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Category Archives: IP law

Transformative Musical Works, the Law, and Race: On “Blurred Lines”

As I wrap up my current project on industry’s recruitment and normalization of particular fans and fan practices and begin the pivot to the next project, which is about musical intertexts in remix, mash-up, and cover songs, I have had the good fortune of discovering several interesting things to talk about.

First, I came across the musical genius of Jimmy Fallon, both the series in which he and The Roots join a musical guest to do a rendition of their hit song with children’s musical instruments (e.g. Mariah Carey’s “All I Want for Christmas is You”) and his outstanding impressions (compilation), both of which will be great to talk about in terms of transformative use. All of that is definitely going in the book.

And then came what Paul Barrett at Businessweek called “a really apologetic lawsuit” from pop star Robin Thicke (who did a Jimmy Fallon children’s instrument rendition of “Blurred Lines”) against the heirs of Marvin Gaye.

The backstory is that Gaye’s heirs feel that Thicke’s hit “Blurred Lines” infringes on Gaye’s song “Got to Give it Up” (and Funkadelic’s “Sexy Ways,” though the Gaye estate has no standing on that claim) and threatened to sue if they weren’t paid royalties. In response, Thicke preemptively sued to have “Blurred Lines” declared not infringing.

Media and law scholar Siva Vaidhyanathan notes in his Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity that “Federal courts ask two questions to determine whether a song infringes on the copyright of an earlier song. The plaintiff must show that the second composer had access to the first song and that the second song shows ‘substantial similarity’ to the first” (p. 127).

Barrett’s piece says “The songs are definitely similar: heavy bass line, falsetto vocals, lots of loose percussion and background noise. They’re fun and bouncy.” He adds, “If that constitutes a copyright violation, Thicke and his colleagues are on the hook.” My own analysis (untrained, which I’ll need to fix before I write this next book) leads me to think that there may be a claim for infringement on the bass line, but if the notes and arrangement of that are not in fact similar there’s no case.

Vaidhyanathan tells us that “Copyright regulates (but does not necessarily forbid) performance, transformative works, slight and oblique reference, and even access” (p. 125), and that “slight and oblique” part is where Thicke may be in trouble.

However, the things that are similar between the two songs—the rhythm, the “feel”—are not things copyright is very good at protecting, for better or worse. As Anne Barron noted in Introduction: Harmony or Dissonance? Copyright Concepts and Musical Practice, for a special issue of Social & Legal Studies, “Copyright law, it is said, adopts a narrow conception of music [ . . . ]. It tends to equate music with a score, or at least only protects what can be easily notated in the form of a score. One consequence of this is that it privileges certain musical elements that happen to be important in ‘classical’ music—notably melody and harmony” (p. 26).

However, the law has a “poor vocabulary” when it comes to “rhythm, pitch, nuance and gradation outside the steps of the diatonic/chromatic system, as well as vocal inflection and timbre” or  “non-standard pitches and non-discrete pitch movements (e.g. slides, slurs, blue notes, microtones); irregular, irrational rhythms and rhythmic details; nuances of ornamentation, accent, articulation and performer idiolect; and the sound qualities enabled by new techniques developed in the recording studio” (p. 30-1).

So, the kinds of things that are similar across the two seem to fall into that category of things that’s poorly protected. Even if colloquially we can “hear” similarities between the two compositions, even if, as one comment on the Businessweek piece claimed, “Thicke said in an interview that Marvin Gaye’s song was the inspiration for Blurred Lines and that he wanted to write a song like Got To Give It Up,” that doesn’t necessarily add up to copyright infringement in the eyes of the law.

Barrett quotes the lawsuit as saying, “Plaintiffs, who have the utmost respect for and admiration of Marvin Gaye, Funkadelic, and their musical legacies, reluctantly file this action in the face of multiple adverse claims from alleged successors in interest to those artists,” and that’s another interesting twist.

