Trust Busting Also Involves Reversing the Damage

Last month, the announcement that the Federal Trade Commission (FTC) would review tech giant Amazon’s proposed purchase of Hollywood studio MGM caused waves. The review is part of a broad antitrust investigation into the business practices of the online retailer that could possibly deny Amazon the ability to consummate the anticipated deal.

The possibility of the FTC actually blocking the acquisition was given a hefty deal of legitimacy after firebrand Lina Khan was recently appointed chairwoman of the FTC. An outspoken proponent of antitrust policies, Khan was an avid critic of the FTC’s decision in 2017 to allow Amazon to purchase Whole Foods. Already, under her first meeting as chairwoman, she opened the usually private meeting to the public and passed a group of measures to increase the agency’s ability to pursue action against corporations.

The problem is that, despite the FTC’s best efforts, the ills that plague the film and television industry will continue to exist. Even if the Amazon-MGM deal is dismantled, the studio would quickly be snatched up by one of Amazon’s competitors. Little would fundamentally change. MGM’s catalogue would simply be placed under the umbrella of another corporation that would churn out the same tired content as Amazon.

When Amazon’s former CEO, Jeff Bezos, said in a call with shareholders, “MGM has a vast, deep catalogue of much-beloved intellectual property, and with the talented people at MGM and the talented people at Amazon Studios, we can reimagine and develop that IP for the 21st century,” everybody knew what he meant. No radical reinvention will occur. The content will be the same sorts of remakes, reboots, and spin-offs of established franchises that have dominated the box office as of late. This philosophy is the same one that most other studios have already accepted, that using established franchises will always be a better bet than sticking their necks out for a new, original, and unproven property.

Established franchises already have dedicated fanbases that will turn out to see the newest installment in their favorite franchise, rain or shine, good or bad. The money saved on advertising and marketing is no joke. These film studios don’t have to convince anybody to come see their film. This put them ahead of the curve, so to say, as opposed to developing new intellectual property that requires much more heavy lifting to attract viewers.

A recent development that also plays into Hollywood’s calculus is the emergence of the global market in box office ticket sales. While globalization has helped bring foreign films to prominence in the US - such in the case of 2021 Best Picture Winner, Parasite - the same applies for the opposite. Remakes that flop with domestic markets have the opportunity now to succeed in foreign markets and audiences that haven’t seen the original. A copy and paste of a classic film might be trite and unimaginative to a western viewer, but new and fresh to a foreign viewer. The rise of foreign markets has all but guaranteed these films’ successes.

These incentives have caused procuring established franchises to be so profitable that Amazon was willing to overbid MGM’s suggested price tag of $5bn by around $3.5bn, swelling the price to nearly $8.5bn. This same philosophy caused Amazon to secure the television rights to the Lord of the Rings franchise in 2017, and is the reason why Disney works so hard to secure the rights to Spider-man. It seems that the future of entertainment lies in clinging desperately to the past.

While antitrust actions taken by the FTC can be promising and could lead to boosted competition, the fact remains newer franchises cannot properly compete with established ones. Many still-copyrighted properties have become so embedded into the zeitgeist that a work merely existing in the same genre as them conjures up comparisons. These comparisons are almost always negative and run the risk of deeming good media as mere rip-offs. These risks don’t come when using established franchises, whose new installment is practically guaranteed at the top of the box office - no matter how unimaginative it may be. The deck is stacked against new franchises and against innovation.

Thankfully, a revolutionary idea isn’t needed to solve the problem. Intellectual property isn’t meant to be held onto forever. Since the passing of the first copyright law in 1790, there has always been a collection of media available to everybody called the public domain, where intellectual property enters after its copyright term has ended. After time, the existing pool of entertainment is meant to refresh and fertilize the ground for new stories to be told. In the public domain, everybody is able to utilize the ideas of previous generations to create new and innovative stories. When it is in tune, the system allows creators time to reap the benefits of their creators while also ensuring that future creators get their time to shine.

