Akshat Agrawal, Copyright's distortive effects
Copyright directs investment to excludable assets. But
socially valuable innovations can be difficult to marketize/commodify. Music
sampling: the tapestry/raw materials of early hip-hop practice make those kinds
of works works assets that can’t attract investment. Reproduction right
expanded to cover fragments. In response, courts have identified more
unprotectable things—arpeggios, etc. are scenes a faire. But that disadvantages
certain genres. Indian classical music: Raga system is the basic framework for
composition and improvisation. Various possibilities exist but with inherent
elemental similarity; overall aesthetic experience is different yet similar to
others. Characteristic phrases have to be present in all compositions in a
given Raga; desirably perceivable similarity b/c that’s how the vocalist and
audience gets a grip on what they’re hearing. But then that inherent elemental
similarity can’t be appropriated—less excludable, less attractive to investors.
This then affects popular tastes and shapes cultural identities.
Response: structurally scale down rights; while reducing the
value an owner can extract out of a single excludable work, it expands the kinds
of expressions that can be invested in—breadth increases, which decreases
cultural bias. Restrict derivative right to adaptations/forms of
representations that change medium, not works in same primary market.
Lunney: you pitch it as about lack of appropriability but then
it’s about cutting back on rights: reform the intro?
Hughes: if publisher can’t get sequel rights, then it will
insist on getting the film rights and impoverish authors.
Brauneis: the initial author would still have an advantage
in writing the sequel—this is an empirical question.
Q: why should we care who the landlord is?
Carys Craig, Copyright & Gender: Philosophy, Proof &
Praxis
Book chapter: research agenda for feminist copyright.
Romantic authorship: feminist scholars critically assess role of originality in
© and image of authorship as a solitary, isolated male genius detached from his
community and the background of the art in which he works (Shelley Wright).
Gendering of genius. Inequality is a cause and consequence of exclusion of
women.
If copyright reflects a fundamentally masculinist philosophy
of selfhood, one might hypothesize that copyright’s effects are also gendered,
and systematically disadvantage women.
The limited research we have supports this conclusion. Evidence
shows greater tendency to infringe among men; women are less likely to “break
rules.” Why? Are there gender differences in how people understand the morality?
Women may feel it’s more legitimate to share with friends than with strangers
online. Gender & © in the Filk Community: women were more concerned with
unattributed uses, and thought © was really about attribution; less concerned
if attribution was given. Pro female writers earn significantly less than male
counterparts, so © incentives are less. Gender gap also apparent in the ©
register.
So: women’s activities more likely to be chilled by real or
perceived © restrictoins, and less likely to enjoy © benefits as authors and
owners, and earn less when they own ©. And women are less likely to question ©’s
legitimacy.
WIPO thinks women just need to be better educated and
equipped to exploit their rights—that’s a misdiagnosis of the problem, which is
not with women and their copyright knowledge but with the copyright system.
Success of solutions depends on rethinking foundations.
One part of project: whether evidence gathering is even
sound methodology for critical feminists when we respond to calls to prove the
obvious; proving negatives, measuring what hasn’t been said and what might be said
in a different world as an inherently critical project.
Said: Framing it as “the woman question” is rhetorically
tricky and still positions women as the problem—why not “the copyright question:
woman edition”?
A: That’s where © is: it says the system is neutral and you
just need to get over it. It’s a place to start, but we of course need to
recognize why we don’t want to ask the woman question at the end. There are so
many axes and hierarchies that there’s no way to ask one question about a
marginalized category and come up with a consistent answer.
Hughes: increasing registrations for women at the © office compared
to other metrics where women are disadvantaged—ownership of stock, real
property, presence on corporate boards, patent ownership which then translates
to being in a startup. I could think that copyright is relatively neutral in an
incredibly sexist society.
Q: can there be a feminist landlordism?
A: more concerned with participation, accessibility, circulation,
but the © system is part of that; not interested in getting more women to
register ©.
Lunney: benefits of © system may also include consumption of
© works: attending theater, buying albums, books. Agrees that data can only
show what is, not what could have been or what should be.
Mailyn Fidler, Cross-Racial Copyright Litigation in Music:
Only a Paper Moon?
Have Black musicians been able to use copyright litigation to
push back against cross-racial appropriation (Three Boys), is it equal
(Campbell v. Acuff-Rose), or is it worse? Who sues who? Who wins? Looking at
post-1978, 9th, 2d, and 6th Cir (Motown) and SCt; copying
and use without license. First part of the project is from the 80s. A lot of
cases were ASCAP/royalty cases against discos/jukeboxes, which was not super
relevant.
Identifying race of plaintiffs: didn’t prove that difficult;
most figures are public. Small numbers; Black plaintiffs are largely elite
musicians. P wins overall 71% of the time and Black Ps won 100%; they might be bringing
rock solid cases and it’s not favoritism but careful selection of cases. May
also resolve through settlement.
Qs: should she start earlier? How should she count
duplicates/follow-on litigation, e.g. additional Chiffons cases brought in
aftermath of Chiffons case.
Many cases were brought by record labels suing on behalf of
Black musicians. [what does that mean?]
Next steps: do these trends hold up? What does the 6th
Circuit look like? What goes on in settlement?