There’s been a good deal of work on sampling (which my upcoming project builds on to ask similar questions about remix, mash-up, and cover songs) that argues that to sample something is to say “‘Hey, I dug this, too” (Vaidhyanathan p. 136).

To use a sample, Barron says, is not to take a “shortcut,” but a way of referencing the sample’s “cultural references and resonances, its status as a kind of aural icon that gathers together a network of associations and experiences [ . . . ]. The value of what is taken in these circumstances is deemed to lie as much in its place within the collective memory of a community of listeners as in the creativity of an author.” (p. 34).

This seems to be the same logic that informs Thicke’s engagement with the respective work of Marvin Gaye and Funkadelic: I like this thing. I want to show that I like it and participate in its tradition while I am doing something new.

Of course, power differentials matter in all this. David Hesmondhalgh’s Digital Sampling and Cultural Inequality uses the example of how Moby sampled African American blues musicians in a way that relied on his privilege and their unprivilege to contend that responses to sampling have to account for such inequalities.

While, as Vaidhyanathan notes, sampling can be “a political act—a way of crossing the system, challenging expectations, or confronting the status quo” (p. 136), this isn’t true of every sample, only those where the powerless take from the powerful, as with Schoolly D sampling Led Zeppelin, whose guitarist The Simpsons called  “one of the greatest thieves of American black music to ever walk the earth.” When Moby or Jimmy Page did it to blues musicians, that is, it meant something very different.

Thinking through these issues in other forms of musical intertextuality, in the Thicke case it’s important to think about what it means for a white musician (he’s the face of the song even if it was co-written by African American artists) to be drawing on the style of a black musician (giving credit) while managing to skirt the requirements of law for actually paying that musician’s heirs.

And in that these are exactly the kinds of things I’m interested in in this new project—how musical texts reference older ones, with what purpose, and how this is inflected by law, economics, and racial and gender inequality—it’s really exciting to get to see them playing out in real time, and I’ll be following this case closely.

Limited Common Property, Fandom, and Indigenous Knowledges

Because the tech-support people I need to talk to in order to straighten out a data analysis snafu are in Germany, creating temporal challenges, I’ve been catching up on reading. As a result, I had just read Carol Rose’s 1998 piece The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems when an email came in from SumofUs.org with a petition against Nestlé’s attempt to patent the medicinal use of the fennel flower.

A few days before that, the monthly UC Berkeley newsletter had a story about scientists who were launching a drug company based on producing an antimalarial chemical synthetically in yeast instead of in its plants of origin. I was already familiar with the malaria example because my friend Josh Kellogg, who’s an ethnopharmacologist, was working on malaria treatments from natural sources as his PhD project until the money dried up in favor of synthetics—which, he pointed out to me, ultimately derive from knowledge of plant sources anyway (as in the Berkeley research case).

Perfect storm weeks like this get me thinking and make me want to work through connections, so that’s what I want to do here. I’ve written before about privatizing fandom and enclosing the commons, but Rose’s piece gave me a new angle on the commons that I think is useful for the work I’m doing on fandom in my dissertation—that of capitalist disrespect and appropriation of indigenous intellectual property.

Now, this is mine-filled territory, because it risks evoking the logic of pure, uncorrupted-by-civilization (and thus implicitly uncivilized) indigeneity I critiqued in The Trouble with Tribals.  So, to be clear, the idea of indigenous intellectual property is being used here to think with, to structurally or metaphorically denote a group with a different set of values than the dominant ones of capital and a different set of beliefs about ownership and individual creativity, which are devalued by the dominant both because of these different values and for other reasons (racism in the literal-indigeneity case and sexism/devaluation of emotion in the fan case).

The connection of intellectual property concerns to indigenous people is not novel—Rose herself notes that in the forms of property she discusses “both factors—unconventional communal claims and unrecognized social status—overlap and conspire against property recognition. Historically, this was perhaps most noticeable in European encounters with Native Americans” (p. 141). What I want to do here is work through what this looks like for fandom alongside this Nestlé case to see what this renders visible.

