I read a book: Cognitive Surplus: Creativity and Generosity in a Connected Age

Until recently, Clay Shirky was best known as the author of Here Comes Everybody: The Power of Organizing Without Organizations. The book  was widely praised (seriously, Boing Boing calls it a “masterpiece”) and is still referenced  by social media strategist/expert/guru types as a must-read for anyone looking to explore the social dynamics that drive the use of technology, which at the time (and even now, to a certain extent) is not what drives most conversation about the internet and social media in particular.

Rather than focusing the catalyst of online social behavior on specific technologies  (i.e. what makes Facebook so popular?) Shirky argued that social tools facilitates common group behavior, conversation and social interaction. At the time, the beginning of Facebook’s online dominance and in the midst of growing fascination and panic about social media from the mainstream press. Shirky presented a reasoned, articulate and well-researched argument that the idea of “crowdsourcing” was not a new idea, but actually rooted in common, even traditional social interaction. The Internet just made that interaction happen more widely and more rapidly.

If you talk to any social media/internet  “expert” or “enthusiast” these days, this perspective is seen as common knowledge, but without Shirky’s well-presented theory and research to bolster this theory it wouldn’t have taken root.

In 2010, you’d think that this argument wouldn’t need repeating or clarification, but as traditional media continues to evolve and digital use continues to grow and become more ubiquitous, the panic of social theorists and mainstream media commentators continues unabated. The continuing debate of whether the Internet makes you smarter or more stupid seems to have a new chapter each day, but in Cognitive Surplus, Shirky’s latest book, he does add fuel to that fire, but also offers a modified version of his Here Comes Everybody thesis: The Internet has given us the tools to create, publish and share media  faster, cheaper and with more people than ever before

Shirky’s revised thesis is the reason that I think Cognitive Surplus is a must-read (there’s that term again) for media professionals in every field.

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Transformative Reinterpretation or Total Rip-off?: Namie Amuro and Copy That

At what point is copying

  • homage (as a way of honoring and being respectful of the original)  even through direct copying?
  • transformative (in the traditional copyright sense) as building upon the original to create new meaning?
  • or copying as a means of economically exploiting copyrighted works?

This first post in a series about the difficulties in making this distinction focuses on three different examples of how difficult it is to carefully draw these lines, focusing on Japanese pop star Namie Amuro’s Copy That (official Vidal Sassoon music video-ish commercial above), and later posts will focus on Glee’s Madonna and Lady Gaga episodes, and Christina Aguilera’s Not Myself Tonight video (and dance responses), and other similar situations.

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‘Cause we’re freak remixers baby!: Lady Gaga and remix culture

On this blog, we write often about the value of fan-created works, about how fans use their creativity, using works created and owned by others. And fans of Lady Gaga has been very busy, remixing and reusing both the video and song, Bad Romance. They vary in quality and skill, but most convey the message of “This is so cool — and I want to be part of it!”

Additionally, complicating matters, legally there is a difference between the use of a work in the entirety (such a cover version) and sampling, and between using the style of a video and the music — but for fans, these distinctions don’t exist. And the parody (making fun of this work) / satire (using one work to make a statement about something else), truly falls apart in the midst of montage/collage/remix culture, where one work can simultaneously have multiple messages.

Two years ago, American University’s Center for Social Media released a study, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, suggesting strongly that remix culture is not only socially acceptable, but should also be legally acceptable because transformative reuse falls within the fair use exception/defense to copyright.

Lady Gaga’s Bad Romance song and video have proven to be the source material for all but one type of the nine types of reappropriation discussed in the study.

The types — in order of their frequency in my wholly non-statistically valid study (i.e. I watched lots of videos!), considering different types can exist in the same video:

  • Pastiche or collage: Several copyrighted materials incorporated together into a new creation, or in other cases, an imitation of sorts of copyrighted work: I subdivide these works into two different categories — the homage and the sample — both used extensively by remixers of Lady Gaga’s work.
  • Positive commentary: Copyrighted material used to communicate a positive message: Such as taking the “We traveled 10,000 miles to say we love you, Lady Gaga” approach.
  • Parody and satire: Copyrighted material used in spoofing of popular mass media, celebrities or politicians: Lots of examples, but have yet to find a good one.
  • Negative or critical commentary: Copyrighted material used to communicate a negative message: Many of the parody/satires included negative views of Lady Gaga, especially her physical appearance.
  • Quoting to trigger discussion: Copyrighted material used to highlight an issue and prompt public awareness, discourse: Such as commenting about Lady Gaga’s support of the GLBTQ community
  • Illustration or example: Copyrighted material used to support a new idea with pictures and sound: Such as quick, small, samples.

