Contested Culture

The Image, the Voice, and the Law

Jane M. Gaines

• Publisher: The University of North Carolina Press
• Year: 2000
• Print ISBN: 9780807843260, 9780807819777
• eBook ISBN: 9780807861646
• Topic: Literature
• Subtopic: Literary Criticism
• Index: Literature

Jane M. Gaines examines the phenomenon of images as property, focusing on the legal staus of mechanically produced visual and audio images from popular culture. Bridging the fields of critical legal studies and cultural studies, she analyzes copyright, trademark, and intellectual property law, asking how the law constructs works of authorship and who owns the country's cultural heritage.

Chapter One
On Likeness

THE LAW

In this book, Melville Nimmer meets Bernard Edelman. It was inevitable that Nimmer, the author of the standard treatise on U.S. copyright law, former lawyer for Paramount Pictures, and, during his life, one of the one hundred most powerful lawyers in the country, would meet the French Marxist legal theorist who specializes in the intellectual property aspects of new communications technologies.¹ Although Edelman is primarily a French legal scholar, he occasionally comments on U.S. legal doctrine, as well as American popular forms. Recently, for instance, he discussed the plagiarism and parody issues arising out of cases that involved Edgar Rice Burroughs’s Tarzan and a French pornographic version of Charles Schultz’s Snoopy. Given the relevance to intellectual property doctrine of poststructuralist interest in the work, in the subject who utters the work, and in the discourses that utter that subject, Edelman is pivotal.² For his work stands quite alone in the way it hinges on intellectual property doctrine as well as contemporary theories of meaning. Edelman transplants a poststructuralist style of language “play” into legal theory, and in doing so he produces a kind of hybrid discourse that is anomalous to legal studies in the United States.

Here, for example, is Edelman on legal parody: “Parody is a creation based on a creation: it creates from the already created. Hence its ambiguity. On the one hand, it has to be distinct and distinguishable from the work being parodied, while borrowing its characters. On the other hand, so as not to run foul of the legal obligation of ‘respect,’ it cannot falsify the work being parodied.”³ This subtle play on the law of parody, familiar to readers accustomed to the poststructuralist production of puns as theory, is somewhat strange in the context of intellectual property law. Within this doctrine, language is like hard coin. Words and precise phrases, transferred intact from judicial opinion to commentary and back to opinion, are themselves the carriers of valuable entitlements. Legal discourse is designed to guard against ambiguity, and even the use of synonyms is avoided because it produces unwanted ambiguity rather than clarity. Meaning is bound again and again to linguistic terms through the ritual of citation.

This is not to say that juridical discourse is without verve, play, or wit. Often established doctrine evolves out of a judge’s subtle humor. The wry description of portrait painting delivered by Justice Oliver Wendell Holmes, Jr., in Bleistein v. Donaldson Lithographic Co. (1903), for instance, has become part of the foundation of copyright doctrine. Defending the copyrightability of circus posters reproduced by lithography, Holmes addressed the difference between reproducing a copy and producing a painting from the same original: “But even if they had been drawn from life, that fact would not deprive them of protection. The opposite would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy.”⁴ More often, though, U.S. intellectual property discourse is not turned upside down or inside out. It isn’t regularly submitted to a critique of its premises. After all, if it is to do the work of guaranteeing property value, it cannot be found to be (as Edelman finds it) unstable, self-contradicting, or incoherent.⁵ It must represent itself as scientific and airtight.

It is perplexing to me that there has been so little response to Edelman’s work in either Britain or the U.S. When his Ownership of the Image (published in France in 1973) was translated into English in 1979, the British film journal Screen published two important reviews.⁶ Three years later, John Tagg made productive use of Edelman in an essay on power relations in the photographic image.⁷ And in the U.S., Social Text published an analysis of Edelman and E. B. Pashukanis, the Soviet legal theorist of the twenties, to whom Edelman is indebted.⁸ Aside from this instance, however, the response has been muted at best, and what is surprising is that although Ownership of the Image appeared coincident with new critiques of the literary and cinematic subject (especially in the pages of Screen), Edelman’s quite original application of these theories to legal subjecthood has never been integrated into the Screen tradition.

