’t “rescued ‘It’s a Wonderful Life’ from PD Hell”, would it ever have been restored?  If works entered the PD on a regular basis, who would preserve them?  Would it be econcomical to preserve them?  Would we gain access to thier intellectual property only to lose them to physical degregation?

I first stumbled across the concept of ‘crowdfunding’ in the form of the site Kickstarter, a “new way to fund creative ideas and ambitious endeavors.” There are many similar sites (Fundable [unfortunately now closed], SellABand, Kachingle, and a host of others), all of which raise small amounts of money from large numbers of donors to encourage creation – art projects, albums, websites, and more. This method comes in varying flavors of generosity – users can give money in return for a future stake in the creative product, rewards designated by the creator, or simply a nice warm fuzzy feeling. This practice is similar to, say, a radio station pledge drive, but the powers of the internet have vastly redefined the scale, making it possible for individuals with great ideas to raise capital in order to create. In this way, it’s similar to the (super-old) idea of artistic patronage, but redefined and democratized.

In “The Public Domain,” Boyle relates Thomas Macaulay’s opinion that there are only two ways to remunerate authors: copyright and patronage. Macaulay rejects patronage out of hand, declaring that a system in which creation is subject to the whims of the elite is “fatal to the integrity and the independence” of the artist. The notion of crowdsourcing this patronage likely never occurred to Macaulay, as the technology to enable such a system has only recently become viable, but I think it presents an interesting and attractive third alternative.

Under the crowdfunding model, funding comes from people who believe in the potential of an idea to be made into a creative product; the implication is that a successful and popular work provides incentive to fund the next. It is a sort of patronage, but turns the system around a bit – rather than a patron directly commissioning a work, the creator ‘commissions’ their patrons – the ultimate self-promotion. If a certain goal isn’t met, the creator’s project may not get completed. What appeals to me about Kickstarter’s system, in particular, is that it personalizes a donor’s stake by offering rewards of low cost to the creator, but potentially high value for the donor (a customized song, a postcard, a signed print), giving it features of a barter system.

On his blog, Paul Watson discusses the basic features of a successful crowdfunding endeavor: 1) Build a base of true fans. 2) Free-up the abundant; charge for the scarce. 3) Continually engage with people who like your work. This is a fairly simple system – hard to make work in practice, of course, but so are current methods of selling intellectual property. In this model, those who pay do so because they care about your work and are invested in its quality, not because they value it only as a commodity.

Now, of course, to the public domain implications of this model: under a system where this were the norm for distribution, copyright as we know it would cease to be necessary; the public domain might even become the only domain. All creative works could exist in a commons, a shared cloud of resources for the entertainment, education, and inspiration of the masses – and material to be incorporated into the next generation of works. With artists preemptively compensated for their work, they wouldn’t have to carefully guard its distribution, but rather spread it to as large an audience as possible. Kickstarter’s multiple levels for support would act as a form of price discrimination, with high-level donors receiving non-monetary rewards for subsidizing a work’s availability to moochers. (Though the artist could, after being funded, offer the product through a traditional marketplace as well.) The only copyright measures necessary under these circumstances are along the lines of the ones those suggested by the Budapest Open Access initiative: control over the integrity of a work, and the right to be properly acknowledged (like the Creative Commons attribution license).

The parallel of this mode of distribution with the Open Access initiative is an apt one, if we consider creative products to inherently be a form of knowledge. These products are knowledge in that they increase our cultural literacy; they benefit both the individual, in providing a shared currency for communication and future creativity, and the public, in increasing collaboration, innovation, and understanding of the world.

I’m writing as an artist, not a lawyer or economist, so I realize that this system might not make sense to everyone. I would personally be satisfied with having enough funding to complete projects that interest me, and I think I could work in such a model. Many people (scientists, academics, even some artists) currently receive funding from public and private organizations to do work that is deemed important; it seems perfectly reasonable to enable people to give money directly to creators, bypassing largely unnecessary intermediaries and stimulating creation directly. If, as Boyle says, the public domain is undervalued, expanding it as much as possible seems to be the best thing we could do, for the greatest public good – not just wealth and ownership, but freedom to learn, use, express, and create.

I admit, many issues, including piracy, would still have to be resolved, but I think it’s significant that this system would put more power in the hands of an individual to acquire the resources necessary to sustain their creativity. One problem in the cultural landscape is production-end entities conditioning the viewer/listener/audience  to consume particular types of products based on their spectacle, popularity, etc. Whereas I have no guilt (though maybe a little shame) about downloading 2012 via torrent, I would willingly pay to support intriguing projects with the assurance that my money is going directly to the creator. The sales experiments of artists with established fan-bases such as Radiohead and Girl Talk show this model can work; crowdfunding opens it to unknown artists, with the above sites allowing new talent to be discovered.

The current prevalence of appropriating, recycling, adopting (or what have you) of copyrighted cultural materials points to both the necessity and inevitability of that use for modern discourse. Landes and Posner are correct that the public domain provides a “source of free inputs” for creation, but they fail to see that, in our digital age, anything and everything must be fair game. Crowdfunding of course won’t come close to solving everything, but I think it could help.