For these next two types, I don’t have examples below the jump — considering the always existing threat of takedown notices, I don’t want to be responsible for publicly pointing out kids having fun at concerts!

  • Personal reportage/diaries: Copyrighted material incorporated into the chronicling of a personal experience
  • Incidental use: Copyrighted material captured as part of capturing something else

The one type missing missing from these reuses is:

  • Archiving of vulnerable or revealing materials: Copyrighted material that might have a short life on mainstream media due to controversy. While Lady Gaga is controversial, there isn’t a need to archive this specific time.

Below are examples of some of these varied uses of the original — starting with the original official music video — from the official YouTube Channel.

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One Nation Under a Groove: Intellectual Property and Hip Hop

When is something a quotation or a reference and when is it a sample that needs to be licensed? According to a recent Sixth Circuit decision regarding Atomic Dog, Bridgeport Music v. BMG Recordings, No. 07-5596, November 4, 2009 (no official citation yet), a copyright violation can be found when no licensing fee is paid for

use of the phrase “Bow wow wow, yippie yo, yippie yea” (the “Bow Wow refrain”), as well as use repetition of the word “dog” in a low tone of voice at regular intervals and the sound of rhythmic panting

One of the many interesting aspects about this case is that George Clinton, the performer and co-author of the song, has no dog in this fight, despite the fact that he is so closely tied to the song. As described in the excellent documentary, Parliament Funkadelic: One Nation Under a Groove, P-funk and George Clinton lost the rights to their own music. (On a tangent: I highly recommend this documentary (shown usually during Black History Month on PBS) — and not just because Shock G appears to be interviewed while completely off his gourd).

But the issues about copyright explored by the Sixth Circuit don’t touch on the songs larger cultural significance, instead viewing the importance of the song through an economic lens:

“Atomic Dog” “is an anthem of the funk era, one of the most famous pieces from that whole era . . . one of the most famous songs of the whole repertoire of funk and R&B.” In addition to the song’s continuing popularity on its own, “Atomic Dog” and other works by Clinton and Parliament-Funkadelic are said to have influenced many contemporary rap and hip hop artists, with the most notable being the style of rap popularized by West Coast rappers such as Dr. Dre, Ice Cube, Snoop Doggy Dogg, and Coolio. [note: The court couldn’t have left it at three. Really!?!] …

Testimony at trial confirmed that “Atomic Dog” and other works by Clinton are among the most popular works sampled by rap and hip hop artists. According to an expert musicologist, the Bow Wow refrain “is one of the most memorable parts of the song” and is often licensed by itself.

UMG failed to introduce any evidence that would have explained why the songwriter chose to include elements of “Atomic Dog” to honor George Clinton, nor was the purported tribute acknowledged in the credits or liner notes to the album.

Two recent books explore the interaction between intellectual property (mostly copyright) and hip hop culture — Adam Haupt’s Stealing Empire: P2P, Intellectual Property and Hip-Hop Subversion and Richard Schur’s Parodies of ownership : hip-hop aesthetics and intellectual property law. Both books explore and apply Henry Louis Gates’ idea of the importance of signifyin’ — a metaphor for textual revision — located in African-American culture and globalized via hip-hop.

Stealing Empire is valuable for its analysis of the impact IP regimes on South African culture. And it is therefore useful for a reader with a literary / cultural / media studies perspective; the legal analysis is less useful because it does not distinguish between differing jurisdictions.

Parodies of ownership : hip-hop aesthetics and intellectual property law
is a excellent edition to both the fields of critical race theory and cultural studies, and adds greatly to the ongoing discussions of power and control regarding intellectual property. This book is yet another book published this year that is highly recommended.

