The Shittiness Of IP Law Has Taught The Public That Everything Is Stealing And Everyone Is Owed Something
from the the-market-value-of-seven-second-loop dept
In an article that's actually a bit (but just a bit) more thoughtful than the headline applied to it ("How Corporations Profit From Black Teens' Viral Content"), Fader writer Doreen St. Felix tackles the cultural appropriation of creative works. Sort of.
While the article does quote from a 2008 essay about the historical cultural appropriation of black artists' works by record labels, etc., the article does not point out any specific appropriation occurring here -- at least not in terms of the two creators St. Felix has chosen to write about. And it has nothing to say about how these corporations are "profiting" from this supposed appropriation.
One of those is Kayla Newman, whose offhand comment in a Vine video birthed a new slang term.
In the video everyone knows, uploaded on June 21st, 2014, Kayla admires her precisely arched eyebrows: “We in this bitch. Finna get crunk. Eyebrows on fleek. Da fuq.”Newman's Vine video has generated 36 million loops, moving "on fleek" from her lips to the Urban Dictionary and beyond. Some of those stops have been corporate. St. Felix points to IHOP and Denny's Twitter accounts' use of the phrase in an attempt to "feign cultural relevance."
That appears to be the extent of the "appropriation." No one's monetizing the phrase, nor have these corporate entities done damage to anyone but themselves by deploying it. Newman hasn't seen any money from creating the slang term, although it's not for a lack of trying.
“I gave the world a word,” Newman said. “I can’t explain the feeling. At the moment I haven’t gotten any endorsements or received any payment. I feel that I should be compensated. But I also feel that good things happen to those who wait.”The other artist quoted in the Fader article is a dancer named Denzel Meechie. Meechie performs improvised dance routines to various songs. This has earned him millions of views on YouTube. It has also seen his original account shut down by the rightsholders of the songs he dances to.
In mid-September, YouTube shut down Meechie’s channel, which had accrued hundreds of thousands of subscribers. “I had too many copyright strikes,” he said, referring to his use of songs without explicit legal permission from labels.Ironically enough, some artists whose labels have issued takedowns have actively sought out Meechie because of his viral cachet.
According to Meechie, labels contact YouTube and demand his videos be taken down, often without the knowledge of their own artists, some of whom pay him directly to help boost their buzz. “And it’s crazy, you know, because the artists ask me to put the videos up.”That's what happens when you turn over copyright enforcement to algorithms.
Once again, we're not seeing much evidence of corporate cultural appropriation of black artists' creations. But the essay St. Felix quotes from does have something relevant to say about the intellectual property power structure.
“Black artists had no input in [copyright law], and examination reveals that it is in some respects incompatible with Black cultural production in music,” writes Greene, arguing that multiple copyright standards were specifically structured to preclude black blues artists, especially women, from claiming ownership.It's not just black artists, though. It's all artists. Intellectual property laws have been refined by corporations and their lobbyists to provide the most protection for those with the means to benefit from extended copyright terms and ridiculously generous readings of trademark claims: corporations.
But K.J. Greene's next assertion (from her cultural appropriation essay) goes right off the rails.
“The idea/expression dichotomy of copyright law prohibits copyright protection for raw ideas,” Greene wrote. “I contend that this standard provided less protection to innovative black composers, whose work was imitated so wildly it became ‘the idea.’”Opening up the law to include protection of ideas won't stop the IHOPs of the world from borrowing slang from a teen on Vine. It will, however, be exploited thoroughly by the same labels and studios that exploited black artists in the past. It won't level the playing field. And beyond all of that, it's just a stupid thing to say.
As is some of this, when St. Felix tries to tie this all together.
