George Lucas has released DVD versions of Star Wars, The Empire Strikes Back, and Return of the Jedi, and some critics are carping about whether the poor man just can’t leave well enough alone. He tinkers here, tinkers there, and tinkers all the time, changing voices and images, even adding dialogue. I remember 1977 and the original Star Wars and standing in lines that stretched around city blocks, and the DVD release (and the earlier videotape release, a few years ag0). This isn’t that movie.
Part of the problem is cultural. Are these “Lucas’s movies,” so that he can do with them as he pleases? Or are they “our” movies, so that George is messing with our memories? They’re both, of course, which is why there is no end to this particular argument.
The more interesting part of the problem is conceptual. The fact that Lucas can’t leave well enough alone tells me something about what copyright law tries to grasp in distinguishing between the author’s “work of authorship” and the “tangible medium of expression” in which a work protected by copyright “subsists.” The ever-evolving Star Wars shows me that the “work” here exists, in its complete form, only in Lucas’s imagination. The “fixed” form, whether that is film, or videotape, or DVD, is merely an exercise in recording a snapshot of George’s brain. It’s copyright as Heisenberg: Lucas can fix the location of the film, or the direction of the film, but not both at once.
In this respect, Lucas is emblematic of a lot of “authorship,” not in the worshipful Romantic sense, but in the sense that this is really how a lot of creative people think and behave. Somewhere recently, I read a quotation in which a writer said, in effect, that he (or she?) never stops writing; at some point, the publisher merely comes and takes the manuscript away.
Copyright law looks at “fixation” in two entirely different ways. In one sense, “fixation” doesn’t mean, literally, related to some tangible form; a creative work is connected, literally, to the tangible form of the author’s brain, yet that kind of fixation doesn’t count. Fixation is a crude proxy for other kinds of things that the law cares about and wants to reinforce, like ease of access and ease of distribution, both of which are usually more important to readers and consumers than to authors. But in many contexts, and particularly in connection with digital technology and computer software, that sense has been overtaken by a literal reading of “fixation” (and of the related concept, “reproduction” in “copies”), so that digital data is “fixed” in computer memory for legal purposes — because there is some physical connection between the data and the memory device — even though that kind of “fixation” doesn’t usually give us the same kinds of consumer benefits that “fixation as proxy” usually does.
Lucasfilm has a track record of being extremely aggressive in enforcing copyright and trademark interests in the Star Wars franchise, so much so that there is an odd dualism at work: the commercial side is happy to exploit any and all revenue-generating meanings of “fixation”; the creative side trusts the imaginative version of authorship and doesn’t care so much about “fixation.”
The refinement of digital tools means that this sort of disjunction is popping up all over the place. File sharing, of course, is the other great example of the moment. Is copyright law witnessing a divorce between its commercial side and its imaginative side? If so, what happens to the children?