One of the most intriguing aspects of this book is Schur’s suggestions for erasing the invisibility aspect of intellectual property law:

[Judge Richard] Posner [and others] conceive of originality, fair use, and transformative use as transcultural and color-blind strategies to regulate the circulation of texts, including raced texts. [They] do not connect texts to specific genres, to cultural traditions, or to how popular culture’s taste [] derive, in part, from interactions with America’s racial history. (144)

He suggests specific challenges/suggestions to intellectual property law (especially in the U.S.), including mentioning fan culture(s):

African American culture has engaged in a rigorous discussion about the right to copy (i.e., sampling versus biting) …. [but law has] adopted color-blind rhetoric [so] such cultural distinctions have not been judicially sanctioned even if they structure how audiences understand hip hip texts.

Attempting to remedy the inefficiencies or absurdities of intellectual property law without referencing its complicity in the de facto and probally de jure transfer of wealth from African Americans to white Americans is unlikely to prove successful. Resolving other cultural/economic conflicts, whether they involve fan fiction or unauthorized music trading, probably requires engaging with histories of discrimination and power inequalities, not simply a slight tweaking of abstract legal formulas. (179)

But both books are sans any pictures (let alone an audio or video accompaniment) leaving the analysis missing the “quotation” that is so needed here to provide a complete picture of the richness of the music at issue. I’m not sure that the Pokémon vid above is the best illustration, but if you didn’t know Atomic Dog, wouldn’t it better help you understand what is at issue?

And that brings us back to where we started with George Clinton and Atomic Dog — when is something a quotation or a reference and when is it a sample that needs to be licensed? Or as Richard Schur states in Parodies of Ownership,

the question of who owns the imaginary domain out of which African Americans form cultural identity remains unanswered (23)

I got my propaganda, I got revisionism: Book Review: Che’s afterlife : the legacy of an image

Is art (always) resistance?

Popular version of original photo by Korda

The paradox is to wield Che in an attack on [capitalism], its critics must participate in it. They engage in the act of consuming Che.

As Michael Casey describes in his excellent social history, Che’s afterlife : the legacy of an image, the meme of one captured moment in the life of Argentine/Cuban revolutionary Ernesto (Che) Guevara has an amazing cross-cultural resonance (pdf). According to the curator of a 2006 art exhibit of Che-based art, this is the most reproduced image in the history of photography.

Casey says that

Che is now everywhere. In its common form as a two-tone abstraction of Alberto Korda’s famous 1960 photograph, his image is simultaneously a potent symbol of resistance in the developing world, an anti-globalization banner, and a favored sales vehicle among globally engaged marketing executives.

Jim Fitzpatricks Che

Jim Fitzpatrick's Che

So how did this happen? The book details how while

the compelling events of his real life and the story of its violent end perpetuated his legacy, it took the mass replication, reproduction, and marketing of the Korda photo to years later transform him into a pop superstar of immense iconic pow

But this visual meme happened due to a confluence of influences:

Political opportunism, the publishing industry, photography, silk-screening, pop art, graphic design, computers, the Internet, copyright laws, and consumer-marketing theories have all collaborated in the maintenance of Che’s afterlife.

According to Susan Scafidi on Counterfeit Chic, the flattening of the original meaning has been flattened in a way to allow for all of these varied meanings:

The specific message of the image, however, has decreased in inverse proportion to its popularity. Viva la revolucion? Power to the people? Overthrow the capitalist pigs? Or just a dramatic, vaguely rebellious image? You decide.

The Warhol Che -- though not created by Warhol, nevertheless authenticated

The "Warhol Che" -- though not created by Warhol, nevertheless authenticated

This book has much to give to those interested in history, art, marketing, and the flow of culture, and especially appropriation art, but it also has lots of interesting gems regarding intellectual property — including moral rights. Because the author isn’t a lawyer, sometimes he doesn’t always use the correct law-talking terminology, but the description is vivid.

For example, Casey discusses the complicated issues surrounding the picture to the right. Taken from the Fitzpatrick art print of the original photo, an anonymous artist created a work that was attributed to Warhol — who then certified the work as authentically Warhol — even though it wasn’t!

But where Casey really explains the complexity of intellectual property and its relationship to culture is when he describes how the copyright and trademark of the image is now closely protected, though

During the preceding thirty-seven years of legal inaction, the image effectively roamed the world copyright free as producers of derivative art exploited it without paying fees. It functioned much like an open standard …it was a freely available template to which others could apply their inventive talents. This de facto public domain status facilitated an explosion of creative expression, as artists, satirists, and political commenters took to the image with glee. Some were faithful to the Cuban government’s socialist representations of Che; others not. Neither group had to worry about lawsuits.