In some sense, the roaring debates over white appropriation of black slang, music, and dance have worked as an avatar for circumstance of the independent black creator in the digital age. But the analog is insufficient. Intellectual property and viral content should be interrogated from a legal standpoint[...]. The copyright statute under which Meechie’s YouTube account got flagged and then taken down should be re-examined, as should the legal gray areas that leave individual creators like Newman in the cold.We can agree that the killing of Meechie's original YouTube account should be examined more closely, but the fault lies with labels that have opted for efficiency over accuracy -- the deployment of bots that only recognize certain arrangements of ones and zeroes, eliminating any of the nuance or context that make fair use a viable defense.
As for Newman, it's entirely unclear how much income St. Felix -- or even Newman herself -- expects a viral video loop that birthed a slang term to generate. Users can't monetize Vine loops, at least not directly. Pursuing someone for copyright infringement (if they used the Vine loop in a YouTube compilation video, for example) would be of limited usefulness.
If the concern is limited to the worldwide "unauthorized" use of "on fleek," the route for monetization runs through the trademark office. Unlike copyright, trademark doesn't apply automatically. It must be applied for, accepted and -- most importantly -- put to use. These steps aren't cheap.
But why should anyone expect this contribution to the English language to generate income? It's two words from a seven-second video, and the only way it would conceivably be protected would be as a trademarked phrase, which would only prevent others from using it under specific circumstances for specific goods/services. It will not return "ownership" to Newman. Nor will it rebalance the IP playing field. There's arguably nothing protectable here, no matter how Newman, St. Felix or essayist K.J. Greene feel about it.
Yes, corporations are opportunists who will often use current slang to coat their advertising with "How do you do, fellow kids?" vibes. But they're not co-opting cultures. They're just acting the way we expect corporations to act: make various stabs at youthful relevance with (usually) awful results. St. Felix's article does a great job tracing the origin of the phrase, but never comes close to making a point about cultural appropriation or tying this supposed act to corporate profits.
The point that does come through is that something is wrong with IP laws, but the fixes suggested here would only make things worse. And even embracing the ridiculous concept of extending IP protections to unformed ideas still wouldn't turn two words into money. Being outraged that corporations frequently behave in a manner that only furthers their own interests is a nonstarter. Stretching the shameless repurposing of slang by corporate Twitter accounts and the merciless actions of infringement bots to be indicative of a new era of exploitation of black artists is reading far too much into the predictable actions of both corporations and the bots that work for them.
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Filed Under: appropriation, copyright, culture, expression, idea, on fleek, ownership, property, stealing, takedowns
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No, that's what you get when people don't understand DMCA, and don't fight for their rights. If the artists are paying this guy to dance to their music, then he has all the rights he needs. Answer the takedown notice, and everything should clear up.
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I had to stop here for a laugh. Copyright is a nightmare for experts. Imagine for the average joe...
If the artists are paying this guy to dance to their music, then he has all the rights he needs.
And yet his account was taken down. And it's very far from the exception.
Answer the takedown notice, and everything should clear up.
The comedy! You are good at it! While it isn't magically cleared the receiving end can rest assured his content will be blocked from the world. Awesome! Keep up pal, I laughed hard now.
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But Average Joe thought copyright was wonderful!
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Any newcomer into the field would face the same problems, and would quickly find itself on the receiving end of a multitude of threats to implement 'copyright owner friendly policies' unless they wanted to be sued into oblivion for 'promoting and facilitating infringement', which would lead to them being no better, and possibly even worse, than YT in this regard.
Hard to create a better alternative with that hanging over the head of anyone that might try.
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You actually think the artists hold the copyright to their recordings?!? How cute!
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That he could have fought back does not make it any more acceptable that the labels of the same artists that are willing to pay him to advertise their music are claiming that the resulting videos are infringing, and forcing him into the position of having to defend his account from their claims.
If the artists are paying this guy to dance to their music, then he has all the rights he needs.
Here's the kicker: Depending on the contract between musician and label, there's very good odds that no, he doesn't. It wouldn't matter in the slightest if the musicians not only gave their permission but directly paid him to create those videos, because it's entirely possible that the musicians don't have the rights to 'their' music in the first place.
