What fandom and cultural context can tell us about the Obama Hope controversy

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Creative Commons photo of La Justicia no es ciega in Chile-- Another interpretation of the Roman Goddess Iustitia with her scales broken

There’s been much bloggage about the AP-photo based Shepard Fairey Obama Hope poster, but one issue I haven’t seen discussed in the midst of discussions about fair use (or copyright violation) is the role that cultural context can play. A related issue is the attribution/ownership/licensing of the original photo, discussed on Fresh Air — plus the initial filing in the suit (PDF).

So what role can cultural context play in quoting / remixing / appropriating /  the work of another? I give you

(Lady) Justice metal-style and

(a) Supreme Court Justice’s Imagin(ation).

Unless you are a fan of metal or hardcore, you are likely unaware of the deep admiration that The Dillinger Escape Plan and Metallica have for each other (NSFW info).

Based on this mutual crush, DEP made a shirt with the graphic to the left available for sale for one day only, with Greg ranting on their blog (entire post Greg-style NSFW):

Here’s a preview…(please don’t sue us Lars! I know you’re reading! It’s an homage!!!)…
Inspired by the Metallica album “…And Justice For All”, and the lady justice visual, this limited edition “82588 : NO JUSTICE FOR ANY” shirt features a headless Lady Justice crumbling and falling apart on the front, with “Dillinger Escape Plan” written in the classic Metallica “Justice” font at the bottom, and the uneven scales of justice being tipped by money on the back. … Then after you order one make sure you listen to something gnarly off of that album like “Dyer’s Eve”, or “Shortest Straw”, or the middle part of “Blackened” on a loop for 30 minutes…

So for you non-hard music fans, your eyes have glazed over, so how about some cultural context about Lady Justice and and the imagery as used by Metallica? For anyone who is within the metal/hardcore subculture, the shirt is meant to honor the contributions of Metallica as almost legendary — their music, their imagery, and their importance. Yet it uses much of the original to make its point.

Would this quoting or homage count as fair use under copyright? Especially for those in the know, it uses a large amount of the original, yet does so in a call-back respectful way — NOT as a parody. Oddly enough, if the DEP used musical elements that recall Metallica, yet sound different, this community may consider it to be more of a “copyright” violation than this shirt. And note that the idea of symbolic justice, even justice being destroyed  — as portrayed in a similar means by Lady Justice — is an idea that has been portrayed elsewhere because of its larger cultural resonance.

So moving beyond copyright — what about possible confusion / dilution of trademark issues? Metallica does not seem to have a trademark in the complete imagery — Doris, the Metallica stylized writing, etc, but they do have a trademark on the well-known stylized Metallica writing — 2213592 & 2038081. But would a reasonable hardcore fan get confused by the two? Hardly! That is about as likely as confusing The Mechanix with The Four Horsemen!

One of Metallica's trademarks

Another divergence about cultural context and fair use — think about John Lennon’s song Imagine, about an idealized possible world that includes lyrics mentioning a lack of religion. If you owned the copyright and were protective of the song , you might not want it to be used without your permission to compare life without religion with communist dictators. And sue the filmmakers.

But why would the filmmakers want to use *that* song? Because it has has larger cultural resonance — a larger cultural meaning that Supreme Court Chief Justice Alito uses in his majority Free Speech clause ruling in Pleasant Grove City, Utah v. Summum (PDF), quoting the entire song lyrics in a footnote (footnote 2). To make this almost time-travel circular, now can I quote the footnote to make a point about the case? What about John Lennon and Imagine? If it’s good enough for the Supreme Court and fair use, what about regular people?

I hope when a court determines whether the use of the image from an AP photo by a freelancer remixed by an artist into a new work is fair use the transformative cultural context is considered. After all, this image now has a larger cultural significance — hanging in both the National Gallery and on flagpoles all over Chicago.

