The first death is in the heart, Harry
September 8, 2023 4:27 PM Subscribe
The case of Disco Elysium illustrates the shortcomings of IP rights as protection for artists. Consequently, it contains a lot of lessons for the labor movement when it comes to the arts, and serves as a reminder that creative workers are, at the end of the day, workers.
But this is not just an academic exercise. It’s a human story about the intimate consequences of capitalist exploitation. “I got my soul ripped out of me,” Kurvitz told me over Zoom in April of 2023. “I got my skull cracked open and my brain lifted out of it by a fifty-five-year-old financial criminal.”
(text from article)
The case of Disco Elysium illustrates the shortcomings of IP rights as protection for artists.
Hrrrm. The case of Disco Elysium is extremely weird and probably not a great thing to generalize from.
IP rights are usually uncritically accepted as the way artists with good ideas maintain control over how those ideas are used and the value they produce. Kurvitz leased IP to ZA/UM for the making of the game, and yet it is he who stands accused of intending to steal IP from the company. Even if Kurvitz wins his day in court, IP rights did not protect him.
The reason is twofold. First, IP as a concept has never actually been about protecting workers. In fact, today it’s mostly used to do things like copyright species of corn to extract money from indigenous South Americans, or making sure no one else can replicate patented lifesaving vaccines. Second, IP fights drag struggle out of the workplace, where things actually happen, and into the courts, where amends for things that already happened are made or are not made.
Yeah, um, no. IP is the how and why of how creative people get paid. Do away with it and… nobody gets paid. That’s not actually a positive outcome.
Unions are good though.
If IP rights can’t protect creative workers, is there anything that can? The answer is simple: creative workers, like all other workers, need to take collective action.
Not entirely sure how that would have helped in the Disco Elysium case though.
posted by Artw at 8:30 PM on September 8, 2023 [10 favorites]
Hrrrm. The case of Disco Elysium is extremely weird and probably not a great thing to generalize from.
IP rights are usually uncritically accepted as the way artists with good ideas maintain control over how those ideas are used and the value they produce. Kurvitz leased IP to ZA/UM for the making of the game, and yet it is he who stands accused of intending to steal IP from the company. Even if Kurvitz wins his day in court, IP rights did not protect him.
The reason is twofold. First, IP as a concept has never actually been about protecting workers. In fact, today it’s mostly used to do things like copyright species of corn to extract money from indigenous South Americans, or making sure no one else can replicate patented lifesaving vaccines. Second, IP fights drag struggle out of the workplace, where things actually happen, and into the courts, where amends for things that already happened are made or are not made.
Yeah, um, no. IP is the how and why of how creative people get paid. Do away with it and… nobody gets paid. That’s not actually a positive outcome.
Unions are good though.
If IP rights can’t protect creative workers, is there anything that can? The answer is simple: creative workers, like all other workers, need to take collective action.
Not entirely sure how that would have helped in the Disco Elysium case though.
posted by Artw at 8:30 PM on September 8, 2023 [10 favorites]
I think it’s hard to come up with an alternate history that doesn’t lead to what happened, unless the ownership of the original company had been different.
If you work in a creative field, unless you work solo, own your own company, or work in an employee owned organization, you don’t own the work, and proper treatment of your own thoughts and actions is entirely at the whims of the owners you work for. This is true of music, movies, journalism, games… and there are so many cautionary stories.
posted by q*ben at 8:49 PM on September 8, 2023 [3 favorites]
If you work in a creative field, unless you work solo, own your own company, or work in an employee owned organization, you don’t own the work, and proper treatment of your own thoughts and actions is entirely at the whims of the owners you work for. This is true of music, movies, journalism, games… and there are so many cautionary stories.
posted by q*ben at 8:49 PM on September 8, 2023 [3 favorites]
Yeah, um, no. IP is the how and why of how creative people get paid.
