Media Authorship

Cynthia Chris, David A. Gerstner

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781136485718
• Topic: Languages & Linguistics
• Subtopic: Film & Video
• Index: Languages & Linguistics

Contemporary media authorship is frequently collaborative, participatory, non-site specific, or quite simply goes unrecognized. In this volume, media and film scholars explore the theoretical debates around authorship, intention, and identity within the rapidly transforming and globalized culture industry of new media. Defining media broadly, across a range of creative artifacts and production cultures—from visual arts to videogames, from textiles to television—contributors consider authoring practices of artists, designers, do-it-yourselfers, media professionals, scholars, and others. Specifically, they ask:

• What constitutes "media" and "authorship" in a technologically converged, globally conglomerated, multiplatform environment for the production and distribution of content?
• What can we learn from cinematic and literary models of authorship—and critiques of those models—with regard to authorship not only in television and recorded music, but also interactive media such as videogames and the Internet?
• How do we conceive of authorship through practices in which users generate content collaboratively or via appropriation?
• What institutional prerogatives and legal debates around intellectual property rights, fair use, and copyright bear on concepts of authorship in "new media"?

By addressing these issues, Media Authorship demonstrates that the concept of authorship as formulated in literary and film studies is reinvigorated, contested, remade—even, reauthored—by new practices in the digital media environment.

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Part one

Creativity, Copyright,

and Authorship

one

Patricia Aufderheide

The academic debate about the relationship between legal and literary conceptualizations of the author in copyright policy is decades old, and centers on the role of the Romantic-era concept of the author-genius. On one side, heftily weighted to cultural and literary scholars such as Michel Foucault and Roland Barthes, is the argument that legal regimes partake of the zeitgeist; they have developed their policies and to some extent their legitimacy with the Romantic-era notion of the author.¹ In a post-structuralist era, with the “death of the author,” such regulations are weakened and made dysfunctional to the extent that they no longer reflect cultural expressions and expectations of more pluralistic creation of cultural meaning. Copyright policy falls out of sync with the culturally constructed notion of the author. Those who believe this argument might, for instance, find that pastiche work, appropriation art, remix, mashups, and aggregation blogs are evidence that participatory and collaborative culture is overtaking law, which will have to adjust its policies to accommodate changing cultural production practices and expectations.

On the other end of the spectrum is the acerbic view, represented by Mark Lemley and David Saunders, that legal regimes, which after all employ the concept of authorship significantly before the Romantic era, opportunistically intersect with the Romantic conceptualization of the author in literary terms.² However, the multiple functions of copyright law sometimes differ from and even conflict with the Romantic notion of the genius-author. A primary function of copyright law, for instance, is to propertize work that often lacks a traditional property dimension (for instance, a digital file), and to allow it to circulate in the marketplace as a commodity. Authorship has an extraordinary convenience for this purpose insofar as it affixes the origin of the work and provides an original property-holder. However, the aura of authorship does not stick to copyright’s grant of limited monopoly, which is given to whoever purchases it from the original owner (often very quickly). The notion of originality, for instance, is quite different in copyright policy than in literature and in the Romantic concept of the genius-author. For the law, it is enough that someone executed the work, however derivative or tawdry it might have been. An author in the Romantic conceptualization of authorship, however, has departed from the given world and created something truly new.

Furthermore, copyright law, against the actual reality of production, routinely assigns authorship to fewer people than contribute to the work in order to achieve greater efficiency, and where there are multiple authors, copyright policy fails entirely to recognize collective creation except as an aggregation of individual authors. These practices, which fail to recognize any special right of individuals who may, for instance, have contributed to a corporate endeavor through work-for-hire arrangement, or who might have participated in a collective process in which the genius of authorship is exercised collaboratively (for instance, the Co-op Garden Committee), have practical advantages in the commodification of the intellectual “property.” And, finally, changes in copyright law do not map neatly onto zeitgeist shifts in Romantic conceptualization of the author.

Using this point of view, one may see the law as a product of contingent decision-making, accreting around conflicts over property rights and with an associational but not necessary connection with cultural notions of authorship. From this perspective, it is unsurprising that legal regimes continue to invest in an Enlightenment concept of authorship and that they have not responded to the perception in literary circles of a shift toward a collective creation of culture, a fragmentation of concepts of the self, a fluid conceptualization of both product and meaning in cultural works. Property continues to be of immense and practical value, and even business models that value participatory creation—for example, blogs that employ images culled from TwitPics, sites that develop crowd-sourced rankings, social media sites such as Facebook—when offering value for participation offer it on an individual basis.

Others, including Peter Jaszi, James Boyle, Lewis Hyde, Thomas Streeter, and Siva Vaidhyanathan, variously argue that the law, while a distinct realm, participates sometimes opportunistically and sometimes unconsciously in a Romantic association between property and creativity, creating a dangerously unbalanced copyright policy that can stifle creativity.³ This problem emerges not only because law is inappropriate to the reality of creative practice, but because both consumers and creators participate in an overvaluation of the property rights created by the law. They participate in an unhealthy amalgam of property interest and moral assertion, which justifies imbalance. This argument was launched in the United States by Peter Jaszi, who argued that the concept of authorship was an “ideologically charged concept” that “has been an active shaping and destabilizing force in the erection” of copyright doctrine.⁴ James Boyle drew heavily on those insights and applied them in his Shaman, Software, and Spleens, which emerged from an active scholarly conversation showcased in a conference and subsequent edited book, The Construction of Authorship: Textual Appropriation in Law and Literature.⁵ Jaszi and Martha Woodmansee, who co-edited that book, begin from the Foucauldian position that historicizes the concept of authorship, crystallizing in the Romantic era and focusing on originality as a unique and creative intervention in the culture. They then note that changes over the last 150 years in copyright, accelerated greatly in the last 30 years, vastly extend the rights of copyright holders. This privileging of the author they find best attributable to a conforming of copyright law to the reverencing of the authorial role:

