January 30th, 2007

Copy, Right?

The following is a note I sent to the SEM list in response to a thread that started with this seemingly simple query (if not so easily answered). I felt the need to add my two cents after reading this post. I’ve added a couple more links, including one to a pdf version of the paper I gave at SEM in Hawaii, so anyone who wants to know why I think ethnomusicologists might take some lessons from sample-based hip-hop producers, mashup makers, and mp3 bloggaz might want to check that out. As subsequent responses suggest (but not all), it may be a while before we become as bold as I think we should.

///

Victor, et al.,

These are vexing questions indeed, and even more so given that there really aren’t clear guidelines about what constitutes “fair use” — only various (and sometimes contradictory) precedents established and revised in something of a willy-nilly manner based on who gets sued, how they mount their defense, and whether they’re judged to be right.

I discussed some of the issues we face as ethnomusicologists working in the present legal climate in my paper at SEM in Hawaii. My focus there, however, was less on the letter of the law and more on the effects on our practice as scholars considering that “fair use” is a defense rather than a “right.” In particular, because our work tends to be mediated/vetted by the general counsels of universities and presses — a risk-averse bunch by definition — we’re frequently not even given the choice of exercising “fair use” in our publications. This produces what some call the “chilling effects” of current copyright law.

It seems to me that as an “independent scholar” — though correct me if I’m wrong in calling you that (and note that I use that term not in a pejorative sense) — you are actually better positioned than those of us at certain institutions to exercise “fair use,” though it does mean that you may get sued. It’s not necessarily true that the offended parties will issue you a cease and desist notice before instigating a suit, and it’s possible that they might send a c&d directly to your server/ISP asking them to take down the infringing materials (as has happened to various mp3 bloggers). Even so, I think it is important for scholars and artists to challenge the prevailing climate in our practices. Show and prove, etc.

As for the issues of “tribal”/”ethnic” rights over recordings, there is a fairly substantial literature on the subject at this point. Steve Feld’s “Sweet Lullaby” piece and Tim Taylor’s “A Riddle Wrapped Inside a Mystery,” for instance, both illustrate the complexities and potential problems around such (contested/exploited) definitions of ownership.

I’m not a lawyer and so can’t give you legal advice. But in general, I think we should be as bold about our use of audio, video, transcriptions and the like as we are vigilant about the power/privilege relationships involved in such use. I wouldn’t wish a lawsuit on anyone, but the truth is that we may need to take more risks — and make eloquent arguments — in order to push the law/discourse toward a state that better suits our practices as writers, teachers, artists, etc.

Best,
Wayne

3 Comments Add your own

  • 1. Vods.mobi » Jonatha&hellip  |  January 31st, 2007 at 11:59 pm

    […] Finally, Wayne Marshall has been thinking about the place of creativity, fair use and the crackdown on the Mix Tape: I think we should be as bold about our use of audio, video, transcriptions and the like as we are vigilant about the power/privilege relationships involved in such use. I wouldn’t wish a lawsuit on anyone, but the truth is that we may need to take more risks — and make eloquent arguments — in order to push the law/discourse toward a state that better suits our practices as writers, teachers, artists, etc. […]

  • 2. SAChoirgirl  |  February 1st, 2007 at 10:38 pm

    I absolutely agree with your stance, Wayne, but in practice, I don’t know how to get around the fact that my visa status and etc. would be at risk. In South Africa, I would be more willing to take the risk, simply because I can’t get thrown out of the country for doing that, but of course, when a white scholar like myself takes what could be construed as liberties with the intellectual property of black musicians in South Africa, people immediately think of Solomon Linda and Mbube. I hope in the long term I will have the courage to follow your advice. In the interim, though, I am watching my step

  • 3. wayneandwax  |  February 2nd, 2007 at 11:43 am

    Thanks for sharing your perspective on this, choirgirl. I understand your anxieties. The visa status issue is an interesting one. I guess I wouldn’t put it past the IP gestapo to attempt to leverage such an abuse of power, but I suspect you have little to fear on that point. The questions you raise about what might be viewed as the appropriation of black IP (though I hesitate to affirm property-think by using that term) by a white scholar are certainly ones worth keeping in mind. But it’s not as if I’m simply advocating an unreflective, unethical approach to advancing our publication practices vis-a-vis fair use. (And I wonder whether such stark lines, moreover, continue to affirm racialist dichotomies, despite that they seek to exercise vigilance around the privilege that accrues to those marked as white in a racist system.)

    We need to make sensitive decisions about what media we’re sharing and why, and I think that properly and clearly contextualizing such uses offers one key way to frame them. On the other hand, no one ever said that you couldn’t get permission from the artists in question, or that you couldn’t present the materials in ways that would seem/be very different from the sort of exploitation at the heart of the “Lion Sleeps” example. For instance, I would argue that my own “unauthorized” use of “Mbube” is clearly different in intent/effect from, say, Pete Seeger’s. It is in the realm of creative/critical uses where I think we can challenge the status quo in productive ways (and I refer to all sorts of stati quo here: w/r/t copyright, racialized power relations, etc.). I’m not sure what sort of fair uses would make sense for your work, but I hope that when you find yourself wanting to use something to help illustrate your argument, you are not too stifled by anxieties about legal or ethical implications. These are worth considering, meditating on, and coming to grips with, but there is a lot more wiggle room out there — and a lot more that can be made — than we tend to enjoy.

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Wayne&Wax

I'm a techno-musicologist, internet annotator, imagined community organizer.

I left my <3 in the digital global, but I reside in Cambridge, MA, where I'm from.

I represent like that.

wayne at wayneandwax dot com

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