The concept of work for hire would like a word with you. Maybe the ghost of Jack Kirby too.
posted by fnerg at 12:15 AM on September 9, 2023 [9 favorites]
The concept of work for hire would like a word with you. Maybe the ghost of Jack Kirby too.
posted by fnerg at 12:15 AM on September 9, 2023 [9 favorites]
“A typical example of the coverage of the controversy is a sprawling two-and-a-half-hour documentary recently released on YouTube by media group People Make Games (PMG). The first forty-five minutes paint a pretty damning picture of Kompus and his associates who took over ZA/UM. The video then proceeds to give a lot of airtime to complaints about Hindpere, Rostov, and Kurvitz. These include allegations that after the video game was initially released, they took too much time off; that Kurvitz gave harsh feedback to writers; and that there was confusion over deadlines, workflows, and plans for the future.”
It says something about where Jacobin is at these days is that it takes the side of one set of bosses against another set of bosses and entirely dismisses the concerns of the workers.
posted by Kattullus at 12:41 AM on September 9, 2023 [12 favorites]
It says something about where Jacobin is at these days is that it takes the side of one set of bosses against another set of bosses and entirely dismisses the concerns of the workers.
posted by Kattullus at 12:41 AM on September 9, 2023 [12 favorites]
The concept of work for hire would like a word with you. Maybe the ghost of Jack Kirby too.
Have done both work for hire and creator owned and been paid for both, cheers.
posted by Artw at 1:08 AM on September 9, 2023 [5 favorites]
Have done both work for hire and creator owned and been paid for both, cheers.
posted by Artw at 1:08 AM on September 9, 2023 [5 favorites]
> It says something about where Jacobin is at these days is that it takes the side of one set of bosses against another set of bosses and entirely dismisses the concerns of the workers.
Just like the original jacobins!
posted by I-Write-Essays at 3:21 AM on September 9, 2023 [10 favorites]
Just like the original jacobins!
posted by I-Write-Essays at 3:21 AM on September 9, 2023 [10 favorites]
Yeah, um, no. IP is the how and why of how creative people get paid. Do away with it and… nobody gets paid. That’s not actually a positive outcome.
IP law has a much more nebulous connection to one's income the more and more small, independent artist you are. I have done a little freelance digital illustration work from time to time. IP law has almost nothing to do whether i get paid. I got paid because someone wanted an image to exist in the world that didn't already. It's the digital age. Copying is cheap. Enforcement is expensive. Small players don't have the resources for the latter.
Spending $35 registering the copyright for each work I made would take a substantial chunk of what I made from it. And without registering the copyright, yes it technically exists, but it's basically worthless. You don't have full protection. You can only recover damages you can prove, so it's not really worth it to pursue a case unless the copyright registration goes through by the deadline. And for a DMCA takedown notice, all someone has to do to make it legal to keep something up is write a letter saying "nuh-uh, prove it" and you have to show a registered copyright faster tan you can register it.
Now the DMCA is an interesting beast. Because the centralization of the internet means that when one is acting under copyright law, what is actually happening is that you are operating under the rules of sites that are worried about being sued by big, IP holding companies, not individual creatives. So on the plus side, you can occasionally get stuff taken down if someone else posts your stuff, yay! On the other hand, the rules are designed to avoid lawsuits made by people who can be rather... grasping in their interpretation of law, so if you are a small time creative trying to do stuff with media criticism or just about anything that requires fair use, the capriciousness of the copyright detection algorithm can be a major pain.
Ultimately what a lot of small time creators are in the business of these days is not selling copies, exactly. What they are doing is building an audience who wants more stuff like the stuff you make and is willing to pay money for it. Now this can be very explicit, as with Patreon or Kickstarter or the like, but it doesn't have to be. When people are buying a print, or a pin, or an album, or a t-shirt by and large these days they aren't really buying it for the legal right, or the physical object, they are buying it because they want merch from an artist they really like. They could, with very few consequences, download pirated copies and/or use the digital image on one of the many, many print on demand sites to get the item they want. No one's gonna notice, no one's gonna check. Not if you have less resources than Nintendo or Disney at any rate. But that's not the point. That's not what people are giving money for. They want this thing to exist and more things like it to exist. That's why they pay you.
