But there is a logical, sensible solution: When an artist or an artist’s estate decides that they are no longer comfortable profiting off certain works, they should transfer their copyrights to the public domain or make them under Creative Commons’ copyright waiver. Such a decision saves an artist or the artist’s estate from the morally troubling proposition of profiting from work deemed racist (or sexist or homophobic) while also preempting suggestions that the art is being memory-holed to appease reactionary progressives.
Figuring out who should have the ability to give up these rights might take some fine-tuning. While artists may create television shows and movies, for example, the production company to whom they sell that intellectual property or the distribution company or network that ultimately airs it may end up as the ultimate rights-holder. All those people may have different definitions of what makes a work too toxic — or at least too touchy — to make money from. The most anxious person in that calculus, and the entity furthest removed from the creation of the actual work, shouldn’t get to kick it into the public domain as a mere act of corporate spin control.
To take one example: just because someone at Netflix and Hulu decided we were too fragile to see one of “Community’s” episodes featuring a character dressed as a dark elf — a joke mocking the use of blackface — and just because an apparatchik at Sony agreed with this callow call, that doesn’t mean creator Dan Harmon or the writers, directors and actors involved in making it should lose the opportunity to profit from it forever.
But the benefits of preserving access to even vexing art are obvious. As my colleague Alyssa Rosenberg has noted, we all lose something about our understanding of the past and the present when we are shielded from the omnipresence of disreputable figures in past pop culture productions.
The creators of “The Simpsons” have decided that the episode starring Michael Jackson, “Stark Raving Dad,” is too troubling to stream on Disney Plus or include in physical media sets. But set “Stark Raving Dad” free and we can learn a lot about Jackson’s role in pop culture history without burdening the conscience of the creators.
When Tina Fey announced that she wanted episodes of “30 Rock” removed from circulation because they mocked the comedy industry’s history of using blackface, it would have been the perfect opportunity for her and her corporate overlords to make a statement. By choosing to forgo profits from the show in perpetuity while also demonstrating a commitment to openness and a refusal to whitewash the show’s history of partaking in the phenomenon it was critiquing, she and NBCUniversal could have set a good example for the rest of her business.
We should be leery of efforts to craft legislation mandating these transfers of copyright. How would you write a law that says “books or television shows or movies or cartoons that fall victim to cancel culture must be made free for everyone to reprint”? Would libertarians and conservatives really want a government panel determining the acceptable reasons for keeping a book in print or out of print? Outside of a blanket rule that any work out of print for a certain amount of time — say, seven years, half the length of the first copyright term legislated by Congress in 1790 — must be released into the public domain, it’s hard to see a legislative fix.
Those who profess concern about cancel culture — a cohort I consider myself part of — should support this in large part because it would stop the dilution of the concept. Let’s be blunt: A publisher deciding to pull a book of its own volition is not an instance of the phenomenon, and it cheapens the phrase to use it here. (Though a generous reader can understand some of the concern, given the absurd campaign against “The Cat in the Hat” in recent years.) New York Times reporter Donald G. McNeil Jr.’s forced resignation, for example, is not the same as a publisher deciding it is embarrassed to profit from outdated stereotypes.
The culture wars will continue. But taking a common-sense approach to copyright and profit would at least allow us to declare a truce on this particular set of battles.