Whitehouse.gov and our first social media presidency

white-house-pictureLike a lot of geeky people, I spent much of Inauguration Day (and night) online, riveted to the live streaming feed on CNN and also following the commentary of friends and strangers on Facebook. It was well noted that the transition of whitehouse.gov to reflect the Obama administration occured at noon, before Barack Obama even finished taking the oath of office.  

Of course we should have expected nothing less from our online-savvy President’s communication team. Social media was such a core part of the success of his presidential campaign and continues to be a  key element of his communications strategy. Check out this first post on the Whitehouse.gov blog from Macon Phillips, the White House Director of New Media (lucky guy):

Millions of Americans have powered President Obama’s journey to the White House, many taking advantage of the internet to play a role in shaping our country’s future. WhiteHouse.gov is just the beginning of the new administration’s efforts to expand and deepen this online engagement.

medium_whscreenshotAnd it seems off to a good start, with this seamless transition of the web site and the launch of the new blog.  According to Phillips,  the new Whitehouse.gov plans to focus its communication strategy around three priorities: communication, transparancy and engagement, which should be the three crucial priorities  for any organization’s social media initiatives.

I’m interested to see how all of this will pan out in the next four years, when the Obama presidency will surely face new and underheard of challenges. Social media can be a boon as well as a burden to an organization’s communications when it comes to crisis management and damage control. We’re in the exciting honeymoon phase of  the Obama presidency now; how the White House’s  new media team handles its first major crisis will be the truest test of the strength of this new approach to government online communications. 

Also, I just have to note that thus far, the Whitehouse.gov blog is still looking pretty Web 1.0 in its approach; it’s essentially just a glorified press release archive, and I’m not seeing much opportunity for authentic dialogue. Even so, this statement from the first blog post is encouraging:

Like the transition website and the campaign’s before that, this online community will continue to be a work in progress as we develop new features and content for you. So thanks in advance for your patience and for your feedback.

A work in progress. That’s what most online communities are, even the bottom-up communities that emerge organically by necessity and/or mutual enthusiasm (say for example, most online fan communities.)  

But for top-down online communities, organizations looking to create and engage an online community built on two-way communication, it’s an uphill battle, particularly if the organization has a history of ignoring or supressing public dialogue.  You don’t get more traditional top-down communications than the White House; there’s a lot of communication strategy that may need to be unlearned here.

But it’s what most organizations who are experimenting with social media are attempting to reconcile in their own strategies, and whitehouse.gov is wise to acknowledge the potential roadbumps early, and in a very public way.

Our first nerd president?

Arguably, Obama is the first nerd president. (Considering that Thomas Jefferson’s books were the basis of the Library of Congress, my vote is for second nerd president).

Obama, who collected Spider-Man comics as a kid, has now appeared in a sold-out Spiderman comic.
And while Obama has more pressing problems to fix — like the economy — there are “nerd” issues that should be considered, such as intellectual property policy.

The Obama campaign, in Technology and Innovation for a New Generation stated

Intellectual property is to the digital age what physical goods were to the industrial age. Barack Obama believes we need to update and reform our copyright and patent systems to promote civic discourse, innovation and investment while ensuring that intellectual property owners are fairly treated.

Public Resource.org has five suggestions regarding how the government can better serve the public. They include

1. Rebooting .Gov. How the Government Printing Office can spearhead a revolution in governmental affairs…[including making government publications, including caselaw, available in an easier to access format]
2. FedFlix. Government videos are an essential national resource for vocational and safety training and can also help form a public domain stock footage library, a common resource for the YouTube and remix era.
3. The Library of the U.S.A. A book series and public works job program to create an archival series of curated documents drawn from our cultural institutions, …
4. The United States Publishing Academy. …
5. The Rural Internetification Administration …bring[ing] high-speed broadband to 98% of rural Americans just as the Rural Electrification Administration did for electricity in the last century.

While the incoming Obama administration is interested in these issues, some have serious concerns about the implementation. Siva Vaidhyanathan says

the General Services Administration is negotiating with YouTube (a Google service) to post federal hearings, etc.