Really, the only thing copyright law itself is useful for, for independent creatives, is to stop bigger players from swooping in and claiming your work as their own. And if it can't even do that, as in the article, what good is it?
posted by Zalzidrax at 5:46 AM on September 9, 2023 [21 favorites]
IP law has a much more nebulous connection to one's income the more and more small, independent artist you are. I have done a little freelance digital illustration work from time to time. IP law has almost nothing to do whether i get paid. I got paid because someone wanted an image to exist in the world that didn't already. It's the digital age. Copying is cheap. Enforcement is expensive. Small players don't have the resources for the latter.
Spending $35 registering the copyright for each work I made would take a substantial chunk of what I made from it. And without registering the copyright, yes it technically exists, but it's basically worthless. You don't have full protection. You can only recover damages you can prove, so it's not really worth it to pursue a case unless the copyright registration goes through by the deadline. And for a DMCA takedown notice, all someone has to do to make it legal to keep something up is write a letter saying "nuh-uh, prove it" and you have to show a registered copyright faster tan you can register it.
Now the DMCA is an interesting beast. Because the centralization of the internet means that when one is acting under copyright law, what is actually happening is that you are operating under the rules of sites that are worried about being sued by big, IP holding companies, not individual creatives. So on the plus side, you can occasionally get stuff taken down if someone else posts your stuff, yay! On the other hand, the rules are designed to avoid lawsuits made by people who can be rather... grasping in their interpretation of law, so if you are a small time creative trying to do stuff with media criticism or just about anything that requires fair use, the capriciousness of the copyright detection algorithm can be a major pain.
Ultimately what a lot of small time creators are in the business of these days is not selling copies, exactly. What they are doing is building an audience who wants more stuff like the stuff you make and is willing to pay money for it. Now this can be very explicit, as with Patreon or Kickstarter or the like, but it doesn't have to be. When people are buying a print, or a pin, or an album, or a t-shirt by and large these days they aren't really buying it for the legal right, or the physical object, they are buying it because they want merch from an artist they really like. They could, with very few consequences, download pirated copies and/or use the digital image on one of the many, many print on demand sites to get the item they want. No one's gonna notice, no one's gonna check. Not if you have less resources than Nintendo or Disney at any rate. But that's not the point. That's not what people are giving money for. They want this thing to exist and more things like it to exist. That's why they pay you.
Really, the only thing copyright law itself is useful for, for independent creatives, is to stop bigger players from swooping in and claiming your work as their own. And if it can't even do that, as in the article, what good is it?
posted by Zalzidrax at 5:46 AM on September 9, 2023 [21 favorites]
As in the weird and complex and not particularly relevant to most people case in the article.
posted by Artw at 7:10 AM on September 9, 2023
posted by Artw at 7:10 AM on September 9, 2023
I think the one of the key points is here
...... IP fights drag struggle out of the workplace, where things actually happen, and into the courts, where amends for things that already happened are made or are not made.
If IP rights can’t protect creative workers, is there anything that can? The answer is simple: creative workers, like all other workers, need to take collective action.
Too often the exercise of rights is almost as onerous as getting them in the first place.
Better to make it so it's harder to screw someone over in the first place.
posted by lalochezia at 8:09 AM on September 9, 2023
...... IP fights drag struggle out of the workplace, where things actually happen, and into the courts, where amends for things that already happened are made or are not made.
If IP rights can’t protect creative workers, is there anything that can? The answer is simple: creative workers, like all other workers, need to take collective action.
Too often the exercise of rights is almost as onerous as getting them in the first place.