First, what we see in the Nestlé patent of longstanding knowledge and industry efforts to monetize fandom is that things known or produced by certain groups don’t count as owned by them.

On one hand, this is because the claims to property often don’t take recognizable shapes in these cases—as Rose puts it, they “do not look like property at all to us” (p. 140). Rose’s piece traces out a theory of a property format called “limited common property,” which is “property on the outside, commons on the inside” (p. 144). That is, it’s not a pure commons, because not everybody is eligible to exploit it, but those who are on the inside can make use of it as completely as is allowed within the norms of the community.

This, to me, looks a lot like fandom: everybody in the community has shared access to everybody else’s stories, vids, meta, etc., but—in part due to stigma—there’s a protective attitude in relation to outsiders. It’s also like the fennel flower case: “everybody knows” the value of the plant, but that doesn’t make it a free-for-all for capital.

Related to this, which Rose raises but doesn’t really delve into, is “questions of alienability” (p. 140); limited common property isn’t very alienable because, unlike standard property, no one person owns it, such that nobody can really sell it off, and particularly not for individual gain.

This, I think, is part of why “pulling to publish”—the practice of converting fan fiction into novels like 50 Shades of Gray by renaming the characters (and then deleting the original)—is often frowned upon in fan communities. Yes, a person wrote it, but they generally did so in a community. And indefinable but vital contributions arise from interaction with those community members, such that then denying them access is denying recognition for their labor in favor of the single creative figure of the author.

This isn’t necessarily nefarious (although it can be). Mostly I’d attribute it to the fact that “the author principle is easy”: “it is easier to identify a single author (or definite set of authors) than an amorphous group, like a ‘village’; it is easier to identify a sharply unusual intellectual product than one that builds incrementally on the ideas of others, like a folktale; it is easier to mark out a product of sudden innovation than a gradual modification of nature, like a village’s long-cultivated plant product” (Rose p. 152).

This is also what makes Nestlé’s grab make sense (from an intellectual property standpoint, though clearly not a moral one). The SumofUs email noted that “in a paper published last year, Nestlé scientists claimed to ‘discover’ what much of the world has known for millennia: that nigella sativa extract could be used for ‘nutritional interventions in humans with food allergy’.”

This claim to discovery works because the knowledge is common across “much of the world” and no one really owns it, so Nestlé sees an opening to claim ownership. The problem with this is alienability. “Nestlé is attempting to create a nigella sativa monopoly and gain the ability to sue anyone using it without Nestlé’s permission” (SumofUs); nobody owns it, but it’s because everybody owns it.

As Rose notes, “the extension of the author or inventor principle privileges the contributions of the industrialized West over those of non-Western cultures, among other matters by rejecting intellectual property status of folklore or for carefully cultivated plant products from third-world agrarian groups” (p. 151).

In this case, it’s even more absurd than usual, since Nestlé wasn’t even the first to translate this communal knowledge into the language of science—“researchers in developing nations such as Egypt and Pakistan had already published studies on the same curative powers Nestlé is claiming as its own” (SumofUs). But then, it may well be that those scientists don’t “count” in the same way as a multinational corporation.

This idea of limited common property is useful because it explains how people can seemingly share things freely and at the same time have a right not to have that appropriated by capital. But because these are nonstandard kinds of claims about property, based in nonstandard, more communal and less individualistic value systems, made by less-valued people, running over that right to not be appropriated is startlingly easy.

The DMCA, the Suppression of Speech, and Transparency

On Friday, April 5, a couple of my tweeps passed along links to the TorrentFreak story Movie Studios Want Google to Take Down Their Own Takedown Request

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Now, there’s a fair chance that these requests “are just another byproduct of the automated tools that are used to find infringing URLs” (TorrentFreak)—i.e., that the crawler found the URL to a copyrighted thing in the letter (which it has to be to tell Google what to take down), so it gets added to the list of takedown requests.