In that case he could very well have contested a strike against his account, pointed out the contract with the artist, only to find out that the artist didn't actually have the ability to grant him permission to use 'their' song, in which case the strike stands. Three of those, and his account is toast.
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Once they have signed their copyrights over to a label, they are guilty of contributory infringement by encouraging other to use works that they do not control the rights for.
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And when the corporate lawyers respond and say the takedown notice was valid despite the uploader explaining why it wasn't, YouTube will side with the corporation and the takedown and the demerit remain in place.
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and no big deal when it doesn't - as seen plenty of times.
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This is almost certainly not true. In most cases, you'd actually need at least 3 separate licenses, which most likely are not controlled by the artist. You'd need to license the sound recording (probably held by the label), and then get a mechanical (probably controlled by HFA) and then also a synch license (probably from the publisher). In some rare cases an artist might control all three, but that's super rare.
But even so you're missing the point. Saying "just contest the takedown" pretends that doing so is easy and does not potentially put you at risk.
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Contesting the take downs when you feel you have the rights is a good thing to do. Remember, not every DMCA complain leads directly to a lawsuit (in fact, very, very few do). The assertion of the DMCA and the counter claim do not automatically lead to a lawsuit.
Making any legal assertion will certainly put you at risk - then again, using someone's content to make your fame on YouTube has certain risks as well. So does walking across the street. For everything we do in life, there are always risks.
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It is indeed. When there is a way to do so. And even then your content is taken down BEFORE evaluation. Which means it will be down for a while. Youtube takes the entire account down after some strikes for instance. That's a very high price to pay if you live from such channels.
Making any legal assertion will certainly put you at risk - then again, using someone's content to make your fame on YouTube has certain risks as well.
You see, the content is pretty much a noise here. The real content is his dancing. So there should be no risk at all. But alas that's the shitty copyright laws we have today.
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"This may result from the inherent imbalance in prerequisites for the original complaint and the counter-notice. To get content removed, copyright holder Bob need only claim a good-faith belief that neither he nor the law has authorized the use. Bob is not subject to penalties for perjury. In contrast, to get access to content re-enabled, Alice must claim a good faith belief under penalty of perjury that the material was mistakenly taken down. This allows for copyright holders to send out take-down notices without incurring much liability; to get the sites back up, the recipients might need to expend considerably more resources. Section 512(f) makes the sender of an invalid claim liable for the damages resulting from the content’s improper removal, including legal fees, but that remedy is not always practical."
https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act
but of course I see you continuously ignoring this imbalance and pretending it's not there and that it has no effect and that it wasn't intentionally put there because of the effect it would have. It was written by corporate entities exactly because of the intended impact it would have and that impact is to stifle competition and to harm independents that want to distribute their content on platforms and to make it more difficult for platforms to serve user generated content. If the unbalanced nature of copy protection laws aren't intended to have an effect why make the laws so unbalanced?
But keep covering your ears, closing your eyes, and singing la la la la, and ignoring how bad the laws are and how their intentionally unbalanced nature harms artists (and are intended not for the artists but for the distributors). In the meantime you will only make yourself look more and more foolish as no one would take you seriously. Your intentional ignorance of the facts only harms you.
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OR, fix the root cause of the problem, and ensure that these algorithms DON'T SEND THE NOTICES IN THE FIRST PLACE.
Funny how you want to make sure everyone gets paid for their intellectual property, yet don't give anything closely resembling a shit as to the people who are having their time wasted.
Perhaps YOUR time isn't worth anything. However, the time of the person who has to answer a bullshit notice IS.
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Says the 15th person to answer to Whatever's bullshit.
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So yeah, SO SAYS the 15th person to answer Whatever's bullshit, to the person whose time must be equally worthless, since he/she took the time to point it out.