… there is no clear reason for the government to solidify YouTube’s market dominance. In fact, there is no reason why the GSO could not mandate that all federal agencies post their videos in open forms — accessible, repostable, and mashable — on their own sites.

Then We the People could repost them on YouTube with commentary and maybe some cartoon graphics mixed in. Better yet, because .gov can’t deal with the bandwidth demands of too many folks pulling down popular videos, the federal government should post open format video as bittorrent files.

Maybe the Obama administration can help explain why Nancy Pelosi has Congress’ Youtube channel intro video hosted by cats, Capitol Cat Cam, — with a Rickroll (question: is including a section of Never Gonna Give You Up fair use? I doubt the lawyers of the RIAA would think so!)

Using Social Media Tools Effectively: Part One: The Obama Campaign

One of our areas of focus this year is the effective use of social media / social netwObamaorking tools. At this point, we are planning to write about Planet Money, and Nine Inch Nails (yay!), but we are starting the series with the Obama campaign.

Of course, we all know that Barack Obama was not the first social media/Internet presidential candidate, that was Howard Dean back in 2003-04. The Obama campaign’s strategy with social media was built off the template established by the Dean campaign:

  • engaging supporters and organizers intimately and directly via social media
  • drawing influence from viral, bottom-up marketing strategies
  • depending on the aggregated impact of indivduals’ influence, Tipping Point style

Back in 2003, it was Meetup.com and blogs. The Obama campaign has MySpace, Facebook, Twitter, and not to mention MyBarackObama.com

Last week at my job, the day after Election Day, a co-worker and I talked about Barack Obama’s successful campaign, its use of social media and more to the point, what will be done with all the  user data, access and influence acquired through the campaign’s social media initiatives? Now that Obama is president-elect, would he and his staff use these tools to promote his political agenda and perhaps lead to greater transparancy in the White House? Less than a day later, our answer came in the form of Change.gov, which appears to piggyback off of the success of the Obama campaign’s social media efforts:for a start, there’s a blog (not a great one, seems like rehashed media statements), a page inviting users to share their Election Day stories, and a link to official presidential transition documents.

Actually, the UK has been a pioneer in this level of transparency in government from back in 2003 with direct.gov.uk, the official website of the UK government, which provides documents and information to users.  In this article from UK magazine .net, MP Tom Watson talks the future of transformational government and the Internet:

Government 2.0 is a dreadful term but I can’t think of a better one that adequately gets over the point that public services have got to be more personal and responsive to the collective voice of their users and that there’s a very big shift happening in the way people live their lives and use services. The public sector is not immune to this. It goes back to my original point about wrapping services around the user in a form that works for them.

It’s an early start for Change.gov, but a step in a very interesting direction for this nascent administration and its efforts to engage and motivate its supporters.

The social and economic impact of comics: Kami no Shizuku and Marvel’s Colbert presidential campaign

Interested in finding the right wine or electing the right candidate? Look no further than comics! Kami no Shizuku (The Drops of the Gods), a Japanese manga series is influencing wine purchases across Asia, and the U.S. has had Stephen Colbert as a Marvel superhero comic book presidential candidate.

As mentioned in articles in the Japan Times and the International Herald Tribune (then reprinted in the New York Times with new photos), Kami no Shizuku has been one of the factors in increasing wine consumption across Asia, including a twenty percent increase in Japan. Specific wines also increase sales after being mentioned — Colli di Conegliano Rosso Contrada di Concenigo saw an increase of 30 percent in sales.

But there have been unpredictable consequences of the sommelier suggestions, including

there was so little demand for Burgundy that even top hotels did not bother stocking it. But after the comic extolled Burgundy’s virtues, stores and hotels scrambled to secure stocks, which immediately sold out.

The main character, Shizuku Kanzaki, describes a 2001 Bordeaux from Château Mont Perat as

“It’s powerful but it also has a meltingly sweet taste, with an acidic aftertaste that catches you by surprise. It’s like the voice of Queen’s lead vocalist [Freddie Mercury], sweet and husky, enveloped in thick guitar riffs and heavy drums.”