There’s also a possibility that the motivation has something to do with the fact that “with more than 100 million links to pirated files Google is steadily building the largest database of copyrighted material. This is rather ironic as it would only take one skilled coder to index the URLs from the DMCA notices in order to create one of the largest pirate search engines available” (TorrentFreak).

But having just read the report “Will Fair Use Survive?: Free Expression in the Age of Copyright Control” (pdf) from the Brennan Center for Justice at NYU School of Law, I see another implication, whether or not it was the intent—the system of intellectual property strongarming currently in place works best when the people being strongarmed are isolated and invisible rather than there being traces like archived takedown letters.

In the Brennan Center report, their analysis of all the letters archived by the Chilling Effects Clearinghouse for 2004 found that “more than 20% either stated weak copyright or trademark claims, or involved speech with a fair or at least reasonable free expression or fair use defense. Another 27% attacked material with possible free expression or fair use defenses” (p. ii).

Despite these weak claims or reasonable cases for legitimate use, the report found that many of the things targeted were taken down, even among a population they described as “likely to be a more knowledgeable group than the average” about their free speech and fair use rights given that they knew about Chilling Effects in the first place (p. 36).

The Brennan Center found that part of the capitulation was that the costs of fighting such takedown requests were often prohibitive—both monetary costs for lawyers and potential damages if the person who pushed back lost, and “fear, intimidation, and the emotional cost of defying an IP owner” (p. 37). And I think this speaks to the feeling of being a single individual against amassed industry legal and financial might, and I think that’s a pretty powerful force that should be taken seriously.

It was a victory for transparency (if not quite resistance to copyright maximalism) when “Google decided to forward the take-down notices to Chilling Effects while removing the listings from its index in accordance with the DMCA, and, in their place, inserting a link to the notice on the Chilling Effects site” (Brennan Center p. 29). That is, they did what they had to in accordance with the law, but they didn’t do it silently as if the alleged infringing object had never been.

TorrentFreak opines that “apparently Google has white-listed the Chillingeffects domain because it doesn’t see these indirect links as infringing,” but also notes that “Google is no stranger to removing non-direct links to links.”

This suggests that this is not a simple automated process declaring these links “indirect and noninfringing” to keep up with the 20 million takedown notices Google gets in a month (according to TorrentFreak). Instead, I think that the inclination toward transparency that led them to send things to Chilling Effects in the first place has something to do with holding the line on keeping those letters available.

These processes of shutting down speech—which the Brennan Center report found were sometimes aimed at suppressing criticism—need to happen out in the open. We should know what capital is using copyright as a blunt instrument to stifle. And they should probably have to explain in more detail why, given that such requests are spurious a nontrivial part of the time.

Right now, in Henry Jenkins’s phrase, “someone who stands to lose their home or their kid’s college fund by going head-to-head with studio attorneys is apt to fold” (Convergence Culture, p. 138) regardless of who’s in the right, and the Brennan Center report proposes that “providing for damages and attorneys’ fees where owners have made material misrepresentations in their take-down letters can help redress the imbalance” (p. 55). The Brennan Center also suggests that the legal profession “investigate the possibility of sanctions against lawyers who send frivolous cease and desist letters” (p. 57).

I think these would be excellent steps toward moving away from the use of intellectual property law as a weapon of the strong against the weak. But while we’re waiting, the traces of takedowns in the form of archived letters at Chilling Effects is the very least we can do.

#JoCoGleeGate and Copyright’s Failures

I first saw the story on January 19, retweeted to me by @kouredios from the Twitter of band They Might be Giants: jocotmbg

Briefly, independent artist Jonathan Coulton covered Sir Mix-a-Lot’s “Baby Got Back” in a distinctive style, and Glee’s cover of the song is virtually identical to Coulton’s, causing uproar from pro-Coulton and anti-Glee forces on the Internet under the hashtag #JoCoGleeGate. Both Coulton and Glee licensed the intellectual property of the song—the lyrics—from the appropriate parties, but Glee did not license Coulton’s arrangement from him, nor even inform him before recording and releasing the song.

jocoCNN This series of events seemed unfortunate, of course, but it didn’t arrest my attention at first. Until it made it to CNN a week later:

By the time Mythbusters co-host and geek-chic internet celebrity Adam Savage got into it on January 28, jocosavageI had also gotten around to reading Casey Fiesler’s 2008 piece Everything I need to know I learned from fandom: How existing social norms can help shape the next generation of user-generated content, and I knew I needed to write about it.