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Second, even if the artists could and did give him the right to create these derivative works, answering the DMCA notice is not the simplest thing in the world and could increase his chance of being sued (or at least increase his perceived chance of getting sued).
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2) The takedown shouldn't have happened in the first place.
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Yeah, right. And the fact that people don't actually get punished for issuing false takedowns is no biggy at all.
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Copyright law is racist?
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If it affects everyone then by definition it is not discrimination.
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Is a rock racist?
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It is a good thing language isn't copyrighted
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I should note that there IS a public benefit from unique namespace. Primarily it is reflected in reduced indexing time, but not always.
The issue of the OP really isn't unique ownership, so much as the states slight of hand used to justify completely arbitrary decisions about it.
The confusion derives mostly from corporate personhood rather than the nature of composition. Corporations should license things, not own them. They aren't people. Never were. The dictionary act of 1871 violated the intent of the titles of nobility clause of article 1 section 9 by endowing cumulative sovereign rights to non-state agents. And while at the time, it may have been trivial, it has grown up into a mountain of bad precedent that needs to be refactored.
Note that Justice Sotomoyor bated the question of corporate personhood during the Citizens United case. The FEC side stepped instead of taking up the argument. That move made me seriously question the FEC's intent.
Overturn Citizens United. Reinstate Glass Steagall. Bust the Trusts.
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An idea does not need copyright protection because an idea exists only in your mind. As such, it cannot be copied and needs no such protection.
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until it comes to the those cases where the IP users owe something to the public, then IP law and every other law that doesn't suit goes right out the window!!
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Someone send these people their "10 Million Theoretical Dollars."
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*No way, pal!
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There are two types of people
2) Those who do not respect IP law
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Your big mistake in this article is using the term cultural appropriation as if it's a thing that exists. It does not. Culture cannot be owned, no matter how black, lesbian, single mother of 2, or helicopter-kin the claimant may be.
When you allow made up bullshit such as "cultural appropriation" into your language, you allow the idiocy that created it into your thoughts. Don't be that guy.
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https://dreadedwhitepeople.wordpress.com/2012/06/20/didgeridoos-dreaded-white-people-a n-unholy-union/
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I'm not even going to touch the comparisons to this with a 10 foot pole.
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Sweet Brown
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Fix the root cause of the problem...
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I know people who believe flour, milk and water are copyrighted and they own reciepes. That is the way the copyright media education has driven their message. There is no concept of anything outside of the closed bubble that everything is owned. It's hard to explain existance beyond that sphere exists. I feel like I'm describing the color red to a blind person.
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2 opposite ideas
1) Allow people to use songs in their videos as they wish, and
2) Lock down language so that the first to use a word makes money on it.
Either you want the freedom and cultural enrichment that comes with sane IP laws, or you want everyone to pay for everything they say, tweet, or use in a video.
St. Felix can't have it both ways.
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Dude's dancing is the intended message of the piece. Yes, doesn't work without music. Is clearly a fair use though since it is significantly transformative. (Would you watch anybody else's dancing and be as entertained, would you just listen to the music?)
You can say IP law screws all artists equally, but that's not actually true. IP law particularly screws artists who believe in playing non-zero-sum games. In other words, the music benefits the guy dancing, the guy dancing benefits the music. Nobody is harmed.
Similarly, IP law has summarily made commercial hip-hop impractical at best to pursue as a sample-based art form. (See follow-on of songwriting credit as applied to samples https://www.dukeupress.edu/creative-license .) The appropriation and exploitation of traditional song by enfranchised powers is pretty well-documented.
A lot of blues and rock is based on traditional song (non-zero-sum cultural expression) which is then co-opted by copyright by an individual or organization. Judging by the popularity of rock music and the amount it propagates zero-sum memes (such as IP law), it seems to me that commons, and in particular black culture commons have been disproportionately exploited.
You can say all lives matter, but in the current cultural climate, it is more important to say that black lives matter.
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