Better to make it so it's harder to screw someone over in the first place.
posted by lalochezia at 8:09 AM on September 9, 2023
Ultimately what a lot of small time creators are in the business of these days is not selling copies, exactly. What they are doing is building an audience who wants more stuff like the stuff you make and is willing to pay money for it.
Kickstarter and patreon really changed my relationship with products, for sure. Items seem so intangible, so fungible. It boggles my mind that some IP can be worth as much as it is. All mickey mouse does is use up shelf space that could be filled by more interesting, relevant, and personalized content. Corporate IP is theft of creativity from society.
posted by rebent at 11:23 AM on September 9, 2023 [3 favorites]
Kickstarter and patreon really changed my relationship with products, for sure. Items seem so intangible, so fungible. It boggles my mind that some IP can be worth as much as it is. All mickey mouse does is use up shelf space that could be filled by more interesting, relevant, and personalized content. Corporate IP is theft of creativity from society.
posted by rebent at 11:23 AM on September 9, 2023 [3 favorites]
Man, Jacobin… and that this is written by a DSA kommissar ("director of political education") just kinda makes the conclusions formulaic.
IP rights are a liberalist approach to securing compensation under capitalism for non-tangible value — of course they're subsumed under the general complaints about capitalism as a whole. But just declaring that they're mostly used to exploit indigenous corn doesn't actually make that true, and reveals a pretty simplistic view of the economics of non-tangible goods (which, to be fair, Marx had such a simplistic view of non-tangible value that he basically didn't recognize how it undercut his argument about the inevitability of shrinking profits that would lead to the collapse of capitalism).
Anything that's based on a rights-framed approach to capitalism is going to be unsatisfying to socialists, because the underlying notion of both property rights and individualistic liberties are unsatisfying — often for pretty good reasons.
And I guess we can be glad of the intellectual diversity within Jacobin that they're willing to publish a piece with a messianic view of both workplace and trade unionism, but it's frustrating to see what could have been a more interesting story basically crash upon the rocks of ideological priors — 'I would simply use workplace collective action' is deemed sufficient, with a tangential description of a different collectivist studio, rather than any actual exploration of the implications for that approach, especially when the complaints about IP are systemic, meaning they're unlikely to be effectively met by small bands of chill developers making indie projects. I dunno, maybe the author is too young to remember the repeated hype and hope over punk/indie/DIY music sinking the big labels, but even small bands should probably spend at least a little time thinking through how their rights work.
Maybe I'm just allergic to articles that basically say 'This has been described as a complicated, messy situation, but it's actually simple and aligns with my prior ideological commitments.'
What would a more effective IP regime look like? Well, you'd probably have to start by getting over the weird reflexive aesthetics of localism that a certain sector of the online left prefers, and have an honest appraisal of practical power to begin with. One of the repeated complaints, in the article and in this thread, is about how IP only works for more powerful entities — but while all developed states are, to my knowledge, signatories to Berne, there's nothing stopping states, which are the only entities really capable of opposing private capitalist power, from working to ensure both respect for, if not rights, at least the entitlements and incentives for creative work, and implementing both methods for defending those incentives and compensating creative work.
What does that look like in practice? Well, I bet you can name more Icelandic, Swedish, Danish — even Canadian — musicians than you'd predict on a per capita basis. State funding and promotion of cultural assets as a public good, and resources put toward preventing free-rider exploitation of creative work by capitalist vultures, while not a panacea, has been an effective strategy, with at least some of that otherwise privatized value returned to the state through taxes (while less effective than it used to be, the Canadian tax on blank CDs going to fund a general artist payment pool is a good approach, and taxes on internet access can acknowledge that at least some of the value of uncompensated creative work is being captured by internet providers).