What we see from Glee’s decision and the ensuing (mini)scandal is the way in which the copyright system fundamentally fails at distinction. To reuse the quote from Fiesler that was my structural guide last week, “at one end is completely original material (no threat to copyright owners), and at the other end is wholesale copying (obvious infringement)” (p. 757), and the huge gray area in the middle is where current copyright law has no answers.

This is because anything other than “no threat” gets collapsed into “completely owned by the original rights-holder.” As Fiesler explains earlier in the piece, “legally, only copyright owners have the right to prepare [derivative] works. This applies to anything from the slightest modification to something so transformed that the original is hardly recognizable” (p. 737), which are, in the eyes of the law, all equally derivative.

Though Fiesler argues that “derivative works are transformative; basically, they incorporate copyrighted aspects of the original without being carbon copies of the original” (p. 737), that is, it’s actually the case that the transformativity or “adding new material” aspect is not something the law can account for very well, and this needs to be taken much more seriously.

Fiesler relegates the point to a note: “as it stands now, if, for example, someone attempted to profit from someone else’s fan fiction, the original fan fiction writer would probably not have a legal remedy, as they did not hold the copyright in their work in the first place” (759 n. 182), but it’s a pretty big deal. After all, it’s pretty much exactly what happened to Jonathan Coulton in a different medium.

Coulton added significant aspects to the song, but because it was based on another source song, he would seem to have no legal claim. As CNN explained, “the rights to ‘Baby Got Back’ belong with songwriter Anthony L. Ray, also known as Sir Mix-A-Lot, and his music publisher, Universal, who have apparently given proper licenses to Fox and ‘Glee.’” Coulton, despite his contribution to what Glee ultimately produced, does not factor into the equation at a legal level. He didn’t own the words, so he seemingly loses his claim to the music as well.

jocoiTunesIf that seems messed up to you, you’re not alone. Though Coulton apparently has no legal standing, he does have a moral one. It’s obvious to everyone that Coulton’s creativity went unacknowledged in this process, and as Adam Savage’s call to action quoted above suggests, people are rallying behind Coulton to the degree that his version is outselling the Glee cast recording:

The irony that it should be Glee, with its track record of supporting diversity (albeit in a sanctimonious, oversimplified way), that’s stomping on a small-scale music maker has also not escaped anyone. As Coulton complained in the CNN piece, “Glee has a reputation for being a show that celebrates the underdog [ . . . ]. It’s the anti-bullying show. But this is a bullying way to approach this.”

(Of course, Glee is a product of a massive media empire, and no one would be surprised by Rupert Murdoch bullying anybody, which is a whole other bait-and-switch and reputation-scrubbing issue.)

But regardless, the lawyers at Fox presumably knew the lay of the legal land, and knew they could get away with it either because they’d win in court, possibly immediately because there’s no standing in copyright law for Coulton, or because they knew Coulton didn’t have the financial wherewithal to sue them in the first place. Either way, it’s ultimately the weird ways that copyright has become wildly top-heavy that are at root here. So much for underdogs.

 

To Think Transnationally: Dissertation Blog #2

When I first proposed my dissertation, I wanted to focus on how fandom is produced and consumed in the U.S.

I had that inclination not because I’m a nationalist or it I thought it would be easy, but because that was the national context in which I had observed the phenomena that interested me. That was where it was happening. It might also be happening elsewhere, of course, but one can’t look at everything, and my dissertation was already complex enough (spectulative media and sports, fiction andnonfiction, representation andweb design) without doing comparative work in different national contexts.