The present situation of public domain versus ownership of the image is complicated by differing international standards concerning the copyright (Cuba had rejected copyright in 1967), trademark, and moral rights. Casey expands on how the IP-protected version of  “Che” competes with the publics version of Che — and how difficult it is to undo the public ownership idea of this image.

And according Ben Ehrenreich in the L.A. Times, Che continues to influence us, claiming that Fairey Obama poster is based on the famous Che imagery:

Fairey’s Obama is not wearing a beret, and he’s looking left instead of right, but his face tilts at the same angle as Che’s. His jaw is set with the same willfulness and strength, and he too is gazing recognizably upward into the future …. Obama’s eyes, though, are filled not with righteous anger but with vague and lofty hope.

So that does mean that the Hope poster is really a mashup between Che and the AP photo? It seems at least it is intended to be at least evocative of our cultural memory!

In a Barbie World?


I come neither to bury Barbie nor to praise her, but to acknowledge her larger cultural role, after turning fifty this year.

And she has played an important role in several reported IP disputes (and many more unpublicized ones) — and likely more in the future. I think an entire intellectual property class could be built around Barbie — considering that are publicized claims/suits on copyright, trademark, and trade secrets.

So what makes Barbie matter so much?

For most girls in the U.S. and in many other countries, playing with Barbies is part of their childhood–dressing them over and over again, putting their ridiculous shoes on after falling off, taking them out for a drive in her RV, arranging the furniture in her dreamhome. Oh, and arranging the most scandalous weddings! In many families, Barbies are passed down from sister to sister, mother to daughter (assuming that they survive having their heads popped off, fighting with G.I. Joes, and being parachuted out windows).

The Barbie experience is part of the cultural memory of girls and women, despite the brand being owned by Mattel.

According to Naomi Klein in No Logo, the lawsuit against Aqua’s Barbie Girl:

highlighted the uncomfortable tension between the expansive logic of branding — the corporate desire for full cultural integration — and the petty logic of these legal crusades. Who if not Barbie is as much cultural symbol as product? Barbie, after all, is the archetypal space invader, a cultural imperialist in pink. She is the one who paints entire towns fuchsia to celebrate “Barbie Month.” She is the Zen mistress who for the past four decades has insisted on being everything to young girls — doctor, bimbo, teenager, career girl, Unicef ambassador….

So what makes *this* use of Barbie acceptable, yet Barbie Girl isnt?

So what makes *this* use of Barbie acceptable, yet "Barbie Girl" isn't?

According to the Barbie website,

Creativity and inspiration is in Barbie® doll’s DNA. Artists and designers from around the world have been inspired by her, whether using Barbie as a muse for fashion design or using the famed image of Barbie for a painting

While supporting some artistic reinterpretations of Barbie, Mattel, the owner of Barbie, has been very aggressive in defending their intellectual property rights.

This could be considered *not* cultural critism?

This could be considered *not* cultural criticism?

Aqua’s Barbie Girl (video above) is only the most well-known of the Barbie cases, but some other famous cases of aggressive IP protection include: Distorted Barbie and Forsythe’s Food Chain Barbie.

According to Freeculture.org:

The Forsythe case highlights the increasing challenges faced by those who wish to comment on popular icons, symbols, or cornerstones of culture, most of which are copyrighted by large corporations. “If you want to talk about the problems with society, all of the widely recognized figures are copyrighted,” says Nelson Pavlosky of Freeculture.org. “In the past, cultural icons belonged to everyone…[now] if you want to use a relevant character to critique society, you’ll get burned by companies who can silence you, not by winning in court, but by outspending you and forcing you to cave in or lose all your money.”

And Barbie has lived up to the last sentence — challenging some very obvious cultural critiques with small pockets. Adiós, Barbie is now a website (and blog) about positive body image for girls and women, though it started as a book, called Body Outlaws: Rewriting the Rules of Beauty & Body Image for its third edition:

The book book launched in 1998 under the name Adios, Barbie. It was all good for a year, until Mattel delivered my publisher a lawsuit, claiming a trademark violation. Shunned from the Dreamhouse, we agreed to change the book’s name and cover.