There's no reason that the state shouldn't fund video game studios—complaints about state meddling in content creation aren't inherently more valid than the pretty obvious meddling from capitalist funding. It's not like endless DLC packs are the best and highest form of video game art possible.
posted by klangklangston at 11:58 AM on September 9, 2023 [11 favorites]
IP rights are a liberalist approach to securing compensation under capitalism for non-tangible value — of course they're subsumed under the general complaints about capitalism as a whole. But just declaring that they're mostly used to exploit indigenous corn doesn't actually make that true, and reveals a pretty simplistic view of the economics of non-tangible goods (which, to be fair, Marx had such a simplistic view of non-tangible value that he basically didn't recognize how it undercut his argument about the inevitability of shrinking profits that would lead to the collapse of capitalism).
Anything that's based on a rights-framed approach to capitalism is going to be unsatisfying to socialists, because the underlying notion of both property rights and individualistic liberties are unsatisfying — often for pretty good reasons.
And I guess we can be glad of the intellectual diversity within Jacobin that they're willing to publish a piece with a messianic view of both workplace and trade unionism, but it's frustrating to see what could have been a more interesting story basically crash upon the rocks of ideological priors — 'I would simply use workplace collective action' is deemed sufficient, with a tangential description of a different collectivist studio, rather than any actual exploration of the implications for that approach, especially when the complaints about IP are systemic, meaning they're unlikely to be effectively met by small bands of chill developers making indie projects. I dunno, maybe the author is too young to remember the repeated hype and hope over punk/indie/DIY music sinking the big labels, but even small bands should probably spend at least a little time thinking through how their rights work.
Maybe I'm just allergic to articles that basically say 'This has been described as a complicated, messy situation, but it's actually simple and aligns with my prior ideological commitments.'
What would a more effective IP regime look like? Well, you'd probably have to start by getting over the weird reflexive aesthetics of localism that a certain sector of the online left prefers, and have an honest appraisal of practical power to begin with. One of the repeated complaints, in the article and in this thread, is about how IP only works for more powerful entities — but while all developed states are, to my knowledge, signatories to Berne, there's nothing stopping states, which are the only entities really capable of opposing private capitalist power, from working to ensure both respect for, if not rights, at least the entitlements and incentives for creative work, and implementing both methods for defending those incentives and compensating creative work.
What does that look like in practice? Well, I bet you can name more Icelandic, Swedish, Danish — even Canadian — musicians than you'd predict on a per capita basis. State funding and promotion of cultural assets as a public good, and resources put toward preventing free-rider exploitation of creative work by capitalist vultures, while not a panacea, has been an effective strategy, with at least some of that otherwise privatized value returned to the state through taxes (while less effective than it used to be, the Canadian tax on blank CDs going to fund a general artist payment pool is a good approach, and taxes on internet access can acknowledge that at least some of the value of uncompensated creative work is being captured by internet providers).
There's no reason that the state shouldn't fund video game studios—complaints about state meddling in content creation aren't inherently more valid than the pretty obvious meddling from capitalist funding. It's not like endless DLC packs are the best and highest form of video game art possible.
posted by klangklangston at 11:58 AM on September 9, 2023 [11 favorites]
A typical example of the coverage of the controversy is a sprawling two-and-a-half-hour documentary recently released on YouTube by media group People Make Games (PMG). The first forty-five minutes paint a pretty damning picture of Kompus and his associates who took over ZA/UM. The video then proceeds to give a lot of airtime to complaints about Hindpere, Rostov, and Kurvitz. These include allegations that after the video game was initially released, they took too much time off; that Kurvitz gave harsh feedback to writers; and that there was confusion over deadlines, workflows, and plans for the future.
aka Previously.
posted by k3ninho at 7:06 AM on September 10, 2023
aka Previously.
posted by k3ninho at 7:06 AM on September 10, 2023
Another group of writers is suing OpenAI over copyright claims - Michael Chabon, David Henry Hwang, and other authors have filed a lawsuit against the maker of ChatGPT.
posted by Artw at 3:36 PM on September 11, 2023
posted by Artw at 3:36 PM on September 11, 2023
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