The idea of a well-received wine-based manga is not strange within the general context of manga. While in the U.S., comics are viewed as the domain of children, in Japan (and increasingly with South Korea’s manwha) manga is read across the age spectrum, with specialty publications, based on gender and interest. For example, there are two successful transmedia franchises based on tennis, one for boys, Prince of Tennis, and one for girls, Ace o Nerae!.

Colbert as President?Moving from the impact of fiction on real life, we move to the impact of a fictionalized version of a real person fictionalized further. Stephen Colbert’s quasi-fictional presidential aspirations were considered to be important enough to be discussed by the Wall Street Journal. According to Marvel, this ten-month campaign was a first,

never before has a real-life person been able to keep himself in the narrative for so long without it being a paid product-placement arrangement

The differences between reality and fiction are striking:

Last October the comedian announced on his show, “The Colbert Report,” that he was running for president. The Democrats declined to put the entertainer on their primary ballot, and Mr. Colbert didn’t pay the Republican’s $35,000 fee to get on their ballot.

Mr. Colbert’s candidacy .. was integrated into Marvel’s fictional landscapes with bumper stickers, T-shirts and billboards … in at least 19 of its titles, including “She-Hulk,” “X-Men: Manifest Destiny” and “Secret Invasion.” [He also appeared] as a walking, talking cartoon character in an eight-page insert in “Amazing Spider-Man”.

But the interaction between the reality and fiction leads to an interesting result, with this example of authorized real-person fanfic leading to increased sales for Marvel.

Blurring the line between fiction and reality leading to real-world economic impact has every indication of increasing. It’s interesting to note how much has changed since the guest star as him/herself era to improve rankings in the 70s. I’m looking forward to how this will impact rights of publicity versus creating an accurate/reality-based fictional universe — will licensing increase or will disclaimers? And what happens if instead of increasing sales or viewership, negative statements within the fictional universe have a negative economic impact, such as a negative wine review in Kami no Shizuku?

More on Barracuda, copyright, and politics from Siva Vaidhyanathan and Foo Fighters

As I previously wrote about in my post, Heart’s Barricuda: A lesson in licensing, ownership, politics, and moral rights, politics and artists have clashed regarding political theme songs.

Christopher Sprigman and Siva Vaidhyanathan have an editorial in the Washington Post on this issue (thanks to Madisonian/Ann Bartow for the headsup):

Artists should speak up, loudly, when they feel the use of their songs misrepresents their views, particularly if such use could create the public impression of an endorsement.

If artists start trying to pick and choose who is eligible for a blanket license, the efficiency of the system would be destroyed. The McCain campaign has continued to play “Barracuda” since the Republican convention precisely because it cleared the license for such use with ASCAP. The campaign paid for the use of “My Hero” as well.

The second reason is more fundamental. Politicians use songs as a way to tell people what they stand for — or at least what they want us to believe they stand for. Using a song to communicate a political message is just the kind of speech the First Amendment was designed to protect.

Recently, Foo Fighters’ Dave Grohl has also stated his objection to the use of “My Hero” at McCain campaign rallies:

“The saddest thing about this is that `My Hero’ was written as a celebration of the common man and his extraordinary potential,” the Foo Fighters said in a statement. “To have it appropriated without our knowledge and used in a manner that perverts the original sentiment of the lyric just tarnishes the song.”

Artists are paid when their songs are used in adverts by their own choice. Plenty of artists consider their works to be part of an artistic vision. In addition, when they do not live up to what fans want from them, they are frequently viewed as “sell-outs”. I’m not sure how to solve this problem; as Sprigman and Vaidhyanathan mention the present system does allow for more expression and is economically more viable then an opt-out model.

Perhaps what is needed is a musical version of the McCain-Feingold campaign ad message, “I am X candidate and I support this message” to a “Y artist does/does not support this candidate”. At least that will prevent confusion about endorsements while not dealing with the hurt feelings/moral rights of the artists.