Informed by the Romantic belief that long and intense legal protection is the due of creative genius, this latter model [one of “natural law” recognizing previous entitlement] dominates “authors’ rights” discourse in Continental Europe, and it has also exerted consistent, shaping pressure on the Anglo-American law of copyright, at least since Wordsworth’s time.⁶

One example is a 1991 ruling (Feist Publications, Inc. v Rural Telephone Services Co., Inc., 499 U.S. 340 [1991]), which decided that databases such as telephone books are not copyrightable, because they are collections of facts without a distinguishing author. Thus, work that requires time and effort, and that adds value to the culture, is not recognized as worthy of protection. Another example of copyright law’s privileging of individual authorship is the failure to recognize work produced collectively (for instance, in folk culture). Meanwhile, work that may repeat and recombine trite tropes, such as a movie poster, can win copyright protection.

Woodmansee and Jaszi understand the impetus for this allegiance in the development of a culture of “possessive individualism,” in which the understanding of the self as something that can be owned fuels the expansion of capitalism. The early conflicts of incumbent and upstart publishers that brought forth the first copyright law in England, they argue, demonstrated the upstarts’ perception of themselves as possessive individualists in the extreme (possession, in this case of books, being all). Incumbents invoked authors as wounded parties, in order to regain some advantage. Thus, crass economic advantage combined with a powerful new Enlightenment concept of the self to fuel new stakeholder interests in copyright. As those interests have developed, the entanglement between moral claims, the linking of selfhood with ownership, and economic interests of often-corporate copyright holders has steadily extended the copyright regime until it encompasses not merely books but almost all expression. Woodmansee and Jaszi argue that legal training and legal scholarship would benefit from the poststructuralist literary revolution historicizing the notion of authorship. This is because the enthusiasm with which recent reforms have embraced a Romantic notion of authorship, for whatever reason, has ever-more-adversely affected the ability of creators to access existing culture—precisely at a moment when such access has been facilitated by digital culture and enabled greater, more diverse, and more inclusive cultural creation than ever before. For instance, students are terrified to quote scholarly work for fear of plagiarism, and are beset by the perceived obligation to provide something uniquely original in their work. They argue:

Western copyright laws—and the international copyright system derived from—are at once too broad and too narrow: they tend to deny or marginalize the work of many creative people while providing such intense protection to the works they cover that reasonable public access to those latter works is frustrated.⁷

Writing from a 2011 perspective, Jaszi saw signs in judicial interpretation that postmodern practice had begun to have an effect on law. He noted that Jeff Koons, who had lost a fair use lawsuit in 1992 for incorporating a piece of popular culture into his appropriation-style work, had won such a lawsuit in 2006. This time, Koons’ appropriation was seen as an artistic practice. The driving force was a shift in the law toward the prizing of transformativeness (repurposing, not just re-use) as key to deciding fair use. That shift in interpretation itself was an indication at least of recombinant practices as creative acts, creating multiple authorship issues that need to be balanced.

From this vantage point, one can perceive the seepage of Romantic valuations of artistic creativity into judicial decisions, pragmatic manipulation of the reverence for the author by corporate stakeholders lobbying for further limited monopoly rights, the limited functions of legal judgments as ways to resolve disputes, and widespread acceptance of Romantic genius-author concepts as interacting to create a situation that both in law and practice makes new creation fraught with legal concerns. This approach leads one to be as interested in how potential creators perceive copyright as in how justices, litigants, and legal scholars behave in defining and acting upon definitions of authors.

the construction and limits of us copyright law

US copyright law, however intertwined at a deep level with cultural expectations about authorship, has certain clearly expressed objectives. Among the clearest is that the goal of copyright policy is to foment culture, not merely to protect authors. Authorship protection, through limited monopoly rights, is merely one of the incentives, and a hotly debated one at that by the founders themselves. The Constitution asserts that copyright policy is intended to encourage the creation of new culture (“to promote the Progress of Science [meaning knowledge in general] and useful Arts [meaning crafts and professions]”), with a variety of incentives. Judges have consistently, even as monopoly rights have grown, recognized the value of balancing incentives to the monopoly right. Even in the 1991 Feist decision, the Supreme Court noted:

…copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.

More recently, the Supreme Court in 2003 (Eldred v. Ashcroft, 537 U.S. 186) recognized that the key exception to monopoly rights, the fair use doctrine, is a key feature that protects copyright policy—even when heavily unbalanced in favor of monopoly rights holders—from unconstitutionality. This decision was reinforced in a 2012 Supreme Court decision that once again (and citing Eldred) argued that copyright imbalance was not unconstitutional, because of the existence of fair use (Golan v. Holder, 10-545, US Supreme Court, Term OY-2011, January 18, 2012). Without exceptions including the largest and most flexible one, fair use, monopoly rights holders would become private censors over the future of culture, with the government’s sanction, thus violating the First Amendment. Although a welter of highly specific exceptions exists for specific constituencies, including teachers and librarians, everyone in the United States, in any medium, including holders of more narrow exceptions, has the right of fair use. Fair use applies to all of a copyright owner’s monopoly rights, including the owner’s right to control adaptation, distribution,...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• List of Figures
• Acknowledgments
• Introduction
• PART 1. Signature
• PART 2. Event
• PART 3. Context
• List of contributors
• Bibliography
• about the american film institute
• Index