My committee insisted, however, and I conceded the point that nations are pretty porous these days, so the contemporary conceptualization of the fan may not include being located in the territory of the nation. But I wasn’t happy about it.

However, a couple of pieces that I’ve read in the last couple of weeks have really reoriented my thought on this and made me see now how thinking transnationally is actually vital to what I want to do.

Oh, that uncomfortable feeling when you realize your committee was right. Though, in my own defense, I don’t think they were thinking about a transnational perspective in the same way I am. But they were, nevertheless, right.

You see, capital is transnational. That’s no revelation, to be sure, but I hadn’t thought about it quite that way until reading first Aphra Kerr‘s great post The Politics of Cultural Production over at Culture Digitally and second some pieces in preparation for a visit to my campus this week by sociologist Saskia Sassen.

Mindful of my own complaints last week about Academic Telephone, I want to note that both of these scholars touched on many issues and what caught my attention in relation to my own work was only a subset of this. Nevertheless, these pieces got me thinking, first, about how the work of production is dispersed across locations.

(This possibly also cemented me as a one-trick pony, cuz LABOR! Though, being a labor pony may not be so bad, if we take Julie Levin Russo’s excellent work on queer labor in My Little Pony fandomas the baseline)

Corporate media production work, both Kerr and Sassen mention (albeit somewhat briefly), travels around the globe to the places where there’s the right combination of high enough skills and low enough standards of living to maximize profit. Depending on the type of work—mining minerals, soldering chips, routine programming, or “creative” work (design)—that means different places.

If one of the things that interests me is the ways that contemporary fan-friendliness often takes the role of encouraging them to produce user-generated content, and I’m conceptualizing this as unpaid labor, the outsourcing (or, perhaps, global-sourcing if we’re not going to identify them as inherently “American jobs”) and casualization of official, paid labor has a lot to do with this as the background that makes this possible—and makes it make sense.

Moreover, if paid labor travels around until it finds a population with the right characteristics to exploit, unpaid labor would surely do the same—this, then, may be why these fan processes felt so American to me. Perhaps fans in the U.S. have a particular combination of skills, access to technology, leisure, and cultural inclinations toward individualism that makes them the right population for this sort of invitation to participate—but I can’t see that unless I work through to get to their American-ness at the end rather than starting there.

Kerr and Sassen also got me thinking, more directly in line with their respective foci, on transnational corporate action on the nation-state—in the context of my interests, I’m thinking specifically about intellectual property and antipiracy law.

Of course, this isn’t to position transnational capital as all-powerful the way the nation was once imagined to be (even if it feels that way sometimes). As Sassen puts it in her 2008 piece Neither Global nor National: Novel Assemblages of Territory, Authority and Rights, “corporate actors operating globally have pushed hard for the development of new types of formal instruments, notably intellectual property rights and standardized accounting principles. But they need not only the support, but also the actual work of each individual state where they operate to develop and implement such instruments in the specific context of each country” (p. 65).

So the nation is under a lot of pressure from transnational capital, but it still has to cooperate if those corporations are going to get what they want, and it plays out differently on the ground depending where you are—the different local outcomes of Samsung vs. Apple patent battle being fought out in courts across the globe point to this.

As Kerr puts it in her discussion of the specific case of game production:

As in other media sectors it is clear that a national focus is unhelpful in understanding the production of digital games. In order to understand how transnational corporations operate we need to attend to the ways these corporations act in multiple places. This is not to suggest that the nation-state is no longer important, but rather to state that to understand transnational games production we need to consider how transnational corporations compete, cooperate and lobby in pursuit of their interests and how states and other political entities facilitate, regulate and collude in these actions.

Sassen similarly contends that the processes she describes “does not represent the end of national states, but it does begin to disassemble the national” (p. 62). In these ways, then, it’s clear that the nation may or may not be a great analytic category anymore—at the very least, it can’t be assumed but instead has to be selectively deployed depending on the case. We are, then, witnessing “a partial de-nationalizing of what had been constructed historically as national” (p. 73).

So I guess I’ll be thinking transnationally after all.