The reason for this neglect could not have been that Edelman’s starting point in his study is the still photograph, because it was clear by 1979 that critiques of “representation” pertained to photography as well as film.⁹ It may have been, instead, that the English title of Edelman’s book suggested a “captains of industry” approach to the organization of mass culture, one that might have led potential readers to think that this was yet another analysis of concentrations of power in the entertainment industry.¹⁰ The question “Who owns the image?” might have implied, in other words, that the book was about property disputes involving publishing companies, motion picture studios, and television broadcasting networks.

Edelman’s French title, Le droit saisi par la photographie, suggests, however, that the book is about photographic technology’s indictment of traditional legal doctrine. And such an inquiry is in the spirit of the work on the politics of meaning in the image, which, like Edelman’s book, also has its origins in post-1968 French intellectual thought. Why, then, was Edelman not claimed by a tradition to which he clearly belongs?

Two other possible explanations suggest themselves. First, we might surmise that film theorists and literary critics have usually seen legal doctrine as foreign terrain. And second, these same critics might view the legal subject as essentially irrelevant to the questions of gender, desire, and sexuality that have been central concerns since the late seventies. The second possibility will have to wait for a fuller investigation in another undertaking. But I want to elaborate on the first possibility by asking why, given the existing model of Michel Foucault’s work (which draws no hard boundaries between medical, literary, penal, religious, or legal institutions), legal discourse was never pulled into the orbit of the Screen tradition—unlike, say, medical discourse, which was readily critiqued and incorporated into feminist film theory.¹¹ Part of the answer has to do with the configuration of critical fields and their respective methodologies. Within the ten years since the appearance of the English translation of Edelman, the once cinema-centered Screen tradition has given way to cultural studies. For a short time in the seventies, British cultural studies and Screen theory were considered rival traditions.¹² Today, however, cultural studies is often represented as encompassing all of the theoretical work on contemporary communications technologies, work which has some basis in poststructuralist theories of meaning. Because of this new development, I want to be clear that I am sticking quite closely to the original concerns of British cultural studies. My reference point, then, will be the identifiable body of work generated in the early seventies within and around the Centre for Contemporary Cultural Studies in Birmingham, England, and centered on the work of Stuart Hall and others.¹³ This gives me a point of entry into the analysis of legal doctrine, a methodological overlap (although not necessarily a perfect correspondence) with Edelman, and a political vantage point on Nimmer and the entertainment industry.¹⁴

Probably the most fundamental principle I take from cultural studies is Raymond Williams’s definition of culture as a “way of life,” as the sum of all aspects of a society.¹⁵ I start, then, from the assumption that although intellectual property law has its specialized traditions, codes, and practices, it can also be studied as an object of culture. Practical law, however, is also a discourse of power, one that restrains persons and regulates other objects of culture. I will want to investigate, therefore, how intellectual property law impinges upon such forms of culture as names, cartoons, recorded voices, novels, television dramas, photographic images, and motion pictures.

I am asking some old questions about the configuration of culture, but asking them from a new angle. Does intellectual property law proscribe certain aesthetic forms? Does it ensure the existence of some forms and not others? Do we therefore want to say that this law has a part in the social production of meaning? Does the consideration of intellectual property as another code that determines the availability of popular signs need to be factored into our theories of meaning? Before I continue this line of inquiry, let me clarify what I will mean by “intellectual property doctrine.”

Technically, Anglo-American intellectual property doctrine encompasses the unfair competition, copyright, and patent branches of the law. Here I limit myself to the unfair competition and copyright areas, since I am looking more at the cultural software than the industrial hardware side of production, where patent law is pertinent. By “doctrine,” I mean the body or corpus that is composed of the rulings of judge-made or common law, as well as of legislature-produced or statutory law. But in addition, “doctrine” encompasses commentary (law review articles, treatises) within which legal theorizing takes place. Although my discussion in some cases will range over the literature of the commentary, I will start with the written judicial opinion or decision rather than with any general principles. Each chapter takes one or more written opinions as its organizing focus.

