1.10.13 OH MICKEY

This article originally appeared in the 1.10.13 issue of Metroland

Techdirt this week highlights yet another pig move by the evil empire that is Disney.  Yes, the wonderful world of hypocrisy has reared its ugly head again, this time in refusing to allow the producers of the new Philip Glass opera about Walt Disney, The Perfect American, to utilize any of the iconic Disney characters in the opera.  The new work is loosely based on a novel written from the perspective of a fictitious and disgruntled Disney illustrator, and focuses on the last years of Walt Disney’s life.  Apparently the opera portrays Walt as a right-wing zealot, a racist, anti-Semite, etc., that is to say not a particularly nice guy, a portrayal which does have some basis in fact.  In any event, the producers asked to use some of Disney characters (Mickey, Goofy, etc. etc.) in the production and Disney said no.

            According to the UK paper The Guardian, approval had previously been sought for the entire production;  the producers submitted the libretto and interpreted Disney’s silence as a green light.  Which strikes me as weird.  Composer Glass reportedly was initially fearful to take on the project, afraid he’d get chewed up by the Disney legal jauggernaut.

           What everyone is worried about is the fact that Disney is among the world’s biggest intellectual property bullies.  Disney repeatedly uses the law and the courts, or the threat of the courts, to bring questionable, if not downright laughable, claims against those who dare to make fun of, have fun with, or to creatively reuse it’s “properties,” or even, as here, to comment on its “properties.”  And virtually every one of Disney’s victims is a LOT smaller than Disney and simply can’t afford a withering legal broadside, even if there’s nothing of substance behind it.

            What’s going on here?  My first question is why did the producers of The Perfect American think they needed Disney’s approval for any aspect of the production?  If we’re talking about copyright, isn’t this a classic case of fair use?  The opera, which not surprisingly is described as “surreal,” comments on Walt Disney and his dynasty by contrasting Disneycorp’s finely-cultivated image as a purveyor of childhood joy with Walt’s real or imagined douchebaggery.  Wouldn’t the creative use of some of Disney’s more iconic characters in this context be “transformative”?  Yes?  Would this act as a market replacement for the original characters?  Of course not.  Boink!  Fair use!

            And if we’re talking about trademark law, no one except the legendary “moron in a hurry” would think for a second that the opera was created by or even endorsed by Disneycorp.  No confusion, no trademark issues.

            And to think that Glass was afraid even to broach the subject.  Given that, is it likely he pulled some creative punches?

            So who suffers here, who loses?  We do.  Intellectual property laws are supposed to be for the good of society in general, and Disney uses these laws as a big stick for the sole good of its corporate shareholders, while suppressing the speech and creativity and freedom of the rest of us.  And that’s plain disgusting.

            Moving on.  The wonderfully nuts music blogger Bob Lefsetz went on one of his tirades this week, going directly at a topic we’ve danced around with here a couple of times: the death of the music album.  Face it, the “album” as a cogent pop music art form only existed for about 10 years, starting in 1967 with Sgt. Peppers, and  largely dying with the ascendancy of punk and new wave, both entirely singles-oriented genres.  The introduction of the CD in the mid-‘80’s only brought focus to the absurdity, as pop music artists struggled to come up with 75 minutes of music, for no other reason than there were 75 minutes to fill on a CD.  And with the widespread acceptance of MP3s and streaming services, the return to a singles-based world was complete.

            For new artists especially, the resources and time necessary to record a consistent full album can be daunting.   And to what end?   It strikes me that albums continue to be made only because of inertia, ego, and ignorance.  Fans and potential fans want to hear a song, not ten.  On their phones and on shuffle-play.  Does anyone sit down and listen to a pop music album start to finish anymore?  Are pop music albums even meant to be listened to start to finish?  Nope.  So the “album cycle,” with an act recording an album, touring, coming home and recording another album, is functionally dead, or will be very soon.

            If you think you’ve got the song, don’t sit on it while you try to spit-shine 10-12 more you don’t really believe in.  Get the sucker out there.  NOW.

Paul Rapp is an IP lawyer in the Bershires who can dance as well as he can walk.