Marta Iljadica, Graffiti Rules: Parallel Copyright Norms in
the Graffiti Subculture
UK law; copyright subsists in a work of graffiti, though
there are policy reasons that one might not enforce it—often these works
qualify legally as “criminal damage.” The community is not concerned about
copyright, but it is concerned with copying.
“Don’t be a toy.” It’s not
mindless vandalism; there are rules and the rules are there for a reason. Both
process/placement and final product is regulated by the community (though
people do contest the rules).
Rule #1: Write letters.
Collapse distinction between literary and artistic—they talk about “doing
words,” and the visual the word makes.
Not necessarily about meaning of words, but shape.
Rule #2: have a style, don’t bite. Put your own individuality into it. You have
to be original, but you’re all drawing roughly the same thing. There’s lots of
different ways to draw an arrow: what makes it your style/who you are? One writer spoke of aesthetic dialect: it may
all look the same generally, but people within the style look for minute
shifts/differences. It matters both
because of the idea of personality and the idea of effort: if you bite, you’re
appropriating the effort of another to get to the point where their style is
recognizable. The rules protect individuals within the culture and also keep
the community together as against other kinds of writing/painting.
Rule #3: get up/be visible. Let people see your name. Currency isn’t money but fame. Where do you put it? If the point is to get up, why don’t you see
graffiti everywhere, e.g. on cars? But
that’s rare. Personal property: houses,
churches, cars were off-limits—respect for people led to respect for these
objects, but not trains/locations of large corporations. Some writers said they wouldn’t tag a
museum. Acceptable intervention into a
space that’s increasingly commercialized as a personal expression.
Original letter style reinforces subcultural belonging;
having rules like “don’t tag a church” helps make the community cohesive. The process is regulated as well as the final
work. It’s not just style, but pleasure in putting up the work.
Q: is there any real sanction?
A: mostly social, but did have an informant report an
assault. Threat of violence in the
background, but not nearly as prevalent as one might have thought.
Q: parallels to other industries?
A: Moral rights: does suggest that, for creative process,
creators are interested in protecting personality and not economic rights. “Negative space” literature.
Q: negative gossip backed up by a threat of violence seems consistent
across different fields. (Not the female
dominated ones!) Q about emergence of
norms. The illegality means they’re not
able to take advantage of IP, but is there something more than the legal
barrier to protection to explain why they choose self-regulation?
A: not necessarily true that they wouldn’t avail themselves
of copyright protection, when works enter other spheres not their own, in which
case they very much want to be paid.
Q: is there something about this community that makes them rely
on the community and not the gov’t?
A: they’re happy for it to remain illegal.
Q: what about altering existing graffiti?
A: can be frowned on—significant sign of disrespect.
Q: is there a particular value to counter-ness of
counterculture? Wants to be outsiders to formal law?
A: yes, it’s one of the strengths. Graffiti as resistance
may be too simplistic, but there’s a component of that.
Q: demographics?
A: tried not to collect too much information, but there was
a variety. Some people did say “graffiti saved me; I grew up on an estate and
this gave my life meaning.”
Yolanda King, The Enforcement Challenges for Tattoo
Copyright
Hangover II: Tattooist
who did Mike Tyson’s facial tattoo sued Warner Bros. for reproducing the tattoo
on another actor’s face. Previous
article examined copyrightability and fixation and concluded that tattoos were
copyrightable, but noted the significant obstacles to enforcement. Now turning to those obstacles.
As between artist and customer, unlikely that WFH argument
can be made. Not employer/employee; tattoos don’t fall into the enumerated
categories in her opinion. What if the
person has a number of tattoos? Can that be a contribution to a collective
work? That is a bit of a stretch (no pun
intended).
Joint works is a more complicated prospect, given
flexible/fluid nature of tattoo creation, lots of input from customer; prior
sketches common though not present for Tyson’s tattoo. Nimmer’s test—only the result must be
copyrightable—has been rejected by courts, but King supports it. Given customer’s
input, customer should have rights and should be considered a joint author.
Focuses on display right.
If the tattoo artist is the copyright owner, what is the rule for the
mobile human medium? Proposed solution
from Roberta Kwall—a type of public display right for the customer: the artist
put the tattoo on the mobile medium and therefore loses control of subsequent
displays on that person.
Q: moral rights—VARA?
If it’s a unique drawing on a human being, then what?
A: hasn’t looked at VARA, but Kwall does.
Betsy Rosenblatt: right to bodily integrity? Does that factor in?
A: Nimmer did argue that the 13th Amendment was
implicated (declaration thrown out by judge).
Does raise Q of limits on artist’s rights. Focus would be more on 3d parties like Warner’s. Modification or removal by subject would be
outside the control rights.
Kwall: we see lots of ads for tattoo removal. It’s the ultimate site-specific art, but what
happens when the person wants to obliterate the tattoo?
A: hasn’t worked through, but doubts the artist could
control this. Might be more successful
against an attempted modification.
