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!

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You’re in the jungle, baby!: Book Review: Terms of Use: Negotiating the Jungle of the Intellectual Commons

In her “sequel” to No trespassing : authorship, intellectual property rights, and the boundaries of globalization, Eva Hemmungs Wirtén’s  Terms of use : negotiating the jungle of the intellectual commons discusses the idea of an information commons in a unique applied theory way, analyzing the way that cultural interpretation is a form of intertextuality.

The book is divided into four main sections — on the public commons as a physical space, on the public commons of patents, plants, and cultural knowledge, on taxidermy(!), and the public domain (Kipling and Disney). The book will be highly useful to those trying to understand public domain and commons issues from a non-law perspective — for those who are familiar with the names, if not the works of Jurgen Habermas, John Locke (not the one on Lost), and Henry Jenkins. Unlike some other books I’ve read by those without a legal background, the law is not stated inaccurately (Debora Halbert’s Resisting Intellectual Property Law is another great book in this subgenre).

All of the sections were interesting (including the section on taxidermy) and were based around the locus of jungle as place and idea, though I kept thinking of Sepultura while reading the plant/patent section. But considering the focus of this blog, the most useful sections to me involved copyright, cultural preservation, and cultural identity.

Wirtén defines what makes the intellectual commons different from a physical land commons:

The information commons is simply made of a very different raw material than soil, turf, and grass. Information-based resources are both non-rival (my use of information does not hinder yours; in fact, you and I can use the same resource simultaneously with no detrimental effect taking place), as well as non-excludable (intially, information can be costly to produce, but new technology makes it difficult to hinder an infinte number of users at zero marginal cost).(41)

Yet she sees that viewing the information commons with “an aura of utopia” is not a full picture:

Not seeing the internal lacerations, rips, and conflicts of interest contained within the public domain and the commons is more than counter-productive; it is dangerous. …Xenophobia, separating ‘us’ from them,’ is an element of the commons economy that displays its fair share of the ‘parochial and exclusive.” Disregarding the more unsavoury geopolitical realities of the information commons is to underestimate the sophistication of the power relations….(45)

Wirtén discusses the importance of libraries and other keepers of culture:

To answer the question of how precisely copyright affects cultural heritage institutions negatively, we must return … to … use. Libraries … [serve as ] symbolic space [as] both keepers of the material object the book and and in the sense of transmitting the content kept within that particular receptacle.

… At the same time, as libraries keep our books in trust for future generations, however they do this independent of the limitations posed by either material object or building. …Libraries today provide us with cultural works detached completely from traditional materiality.(131)

But she understands that technology is not a panacea or replacement for cultural institutions:

We have an extremely strong faith in the power of technology today — borderline religious zeal, even — to preserve and disseminate cultural expressions forever. We should be more skeptical about the presumption of eternal informational life. Similarly, we must not always assume that the separation of knowledge of use from the resource in question does not have an impact on the information carried by that resource, even when disembodied from its original host and made into bits and zeros that can be shared and reproduced infinitely. (149)

Wirtén discusses the ongoing impact of copyfraud, weakening the information commons:

A web of legal and extralegal control stations are posted everywhere, and if you are not vigilant, or just easily intimidated (which is is not that uncommon, considering the media coverage that surrounds copyright), you might end up paying for access to works that are in the public domain. Unfortunately, museums , archives, and universities whose role is to promote access to their materials, and who are among those hardest hit by and the most vocal opponents of intellectual property expansionism, are found among the offenders. (106)

Highly recommended, especially for those willing to see where the discussions of the intellectual commons can go, looking for the jungle’s “productive, rather than destructive” elements.(9)

Book Review: Remix: Making Art and Commerce Thrive in the Hybrid Economy

Remix: Making Art and Commerce Thrive in the Hybrid Economy, is the highly recommended third book by Laurence Lessig, focusing on why and how copyright laws need to be changed to allow for greater innovation. If you’ve read the two previous books The future of ideas: the fate of the commons in a connected world and Free culture: the nature and future of creativity — or heard one of Lessig’s exciting lectures, much of Remix will seem familiar, remixed with new examples of copyright owners pushing their rights beyond culturally acceptable bounds and why the time frame for copyright should be shortened, allowing works to enter the public domain.

But this book demonstrates the value of remixing, adding a lengthy discussion of the economics of two types of culture — commercial and sharing.

A commercial economy [is centered on] money or “price” [as] a central term of the ordinary, or normal exchange.

Of all the possible terms for exchange within a sharing economy, the single term that isn’t appropriate is money.

But Lessig discusses a combination between the commercial economy and the sharing economy — the hybrid economy:

The hybrid is either a commercial entity that aims to leverage value from a sharing economy, or it is a sharing economy that builds a commercial entity to better support its sharing aims.

If those within the sharing economy begin to think of themselves as tools of a commercial economy, they will be less willing to play. If those within a commercial economy begin to think of it as a sharing economy, that may reduce their focus on economic reward.

Much of Lessig’s discussion about hybrid economies is applicable to fan culture and other examples of participatory culture and user-generated content. He does use the examples of Harry Potter fandom (relying heavily on Henry Jenkins’ Convergence Culture) and Second Life.

We’ll be using this section extensively in our future writings, so our readers will be seeing much more of the ideas in Remix.

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.

Heart’s Barricuda: A lesson in licensing, ownership, politics, and moral rights

Do artists have control over the use of their songs? Should they? Most people would agree that an artist’s work being used to support a completely opposite position seems somehow wrong (such as John Lennon’s Imagine being used to sell cars). Heart’s song, Barracuda, was recently used by the McCain campaign at the Republican Convention and at rallies. I believe the statement of the McCain campaign that it paid all fees required. But Nancy and Ann Wilson of Heart strongly objected to the use of the song.

The Wilson sisters state:

We ask that our song ‘Barracuda’ no longer be used to promote her image. The song ‘Barracuda’ was written in the late 70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women. (The ‘barracuda’ represented the business.) While Heart did not and would not authorize the use of their song at the RNC, there’s irony in Republican strategists’ choice to make use of it there.

So assuming that the appropriate fees were paid, what is the problem? Heart doesn’t want their song played by certain people to promote their cause — yet ASCAP/BMI blanket licensing most likely don’t give them the ability to opt out or limiting of specific users of their music. Others have made legal arguments to prevent the use of Barracuda based on Lanham Act trademark claims and right of publicity of the members of Heart, but I think the larger issue is one of moral rights.

So what are moral rights? The Berne Convention lists the right even if the author does not own the copyright to:

  • the right of integrity: the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author’s honor or reputation
  • the right of attribution: the right to claim authorship of the work

Notice how similar these are to the license terms in most of the Creative Commons licenses.

After all, what is Heart worried about? That their song is being used to promote a position they don’t agree with — and by having their song used, it seems like they are Republican supporters. Based on the above quote, they would likely view this use as “derogatory” to their reputation. If the U.S. had a strong moral rights tradition, basing a claim on moral rights would allow musicians and others to prevent this type of use of their work.

Academics argue about whether moral rights exist in the U.S. and the general answer is that they should be recognized because the United States has signed the Berne Convention, but in practice, moral rights don’t exist (with the exception of visual artists, who have their own special law). The moral rights tradition is strong in most civil law countries, such as France, as well as Canada.

*Yes, I understand the irony of embedding the song here in a post commenting on the appropriate use of the song!