I think flouting the Joker’s copyright is funny, 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 copyright is broken.

I’m not talking about Joker: Folie à Deux, the officially sanctioned sequel to the Todd Phillips film Joker. I’m talking about The People’s Joker, a crowdfunded Toronto International Film Festival selection that was pulled at the last minute, thanks to unspecified “rights issues.” The People’s Joker is (as far as I can tell) an extremely loose retelling of the Batman villain’s origin story, reinterpreting the Joker as a trans woman trying to break into the mob-like world of Gotham’s stand-up comedy scene. Its trailer describes it as “an illegal comic book movie,” but its creators more seriously defend it as an unauthorized but legal parody of DC’s original character, to the point of (apparently) giving their lawyer a full-screen credit.

I have no idea if The People’s Joker is a good movie — thanks to its cancelation, my colleague Andrew Webster couldn’t catch it at TIFF. The piece is clearly a provocation designed to thumb its nose at DC’s copyright, and DC parent company Warner Bros. hasn’t said whether it actually ordered TIFF to cancel showings — it’s possible the festival balked or even that Drew did it herself. But despite all that, one thing is very clear: outside a tiny number of corporate behemoths, virtually nobody benefits from shutting down The People’s Joker — not the filmmakers, not the public, 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 truism: that beloved fictional universes are a shared modern mythology, and people draw meaning from them the way that artists once reinterpreted Greek myths or painted Biblical figures. As Drew has put it, “if the purpose of myth is to learn about the human experience and grow and also chart your progress — the hero’s journey and all that stuff — let’s actually do that earnestly with these characters.”

I’m not touching the “modern myths” argument (if you’re not a comics legend like Grant Morrison, comparing 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. Drew, for instance, describes watching a kiss in Batman Forever and realizing she wanted to be the film’s female lead, not its male hero.

It’s incredibly natural for people to build on stories and characters that helped form them as human beings, like using a newly coined word in your own turn of phrase. That’s especially true as entire generations share the experience of growing up with these characters. (The Joker is 82 years old, which is far 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 talk about a fight far 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 isn’t just about laws and disclaimers! It’s about what culture itself is supposed to be.

In his book Common as Air, author Lewis Hyde describes two basic ways to look at culture. The first view says that it should work like private land. When an artist makes something, it comes with fundamental, nearly unlimited ownership rights. The owner can profit from it and control who has access to it, preventing people from using it in ways they dislike. Any limits should be narrow and grudging exceptions for the common good, the equivalent of not being able to dump toxic waste in your backyard. And violating those rules is simple, craven theft.

There are two ways to look at art: as a private possession or a public good

The second view is that culture is (as the book’s title suggests) a common good. Artists aren’t working in a vacuum, and art gets better when people can fearlessly respond to each other’s ideas instead of asking permission. It’s useful to have a temporary period where artists can maintain control over their work because it helps support them financially and encourages them to make more of it. But the ultimate goal is that art should pass into the public domain and that it should be part of a conversation, with people repurposing it to create their own work.

From the first perspective, copyright is a natural law that protects art from the people who experience it. From the second, it’s a tool that’s supposed to make the experience better — and that should be fixed if it isn’t.

Modern US copyright law is the kind with those grudging, narrow exceptions. Works are very slowly passing into the public domain, but only after a 20-year freeze that finally ended in 2019. (When stories are in the public domain, they’re still sandbagged by confusing, specious suits over things like whether public domain Sherlock Holmes is allowed to have feelings.) There’s an exemption for fair use of copyrighted works, which is supposed to let people transform or comment on work. But its design requires artists to risk a lawsuit based on a case-by-case weighing of four nebulous legal pillars.

This uncertainty has created widely accepted rules of thumb that aren’t even accurate, like the idea that fair use only protects noncommercial art — something that, in a system supposedly designed to make sure artists get paid, has left many assuming they can only work for free. That same uncertainty leaves projects like The People’s Joker waiting for a takedown notice and potential legal fight. In other cases, it makes intermediary platforms overshoot the mark, preferring to shut down fair-use work rather than risk infringement.

Modern copyright law is a world of grudging, narrow exceptions

You can still make good, interesting work under this system. Many artists have taken refuge in fair use exceptions, particularly allowances for parody and commentary. Some copyright holders explicitly allow fan works or avoid attacking things like noncommercial fanfiction. Sometimes rightsholders will back down after getting pushback, as we’ve seen with the Organization for Transformative Works, operators of the Archive of Our Own and a legal defense project for fan creators. But this creative work is happening in spite of copyright laws, not because of them.

In cases like The People’s Joker, who exactly is the system serving? It’s not the original creators of classic comic book characters, most of whom are dead. Many writers and artists sold away their rights to Marvel and DC on a work-for-hire basis, so their surviving family members often aren’t seeing any money either, despite decades of lawsuits. (It’s also debatable how many generations should profit off one artist’s work.) And a new generation of artists can’t freely build on the stories they grew up with — after the companies that hold the rights, like Disney, founded their empires on the backs of public domain works like Snow White.

One common justification is that copyright helps stop hateful, offensive spins on beloved stories. (This is reflected in some new attempts at unorthodox copyright licenses, like Andreessen Horowitz’s crypto copyright system, which lets creators revoke the license if the art is used for hate speech.) But in the long term, this means copyright is just censorship with extra steps. It suggests granting a near-perpetual license to control how people engage with culture long after the creators who have any personal stake in it are gone. And if you think copyright stops artists from seeing awful adaptations of their work, Alan Moore would like a word with you.

I don’t have a precise solution to this problem, and it’s an admittedly complex one. I’m not sure exactly how long a copyright term should be to balance artists’ welfare with a cultural commons. I’m not sure exactly what a clearer, more generous fair use system should encompass. (Hyde’s book has some compelling proposals.) But if a law meant to protect artists is leaving weird independent movies in limbo to protect a corporate brand, something has gone deeply wrong.

Originally appeared on: TheSpuzz