Gena Feist: you might look at whether they were added to the
master ownership/composition ownership as a way of detecting settlement. [other
suggestions: news reports, Billboard]
Q: just because the music was by a Black musician doesn’t
mean that it’s a Black musician who gets paid when a case about that music is resolved
in the P’s favor. [this was my question above]
Hughes: should code compositions and sound recordings
separately. Can contact living people—lawyers on settlements may be still
alive.
A: but the difficulty is knowing what disputes were resolved
by settlement w/o a public record.
Buccafusco: Qualitative research, like Silbey does, could be
helpful here b/c we don’t have access to base rate info; there’s a nice sample
here though that you could go deep into.
Said: ownership records; interview a few repeat players.
Leah Chan Grinvald: history of exploitative transfers also factors in
here.
Cathay Y. N. Smith, Cancelling Dr Seuss
Estate stopped publishing six books because they perpetuated
harmful racial stereotypes of POC. Public reaction was swift and divided. Over
the years, authors and publishers have different responses to problematic
material in children’s books—pulled books, altered language, even rewritten
plots or dance sequences. Wants to document and explain some of the changes publishers
have made, in books, films, and dramatic works. Not focusing on creators.
Explore the moral and legal implications, as well as policy considerations.
In all of Seuss’s children’s books, 2% featured POC, all men,
no speaking roles. Stereotypical depictions and descriptions, e.g. “all wear
their eyes at a slant,” “A Chinaman who eats with sticks.” Black characters are
shirtless, wearing hairstyles that match the animals they’re with.
Charlie & the Chocolate Factory: Originally described Oompa-Loompas
as African pygmies; eventually changed to white and then orange.
Richard Scarry has changed over time too. Some changes are
made by heirs—Dr. Doolittle changed storyline involving “Prince Bumpo” asking
to lighten his skin. Nancy Drew—plotlines where POC are very stereotypical or
Nancy relies on stereotypes to solve cases.
Films are also pulled/changed: Disney’s Song of the South.
Pippi Longstocking removed certain words and scene where she pulls at her eyes
while singing a mock “Chinese” song. Sometimes add content warnings instead of edits.
Ballet/musical theater: The Nutcracker dances have been
changed—rechoreographed Chinese Tea Dance to remove yellowface/stereotyped
movement and be more authentic. Peter Pan: removing Tiger Song (?).
Complications: what is being cancelled/updated: “classic”
works for children; copyrighted v. public domain. Why? Who is doing it?
Follow-on creator, author, heirs? Forcing a © owner to publish something they
no longer agree with could be a problem, but so could exposing children to
content they’re not capable of fully understanding. Racial stereotypes in
children’s works can reinforce internalized racism, sexism, and white
supremacy. But should we airbrush/whitewash history?
Is publicly cancelling a work abandonment? Would it allow
fair use? Denying injunctive relief may support the public interest, TD Bank v.
Hill, 3d Cir.
In many cases, works edited rather than withdrawn. Should ©
owner be able to prevent access to older versions? Can third parties edit for
offensiveness? Editing works as creating copyrightable derivatives, from just
removing a word (the word) in Huckleberry Finn to recreating illustrations.
Q: compare to moves to remove books that feature transgender
people.
Lunney: consider first sale/exhaustion: more control over
songs/movies that are streamed.
Alex Roberts: Trans artist removing every mention of JKR
from HP books and then rebinding them—interesting version.
Laura Heymann: Cancel is a fraught term for this—suggest
something else. Consider fair use distinction between someone criticizing Cat
in the Hat by showing pictures/quotes versus editing it to change the tropes:
the former seems easier than the latter.
Said: descriptively, encourage you to think about absence
versus presence, but stereotyped. What are the politics of publication? Why are
authors of color not getting to be “classics”? Do we really make the Tea Dance
more “authentic” by having a Chinese choreographer? The ballet is capturing a
moment of Orientalism—what is it we’re trying to do and why would that be better
than Tchaikovsky’s version—how do we know that one choreographer can stand in
for all things China and that we aren’t just tokenizing?
Aman Gebru, Communal Authorship
© does well with solo and team authored works, but not communally
authorized works, which creates confusion and gets in the way of expression;
some actors benefit unfairly, capturing value that isn’t theirs. Team-authored
works: dramatic, musical, audiovisual. Joint authorship elements of intent to merge
and collaboration apply easily; governed by contracts, industry custom, and
institutions.
Hackathons/communal authorship: large scale, informal
creative collaborations involving numerosity (usually larger than team-authored
works), informality (decentralized) and temporality (contributions at different
times). Examples: hackathons, memes, and traditional cultural expressions. Most
hackathon agreeements don’t address IP rights that could arise in the event.
The solution they’re working on is not shared in most cases, so it would be
hard to find intent to merge.
The meme: distinct social object from the underlying picture
or any instantiation of it. No formal relationship between various “authors.”
Derivative work? Fair use?
TCEs: The Lion Sleeps Tonight/story about Disney settling
with Solomon Linda’s family/actual origins of melody seem to be further back in
time.
Curtin: hackathons are very different in temporality and formality from your
other examples. Would free software communities be a better model?
Ochoa: why not consider wikis?
Buccafusco: why need clarity?
A: Meme litigation goes on now. But maybe the anarchist “no
one owns anything” is the best outcome.
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