Wednesday, April 9, 2008

Would an appropriator sue someone who had appropriated his work?

In my comments to students after an oral argument on the cross motions for summary judgment on the legal writing problem that inspired this site, I suggested that the idea (advanced by counsel for the plaintiffs) that the KLF would pursue a copyright infringement action against anyone who appropriated K Cera Cera seemed pretty far-fetched. It would take too much nerve for an appropriator to sue someone for appropriation, wouldn't it? Perhaps not, at least in the case of Shepard Fairey.

I still think such a move is contrary to part of what the KLF were all about.

Then again, maybe Baxter Orr's claim that Shepard Fairey has served him with a cease and desist order is a hoax Orr cooked up to garner publicity for his own work.

When will we no longer consider it "original" to express the "insight" that much of what we label "original" and thereby protect with copyright law is just the same old pap recycled by corporate giants, not art created by divinely inspired geniuses living among us? That idea may not itself be an original one, but it does not seem to have penetrated very much into the culture at large, much less copyright law, at least not when the most successful commercial "artists" are so plainly the synthetic creations of corporate giants:

"It's an amazing thing that we've reached a place in the entertainment industry where a 15-year-old Disney firecracker could outsell 'The Boss,' that the kid who plays Harry Potter could make more money in a year than Jennifer Aniston and Sandra Bullock," said Lea Goldman, senior editor of Forbes. "Kids are where it's at today. Tweens wield mighty, mighty power in the marketplace."

Like many others in entertainment, [Miley] Cyrus is probably better known for her character's name, Hannah Montana, than her real name. However, the name "Hannah Montana" is owned by Disney, which controls all aspects of its use and pockets much of the earnings.

"Miley is unusual in that much of her earnings are under a Disney-owned brand, that of Hannah Montana," Goldman said. "This is a Disney property. That means Disney enjoys ownership of all the rights and royalties associated with the brand."

Syracuse popular culture professor Robert Thompson agrees.

"Miley Cyrus as Hannah Montana is the huge phenomenon it is, not because she's a brilliant actor or an extraordinary singer," he said. "The reason it is a phenomenon is because of the incredible industrial complex that Disney has in control. The way the concert was promoted, the handling of Hannah Montana is a phenomenon created out of a brilliant set of marketing strategies."

That's why the teen star whose full name is Destiny Hope Cyrus - Miley is a nickname - is known more as Hannah Montana. On her second music recording, a two-disc follow-up to her Hannah Montana soundtrack, Cyrus uses her full name on the second disc. Beyond that, her official Web site (mileyworld.com) and her live television appearances as herself, Cyrus is Hannah Montana to the public.

Goldman said that Disney is well aware that Hannah Montana would not exist without Cyrus, "and she is well-compensated. But Miley wouldn't be Miley without Hannah."

3 comments:

Anonymous said...

I have one word for the argument that:

"Miley Cyrus as Hannah Montana is the huge phenomenon it is, not because she's a brilliant actor or an extraordinary singer," he said. "The reason it is a phenomenon is because of the incredible industrial complex that Disney has in control. The way the concert was promoted, the handling of Hannah Montana is a phenomenon created out of a brilliant set of marketing strategies."

Madonna, who is neither a "a brilliant actor or an extraordinary singer," but continues to top the charts, regardless of the presence or absence of the "incredible industrial complex" and "brilliant set of marketing strategies" used over the years to promote her.

I refer the good professor to the book "Blink," regarding people's ability to determine creative ability. Cf., “The Wisdom of Crowds” by James Surowiecki.

peter said...

Anonymous,

I'm not sure what your point is. Madonna didn't enjoy the fruits of industry marketing strategies? You must be kidding? She's as good another example of the phenomenon as I can imagine. I remember the first MTV Music Awards.

And you think she owns her songs? She isn't even credited as one of multiple songwriters on some of her hits (see, e.g. http://www.ascap.com/ace/search.cfm?requesttimeout=300), and even if she were, there's no telling how much of the actual benefit she might have enjoyed from "her" songs before she had become so big commercially she had too much bargaining power for the "industry" to simply run roughshot over her. See, e.g., http://idolator.com/tunes/idolawyer/the-idolawyer-attempts-to-make-this-internet+radio-royalty-matter-as-sexy-as-possible-245635.php:

"The basic concept to understand is that every song has several different owners—including the composer, the publisher, and the record label—and each of these entities gets to drop a bucket in the song's income stream. Modern-day copyright law is the result of years of Three Stooges-style wakka-wakka-wakka bickering between Congress, industry and end-users about who gets paid, and for what."

I don't mean to suggest there's no commercial success enjoyed by genuine talent. Rather, I mean to suggest commercial success seems often unconnected to talent. I'm pretty skeptical of the wisdom of crowds, and I'm not sure what "Blink" has to do with your point. I read Gladwell to suggest that "thin slicing" (i.e., gut reaction) often generates very reliable reactions, but he wrote about wisdom in the gut reactions of experts, not of the mass market. Thus, for example, someone walked into the Getty Museum one day and recognized instantly that the *kouros* (an archaic Greek sculpture) the museum had paid top dollar for and had tried for years to authenticate was a forgery; his ability to instantly recognize the sculpture's inauthenticity was the result of his years of training in the field. It sure wasn't the gut reaction of the "crowd." See, e.g. http://ebm.bmj.com/cgi/content/full/10/6/189

Finally, it seems to me copyright law is to a considerable degree (perhaps even primarily) about protecting the interests of the "industry" than it is about fostering creativity. Actually, copyright's origin is based exactly in an effort to protect publishers, not authors. See, e.g., http://www.firstmonday.org/issues/issue8_10/ewing/

Sean said...

More to the point, a dangerous precedent is set by Fairey here, which is, essentially, that its okay to square off the public commons by "appropriating" a work, modifying it slightly, and then slapping a copyright logo on it. Can an individual now use an image that Fairey has copyrighted? As apparent from these actions, no they can't, or atleast not without hearing from Fairey's lawyers.

In a note explaining his actions, Fairey mentions he is suing Orr mostly for things unrelated to the specific image. He claims that this is in fact, the only actionable thing that his lawyers could do to get Orr to stop doing the other nasty things he is allegedly doing. But Fairey obviously thinks were all idiots, or thus has the worst legal representation in history; what lawyer would sue for something distinctly unrelated to the subject of what you are suing over. "Your honor, we don't care about the image we sued for, merely a bunch of other unsubstantiated allegations".