The nostalgia of copyright: how performers make movies, and other sounds of authorship
Johanna Gibson
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The faculty produces the instinctive tendency to attach one’s-self to surrounding objects and beings …. When too strong … the disease called Nostalgia, is the result.

G Combe, ‘Outlines of Phrenology’ (1835) (original emphasis)

‘I will help you. I have spoken.’ Kuill, in The Mandalorian (2019–)

What is the secret superpower of the movie franchise business model? Possibly controversially, I am going to suggest it is not the merchandising might of the trade marks, or even the familiarity of the stories. The superpower of the film franchise is its characters; or more specifically, its characters’ performers. And even more specifically, it is their voices. I will return to the voice in the franchise wilderness in a moment. And it does seem to be a never-ending wilderness, with more and more attention to existing intellectual properties rather than ‘new money’, as it were. But before we start to listen to reason, and the creativity of the performer, I want to examine the film industry’s apparent fixation with nostalgia.

Nostalgia is immediately obvious as fundamental to the value of the franchise. Nostalgia fuels the yearning and desire of ‘pre-owned’ audiences for familiar objects and satisfying narrative restatements. Recently, along with apparently everyone I know, I went to see one of the biggest reboots of 2022 – Top Gun: Maverick. Although there were some references to the earlier story, for the most part this was actually in the service of the characters and their reintroduction or memorialization. The nostalgic dreamscape was critically dependent not upon story, but upon the sound, music, and voice for its familiarity and continuity. Along with the embracing sounds of the roaring jets, or Maverick’s (albeit newer) Kawasaki motorcycle, there is the critical role of the music – from the refrain of the ‘Top Gun Anthem’ to the reassuring return of ‘Danger Zone’, the music is instrumental (pardon the pun). An especially striking sequence is when Maverick witnesses Goose’s son, Rooster, playing ‘Great Balls of Fire’ in the bar.1 Maverick is cast back to an almost identical episode with Goose in the original film,2 and at that moment all the important connections are established. The song serves not only to tie the films and affirm the ‘respect’ of the reboot, but also to identify the paternal relationship between Goose and Rooster, and the affiliative one between Maverick and his friend’s son. The song is thus not only a thread of cinematic history but also a characterisation of its performers, and as such a kind of narrator itself.

But perhaps the most telling of the sounds, so to speak, is not the music but the voices. There was tremendous affection in the press and in the theatres for the return of Val Kilmer as Iceman, Maverick’s nemesis. However, in real life Kilmer has lost his voice through surgical and other interventions for throat cancer. To return Iceman, Sonantic produced an artificial intelligence voice model trained from an archive of recorded material provided by Kilmer.3 It was not just Kilmer who had to return for the authenticity of the reboot; it was his (recognizable) voice. What became very clear to me as I went on the Top Gun adventure with the rest of the theatre, was that the architect of that nostalgia is not so much the story, which was almost incidental, but the characters; and most importantly of all, it is the characters as directed by the performers. Notwithstanding the potential ethical questions raised by the decision to ‘correct’ Kilmer’s voice in order for him to perform, nostalgia’s call comes from the performers.

Nostalgia is not just for the franchises, it is fuelling big entertainment business all round. In the major mergers of recent years, the value of audience nostalgia has been at stake in all the deals, and this value is consistently circumscribed by intellectual property. The value of nostalgia is the major arsenal of the streaming wars, in so far as it underwrites the major acquisitions of the past few years: Comcast and Universal (with franchise properties like Jurassic Park and Fast and the Furious);4 Disney and LucasFilm;5 and of course, the subject of the last issue’s editorial,6 Amazon and MGM.7 The Amazon deal is particularly instructive on this point.8 Throughout the progress of the deal, reports emphasized the intellectual property of MGM’s library of films,9 and in particular the James Bond franchise: ‘It gives Amazon one giant movie brand everyone has heard of and still wants to watch – James Bond.’10 The name alone almost gives it away – this is a property articulated almost wholly upon character. And that value is propelled by the sound of that character, in particular, in that the property is cohered through a catchphrase and a theme tune. Listen to reason – the character is the voice of reason here, and Amazon was listening closely when it set out to make that deal.

In pursuing MGM, Amazon was surely not unaware of a very well-established nostalgia business model already in this space – Disney. Nostalgia is the bones of Disney’s business model11 and Disney is indefatigable in its remakes, reboots, and reworkings of its own intellectual property archive, at once both reaffirming its legacy and managing its property in the process. But this is a management almost entirely interpreted through conventions of intellectual property. Copyright loves a story, and Disney’s preoccupation with managing the property in the story, as distinct from the life of the character, has become almost a source of irritation for Star Wars fans: ‘[Disney has] been too focused on explaining Star Wars … the franchise’s obsession with fixing perceived plot holes or connecting dots in [the] canon is undermining its ability to tell fresh stories.’12 Not only is the creativity arguably limited in reinvesting over and over in the existing story, but also, such a copyright-focused approach risks unravelling the audience relationship altogether. Because copyright law is nothing if not perversely nostalgic – but it is nostalgic for works, not for relations.

It seems almost paradoxical to suggest that nostalgia is the stuff of copyright, considering the rhetoric of incentives and desires with which it is often coupled. But copyright is deeply nostalgic. This is not simply because copyright preserves the stability of the objects of that nostalgic desire, or because it facilitates the market in their circulation. What I mean in saying that nostalgia is at the heart of copyright, is that copyright rests upon a certain romanticism of the work, a presumption of its immutability, its integrity, its intentionality. By its very operation, copyright not only betrays but also relies upon a nostalgia for the moral identity of the work. It reinscribes the presumed inimitability of the objects of that nostalgia and reaffirms ‘the poverty of the present’;13 that is, the iterations of audiences, fans, and other users in that present. And the entertainment industry is banking on it.