Q: There are a handful of movie/videogame/ad cases about
tattoos: real outliers. Has interviewed
tattoo artists, and none of them thinks that they can control an individual
client rather than a company like WB using a tattoo in an entirely different
context, or using a representation of the client in a video game. They respect
bodily autonomy. They’re getting along
just fine without the law.
A: will arise more often as tattoos become marketable. When a 3d party gets involved.
We ran out of time for my comment: From what I’ve read,
tattoo artists are perfectly willing to create tattoos copied from existing nontattoo
works, e.g., a tattoo
of the Beatles’ Abbey Road album cover, taking the position that the tattoo
form makes it original on the part of the tattoo artist. I’m curious about this because it seems to
illustrate something going on with the norms discussed by both presentations: Jennifer
Rothman criticizes best practices statements because they reflect the norms of
the user community and discount the similar interests of outsiders. It seems to
me that many of these norms investigations discover communities doing the same
thing: They get to use other people’s stuff, but other people don’t get to use
theirs. (Even saying WB was using the
tattoo in an “entirely different context” in Hangover 2 is special pleading—the use of the tattoo was a joke
about Mike Tyson; likewise saying that the videogame avatar isn’t the athlete
is to say that you’re not allowed to represent the truth about the athlete
digitally.) This is natural enough—we see
our own creative contributions more easily than others’—but should not go
uninterrogated.
Copyright Theory
Robert Heverly, Buying and Selling the Ephemeral: A Transaction
Costs Justification for
the Form of Copyright Law
Transacting in relation to copyright works is a critical
part of the copyright system. If you have a right to exclude with no right to
transact, the right is not particularly useful.
Transaction costs should be a specific part of the discussion of the
scope of copyright. Transaction costs,
classically, aren’t the costs of putting the thing together but costs of
dealing once you have the thing; but he wants to include both in his
discussion. If a work is copyrightable,
we know there is an author, but must find them.
Determining ownership where uncertain increases transaction costs;
extent of rights to be granted; terms of deal (how much money, etc.).
What can influence transaction costs in copyright markets?
Norms, markets, law, trust, experience, relationships. So what does it mean to focus on lower
transaction costs? Higher perceptions of
risk are more expensive, limiting transactions.
Coase’s starting point is clear entitlements. Uncertain rights figure into property rights:
fair use is one source; ownership of rights can often create uncertainty (WFH,
joint authorship, etc.). Affects not
just strength of right but status in negotiations.
Term extension: no discussion of transaction costs created
by term extension. But even with a new
author writing now, we can anticipate trouble finding an owner before the
copyright expires.
Compulsory licenses: Congress steps in to avoid licensing
problems. Cablevision proposed a
different method for calculating cable compulsory license; Copyright Office
rejected it, criticizing the method for being complicated and increasing
transaction costs.
Ty v. Perryman:
says that fair use economizes on transaction costs by allowing reviews without
publisher permission, which publishers want so that they don’t have to worry
about evaluating each use. Posner was
focused on giving users an “out,” but fair use in general is high on
transaction costs. (Hmm. I think that
really depends on whether you have counsel or not!)
Q: Term extension—Congress was told that clearance/orphan
works would be a problem; they just ignored that.
Q: registration?
A: can’t dump Berne, but lack of registration certainly increases
transaction costs.
Q: termination of transfer—seems to be intentional raising
of transaction costs.
A: should spend some time on that.
Q: if lack of knowledge of rightsholder is a problem, does
explicit warranty of title/indemnity work?
A: yes, he’s a big fan of getting insurance involved. That risk must still be priced, but it helps.
Zahr Said, Comparing Substantial Similarity and Likelihood
of Confusion: A Metacritical Analysis of
Copyright and Trademark
OK, timing didn’t work out here—I missed most of this. I came in when Mark McKenna was saying that
the likely confusion test is incoherent, considering factors that serve
differing ends and that therefore allow courts to pick and choose/doesn’t tell courts
which ends are most important.
A: hears that, but has been astounded by copyright cases in
which courts are conclusory about evaluating similarities/differences (without
a structure that says what the meaning of genre is, for example). TM cases can be intellectually dissatisfying,
but at least they had factors. Are there instances of conclusory
reasoning/underevidenced/underargued in TM cases where you think having more
arguments would be a good thing?
Copyright cases are completely unpredictable because of the
methodological abdication/vacillation.
(The grass is always greener! I suspect one big problem here is the Dan
Kahan motivated cognition issue: it’s not so much the principles that are
missing as disagreement on what is convincing as a factual claim.)
Brad Greenberg, Calibrating the Economic 'Engine of Free Expression'
Should focus on costs of creation, distribution, and
reproduction and less on incentives authors need as reward. Wants to create a taxonomy of works—e.g.,
remixes, which don’t need the same incentives.
Identify costs in various categories, from low to high. Implications: copyright doesn’t work best as
one size fits all.
Have to work on averages, even though some writers can write
very fast and others take 3 years and a number of drunken binges to get
something done.
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