But what about the idea of a Barbie mashup? New York Law Revue’s Bar/Bri Girl (video above) takes the idealized clueless version of Barbie — as seen through the lens of Aqua — and pairs her with Bar/Bri, the law bar prep service. While both Bar/Bri and Aqua’s song are the focus, the cultural influence of Barbie is evident.

Original Flavor -- Barbie as Mashup, Star Trek Style

Original Flavor -- Barbie as Mashup, Star Trek Style

One final note, while trying to find pictures to illustrate some of the points made in this post (“fair use”!), I decided to go to the source — Barbie — rather than just doing an Google image search, or from news articles, or from sellers. When I found pictures and tried to copy, this was the pop-up:

This image is copyrighted, and it is owned by Mattel.  You may not reproduce, distribute, publish, transmit, modify, adapt, translate, display, sell, license, publicly perform, prepare derivative works based upon, or otherwise use or exploit this image.

New! Barbie as Mashup -- Star Trek style

New! Barbie as Mashup -- Star Trek style

Wow! It seems like Barbie doesn’t just think math is hard — but still  really doesn’t like fair use!

Book Review: David Bollier’s Viral Spiral: how the commoners built a digital republic of their own

David Bollier’s Viral spiral : how the commoners built a digital republic of their own is a very good book with a horrible title. While there are many books about various elements of free/open-source software (like GNU/Linux), Creative Commons licenses, peer production (remix and mashups), and open models for success (Wikipedia, open science, open education, and open business), I think this is the first book to discuss these within the context of a social history.

So why is a social history so important? There are other books that discuss what the commons is or what it could be, but this is the first book to truly try to capture the process of creating the framework for the commons by theorists and practitioners. In reading several sections, especially on Creative Commons, I felt like I understood better how the process evolved. Where we are now doesn’t just happen, people create it, and there are missteps and corrections made. Viral Spiral helps to see the warts-n-all process, rather than just showing things as they are now.

So what are the issues with the book?

First, the term, viral spiral. Just no. Bollier does make a good argument for his term — but it just doesn’t have the right sound to it — or capture the holisticness of the idea. My suggestion would be participatory meme (but even that doesn’t quite get there). Maybe Henry Jenkins’ term, convergence culture?

Viral spiral is apt … because it suggests a process of change that is anything but clean, direct, and mechanical. …  Life on the Internet does not take place on a stable Cartesian grid—orderly, timeless, universal—but on a constantly pulsating, dynamic, and labyrinthine web of finely interconnected threads radiating through countless nodes. … Viral spiral calls attention to the holistic and historical dynamics of life on the Web, which has a very different metaphysical feel than the world of twentieth-century media.

Second, considering my interest in fans and fandom, it is interesting how few mentions of fandom there are in the book — excepting musical fandoms. There is the requisite Nine Inch Nails Ghosts mention and a discussion of the Grateful Dead bootleg policy (but no mention of the subsequent changes in policy).

Relatedly, there is nary a mention of pre-internetz created remix / fanworks forms such as vidding and fanfic — and therefore, this social history is incomplete, especially as related to (often-gendered-as) girl or women commoning activities. Additionally, since the book focuses on the names that made this possible (important for a social history), it ironically glosses over many of the small contributions of the commoners.

The gaps in the social history exist, but everything that is in this book is valuable, and likely would be lost but for this book. And this is the win quote from the book:

Individuals working with one another via social networks are a growing force in our economy and society. The phenomenon has many manifestations, and goes by many names—”peer production,” “social production,” “smart mobs,” the “wisdom of crowds,” “crowdsourcing,” and “the commons.” The basic point is that socially created value is increasingly competing with conventional markets, as GNU/Linux has famously shown. Through an open, accessible commons, one can efficiently tap into the “wisdom of the crowd,” nurture experimentation, accelerate innovation, and foster new forms of democratic practice.

This is why so many ordinary people—without necessarily having degrees, institutional affiliations or wealth—are embarking upon projects that, in big and small ways, are building a new order of culture and commerce.

The book has a Creative Commons license and is available as a free e-book; however, it is only available as a whole — rather than also as individual chapters. I understand this way makes statistical analysis of downloads easier — but sometimes one only wants to look at one chapter — or references!