Indeed, copyright’s nostalgia is both a preoccupation and a mechanism of the business. And whereas Disney is replete with intellectual property nostalgia, Netflix and its peers have yet to establish the same kind of resources. In its purchase of MGM and its enormous archive, however, Amazon is going straight to the wings of desire,14 as it were: ‘Amazon doesn’t want to compete with Netflix or the other biggies for watch time and subscriber dollars. It just wants you to watch some video and spend some money.’15 In many respects, Amazon’s purchase of MGM is not about taking on the streaming giants directly; rather, it is the Disneyfication of Amazon.

But if Amazon focuses wholly on reinvestment in story, and thus an adherence to the nostalgia inherent in copyright’s view of the immutable work, then it will miss the trick of character and the dynamics of the audience relationship with the performers. That is, it will miss the relationships through which nostalgia becomes personal, open, curious, and above all, creative. This is important to the wider creative output of the industry, because nostalgia is also an agent of creativity through its stimulation of invention through affiliation and reception – that is, through openness.16 In other words, nostalgia is both a sense of longing as well as promoting a sense of belonging, and thus a kind of ‘access’ to experience. This link between openness and creativity calls in similar considerations and discussions of openness and indeed access in copyright. Is the nostalgic nature of copyright almost obtusely and unexpectedly a spur to creativity? In asking this question, I do not mean in the sense of copyright as an incentive to create, or even as a reward for creativity. Rather, this is copyright as a tool for users (audience and performers alike) to create – based upon the ‘underlying work’ if you will. The copyright work thus becomes a point of contact or confrontation for the genuine effort of creativity through interpretation and use. And perhaps this is what Top Gun: Maverick recognized most successfully of all. Not a remake, not a reboot, not a sequel … just picking up a few years later with a few old friends and their music.

Arguing that the success of a franchise rests with its characters of course does not deny the enormous income derived from the ancillary properties orbiting in their gravitational pull. The Star Wars franchise has made Disney a fortune in merchandising and story development since its purchase, but the characters are the undeniable thread through which the nostalgic fabric of the franchise is maintained. The potential trouble is that copyright keeps distracting from the performers and their characters, and Disney is not immune:

Ironically, Disney learned the wrong lesson from the backlash to Star Wars: The Last Jedi, and instead of actually following through on Kylo Ren’s plea to let the past die, Star Wars: The Rise of Skywalker was totally re-engineered to serve as a course correction, meaning all three sequel trilogy movies were designed on some level to ‘make things right’.17

How then does the franchise model deal effectively with character? Although Disney may stand accused of focusing on ‘fixing plot holes’, it has nevertheless paid attention to character and to the performer. But in doing so a whole new question around character arises. Is nostalgia served by de-aging performers, or reanimating deepfakes, or generating voices through artificial intelligence? Or is this kind of emphasis on preserving and managing the performer a pollution of the dynamic performer by a copyright-like view of the creative property as static, whereby the performer is presented as a fixed and immutable value? In other words, the performer’s dynamic and creative contributions are turned into immobilized and stable values, objects of copyright rather than subjects of performance.
The way in which the industry’s operation within the wider concerns of copyright frames the production of performers as properties provides insight into not only the way copyright views the creative performer, but also the way in which copyright manages a work’s interaction with other copyright works. In other words, through intertextuality and tribute, parody and pastiche, other films and other references, and even other filmmakers, communicate as ‘characters’ through the openness of nostalgia:

When Luke Skywalker is a deep fake with an AI-generated voice created using audio of Mark Hamill in past Star Wars projects, the story begins to feel more like it’s more inspired by social media reactions or a checklist of events from a wiki page than it is by Joseph Campbell or Arthurian myth or John Ford westerns or Kurosawa samurai movies or Flash Gordon or any of Lucas’ myriad inspirations.18

Which brings me back to the still, small voice of the performer. The expansion of the application of artificial intelligence to performance both as a correction and as a suspension raises specific ethical issues with respect to the welfare of performers, issues which are only exacerbated by the deferral of the performer’s creative activity by copyright (as performers of the work, after the fact). This kind of management of performance not only contributes to the view of the performer as a static object and thus a conventional property, but also reinforces the perspective upon the performer as a mere vehicle or technology for the underlying copyright work. The contributions of performers to the film work motivate a broader discussion on the relationship between copyright and performers’ rights, and the way in which the performer’s creativity continues to go ‘unspoken’ in copyright.

The law’s distancing of performers from their creative interpretations, and the expropriation of their work through technology, including artificial intelligence and deepfakes, mean that reform in performers’ rights is a welfare issue. And it is the film performer’s voice in particular that sheds light on performance and authorship. The replacement of a performer’s voice is an uncanny kind of doubling – the performer is commodified and displaced and yet at the same time seemingly reinstated through the familiarity of voice. On the question of voice, the historical synchronicity of the advent of sound in cinema and the establishment of performers’ rights is not mere coincidence, and it provides particular insight into the auteurism of copyright that qualifies these developments. Indeed, sound has always been a source of perturbation when it comes to the industry’s management of its visual hegemony and its separation of performers and auteurs. And it is the importance of sound to the future of performers’ rights that is the subject of my chapter in Reforming Intellectual Property,19 where I consider reform in performers’ rights in response not only to performance as creative work, but also to the critical issue of the welfare of performers and the ethics of contemporary film production. Potential reform in this area has a particular welfare dimension, one that is at times overshadowed by the spectre of the author and the nostalgia of copyright. Expanding copyright’s field has implications performatively, culturally, and inclusively.

The performers have spoken. But beware – if it sounds too good to be true, it probably is.

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