The system of copyright expiration is out of balance. With a whopping 95 years of protection, and growing, intellectual property is all but guaranteed to outlive its creator. The cycle has intentionally been held in frost for a long time. From the years 1998 to 2019, no works entered the public domain, evidence of a lengthy plot to erode the foundations of the public domain.

From the inception of the first copyright law to 1978, copyright worked as intended. Intellectual property ascended to the public domain with no fuss, with 85% of copyrights not applying to receive the full 56 years they were guaranteed.

This changed when the deadline began to run up on Disney’s lovable mascot, Mickey Mouse. Mickey Mouse was and is undeniably the face of Disney and has been in over 130 films and has been printed on countless merchandise throughout the years. Mickey Mouse has made Disney billions, so they wouldn’t let their golden goose leave without a fight.

Thus, Disney began pouring money into lobbying efforts to keep “Steamboat Willie,” Mickey Mouse’s first appearance, from entering the public domain. This paid off in 1976 when Congress decided to update their copyrights laws to better conform with the European Union’s rules and, more importantly, add an extension of 25 years to copyright terms. Unsatisfied and certainly not shameful, this paid off a second time in 1997 when Congress added another 20 years of copyright protection, giving Mickey Mouse until 2023 til his black and white version enters the public domain.

It’s not just Mickey Mouse that’s been kept from the public domain. Before the copyright laws were tampered with, Dr. No, the first film in the Bond franchise, would have entered the public domain in 2019. If James Bond were partially out the door of the MGM studio, Amazon certainly would have been as well. Instead, 007 will have to wait til 2058 to make his great escape.

No matter how ambitious the FTC intends to become, they’re limited to enforcing the laws that are currently in place. No matter how many mergers they’re able block, the dilemma that emerges is when the laws themselves are written to perpetuate monopolistic power. Monopolies are perpetuated when officials ignore the laws that limit their power while following the ones that amplify it.

Solving this issue requires rewriting the laws. And while the six bills currently moving their way through the house are a good start, all of them apply new penalties to monopolies rather than repeal the laws that reinforce their power.

While this issue may not be as pressing or as harmful as many other issues created by monopolies such as intrusions into privacy or worker exploitation, it is still important. Art and culture often get thrown to the wayside in favor of issues that have consequences that are easier to grasp, but that doesn’t mean that they should be ignored or forgotten. Monopolies harm us all in big and small ways.

With the way that the current system works, film and television property isn’t given to the person or entity that can make the best end product. It is kept by whoever can squeeze the most money out of it, quality be damned. Disney brought old stories and made them new, and those stories they revitalized so long ago are now as stale as the dusty tomes and wives tales they came from. Art and media thrive when they are allowed the breathing room to do so. A revolving door of different writers, directors, and actors is no match to an entire society, unrestricted by money or status, twisting, rewriting, reimagining, and reshaping stories to their heart's content.

It also needs to be said how stifling this environment is for new creators. When so much time is spent remaking old stories, potential new stories are left by the wayside. The complex system of copyright is already dangerous enough terrain. The possibility of a large corporation coming and demanding dividends of potential creators’ work discourages them from writing their vitally important stories. Developing new IP is risky and difficult, but it’s a fundamental part of the filmmaking process.

Congress needs to corral the current duration of copyright protection back to a reasonable length. Once this is done, the process of healing American filmmaking can begin. As intellectual property begins entering the public domain, a deluge of innovation is sure to follow. Creators from all backgrounds and walks of life will be free to reinvent and show new angles to familiar stories. The whole ecosystem of cinema will be upended and with the reliability of established franchises, companies will be forced to innovate. This was how the system was intended to work: with many creators free to compete with each other, the best rising to the top.

We’re living in a monumental time when the chances of real pushback against corporations seems more and more likely. Lina Khan and her FTC are going to do good work for this country, but it’s important to recognize their limitations. Years of corporate power building itself inside our laws and institutions is difficult to expel. Copyright expiration and the public domain are only a few parts of the damage that has been done to this country. Reclaiming our greatest stories is only a mile in the road to reclaiming our country.