The Double Movement of Legal Culture

Legal doctrine as a discourse has some structural similarity to popular culture as defined by British cultural studies. Stuart Hall, in “Notes on Deconstructing ‘The Popular,”’ describes popular culture as neither a fully appropriated territory (a space of containment) nor a space seized by the popular classes (a space of resistance). “The popular” is instead a middle ground between opposing social forces. In his theorization of this ground, Hall might be speaking about the space Anglo-American law occupies in relation to the wider culture. In the transition from agrarian to industrial capitalism, Hall explains, one sees an ongoing struggle over the culture of the poor and the working classes, a contest created because of the need to re-form society to meet the new needs of capital.¹⁶ Attempts to analyze popular culture, he goes on, have tended to view it as a space of either containment or resistance, as either totally conservative or inherently radical. Hall corrects that overstatement by giving us a better definition of popular culture than I have yet to find elsewhere: “Popular culture is neither, in a ‘pure’ sense, the popular traditions of resistance to these processes; nor is it the forms which are superimposed on and over them. It is the ground on which the transformations are worked. In the study of popular culture, we should always start here: with the double-stake in popular culture, the double movement of containment and resistance, which is always inevitably inside it.”¹⁷ Over this “battlefield,” the dominant culture will try to “disorganize and reorganize” social meaning as it attempts to settle definitions and fix forms. But the dominant culture always encounters resistance points at which these forms are re-articulated and redefined as acts of “refusal.” From this vantage, it would be a mistake to understand popular culture as either entirely saturated and corrupt or entirely authentic because it is somehow people’s culture.¹⁸ And so it is with all social forms. Following the Soviet literary theorist V. N. Volosinov, Hall reminds us that all classes use the same language and that “differently oriented accents intersect in every ideological sign.”¹⁹

Hall’s theorization owes something to Raymond Williams’s notion of popular culture as an “uneasy mixture” of radicalism and adaptation.²⁰ But in its theorization of the “refusal” of dominant culture, it also shares something with the Frankfort School’s lesser-known analysis of not the bleakness but the utopian dimension of mass culture. Although Hall himself is less inclined to think of the double movement of mass culture in terms of the concept of utopia, other culture theorists have found in mass culture a desire for something better, a utopian urge that balances the degradation of consumer culture with a promise of community and plentitude. In Walter Benjamin’s dialectic of the commodity, we find an intimation of this revolutionary social transformation, and certainly it is there in Ernst Bloch, who even saw a connection between the goals of revolutionary struggle and the human “liberties” and aspirations found in natural law.²¹ But the idea of utopianism in mass culture has had to be reformulated for the contemporary period, the period within which we suspect that consumer culture is exponentially taking away more than it is offering. The classic statement of why we find a utopian dimension at all within contemporary mass culture is Fredric Jameson’s theorization of the “fantasy bribe”: “[T]he works of mass culture cannot be ideological without at one and the same time being implicitly or explicitly Utopian as well: they cannot manipulate unless they offer some genuine shred of content as a fantasy bribe to the public about to be so manipulated.”²² And here is where I find my analogy between mass culture and legal discourse. For in order for the law to have viability at all, it too needs to hold out that “genuine shred” of something, and it does so in the promise to uphold rights, to secure benefits equally, and to ensure “liberty.” But the law holds out this promise, not to manipulate but to respond to its constituency. It cannot rule without seeming to be fair, and without seeming to be fair it cannot secure the consent of those whom it governs. To secure a viable consensus, the law must work for those out of power as well as for those in command of it, and to this end, the law will under some circumstances even undermine the long-term interests of those who are most able to make it work for them.²³ Some of the more dramatic illustrations of this point occur in the literature on Anglo-American slave law.

The approach to the law that finds it open to struggle and movement has been worked out by historians Eugene Genovese and E. P. Thompson. In Roll, Jordan, Roll, Genovese discusses the adherence of the Southern states to the legal principle of the slave as property. Pressed to its logical conclusion and held to its word, however, the “slave as property” argument produced not the slaveowners’ desired result but quite the opposite. What it produced was not the protection of real estate property but rather the enactment of prohibitions against punishment invo...

Table of contents

• Cover Page
• Contested Culture
• Copyright Page
• Dedication
• Contents
• Foreword
• Preface
• Acknowledgments
• Chapter One: On Likeness
• Chapter Two: Photography “Surprises” the Law
• Chapter Three: Dead Ringer
• Chapter Four: “These Boots Are Made for Walkin’”
• Chapter Five: Reading Star Contracts
• Chapter Six: Dracula and the Right of Publicity
• Chapter Seven: Superman, Television and the Protective Strength of the Trademark
• Chapter Eight: Conclusion
• Notes
• Bibliography
• Index