Monday News: Art & originality, sensory marketing, narrating different perspectives, and Bambi parody
Borrowing, appropriating and stealing as old as art itself – An interesting article, written in response to the recent jury verdict against Robin Thicke and Pharrell Williams for the similarities between “Blurred Lines” and Marvin Gaye’s “Got to Give it Up.” There is a great deal of legitimate concern about the case and its implications for creative content producers who routinely riff off of previous work, intentionally or not, and Ron Charles discusses the ‘blurred lines’ between artistic inspiration and outright appropriation.
There’s no history of art without borrowing, appropriation and in some cases theft. Certainly the past century is inconceivable without found objects — a urinal signed by Duchamp, a bicycle seat and handlebars turned into an animal head by Picasso, almost everything Jeff Koons has ever done. The 20th century began with collages made with images torn from newspapers and was dominated by Pop art, which meticulously reproduced the products of advertising and commercial design. Long eons of art have been devoted to small variations on familiar and beloved formulas, so familiar we have named them: the annunciation, deposition, sacred conversation, assumption. The Romans copied the Greeks, and thank goodness they did; much of what happened in the age of Socrates, Plato and Menander is known to us only through Roman facsimiles.
But there’s also been a history of forgery, especially as art became a valuable commodity in the 19th century. Forgers have even laid claim to legitimate status for their work, and appealed to the same arguments circling in conceptual art circles for justification. If Elaine Sturtevant, who was recently the subject of a retrospective at the Museum of Modern Art, can make near perfect copies of Pop art, and call it new, why should forgery be seen as illegitimate? –Washington Post
The Science of Sensory Marketing – This article made me think about how the tactile sensations associated with paper books are often used to promote their ‘superiority.’ In its own way, this advocacy of paper — the smell of the paper, the feel of pages turning — is a form of branding and marketing, even if not overtly intended as such. Since digital books do not have that “touch” value, they have to rely on other sensory effects — covers, for example, and the feel and appearance of the reading device — to compete on this level. I wonder if the familiarity of paper’s tactile qualities and pleasures is part of what drives much of the nostalgia for paper books.
Aradhna Krishna directs the Sensory Marketing Laboratory at the University of Michigan and is considered the foremost expert in the field. She says that many companies are just starting to recognize how strongly the senses affect the deepest parts of our brains. The author of the 2013 book Customer Sense: How the 5 Senses Influence Buying Behavior, Krishna got into the field because she was fascinated by certain questions: Why does wine taste better in a wine glass than in a water glass? Why is an ad showing a piece of cake more engaging when the fork is placed to the right of the cake? Why does the smell of cinnamon make a heating pad seem to work better? Krishna realized that the senses amplify one another when they are congruent in some way. Because cinnamon suggests warmth, it can enhance a heating pad’s appeal and apparent effectiveness. Such influences are subtle—and that’s exactly why they are so powerful. Consumers don’t perceive them as marketing messages and therefore don’t react with the usual resistance to ads and other promotions. –Harvard Business Review
What Writers Can Gain From Seeing the World Through Different Eyes – I love this piece by Indian American writer Tania James and her experience writing The Tusk That Did The Damage, which required her to inhabit three different points of view, including the character of an elephant poacher. She talks about how she went about discovering these diverse voices and about some of the issues involved in writing outside one’s comfort zone and scope of experience.
Of course, it’s risky to try to sound like someone so far outside your own context. A lack of authorial confidence can come across in the writing. And then there’s the danger of introducing a clinical distance between yourself and your character. Running every observation or insight through an intellectual filter—what would a person like this one say or do?—can have a deadening effect. This impulse begins as an attempt to legitimize the characters, but ends up dumbing them down.
There’s also a temptation to over-focus on the cultural details: unfamiliar customs, exotic details, the clothes people wear. The things, in other words, that seem interesting to us as outsiders. But part of establishing point of view is knowing what to omit. (One of the hallmarks of bad historical fiction is describing everyday details with the sociologist’s eye.) We have to be willing to present the readers with vocabulary or details they aren’t prepared to understand when the characters themselves would not explain it.
This is one of many reasons I admire Junot Diaz’s fiction; he never italicizes non-English words. Italicization would make those words doubly foreign or doubly unfamiliar, when actually they’re second nature to the character. To highlight these words would be a betrayal of point of view. –The Atlantic
The Rock Makes A Kick-Ass Bambi In SNL’s Live-Action Disney Parody – Bambi: Get Bucked. The whole thing is brilliant, including the clip of Ludacris performing, “Wham Bam Bambi.” –i09 & YouTube
I’d already read some of that series on appropriation in art and thought it was a good summary, but I take issue with the conclusion on fanfic. It’s reasonably clear from the decided cases, including at least one from the Supreme Court, that fanfic is generally covered by fair use and that there is nothing illegal about publishing alternate universe fanatic with names and possibly appearance changed.
I am not aware of instances where this site — as opposed to its readers and commenters — has harassed or torn authors to shreds. If Jane’s bullied anyone, it’s been commenters here and at least one contributor who was subjected to a different standard than others. It’s engaged in tough and sometimes harsh critique, but nothing out of bounds. But the position it’s historically maintained on fanfic are as wobbly as Jane’s sense of ethics.
By the way, I’m a retired lawyer. Hence the name: lawless. Also hence my sense of outrage about Jane’s actions/inactions for which she should step down from running the site. But since that would probably mean the death of the site, I’ll still visit (though not as often), but will do my clicking elsewhere when it comes to buying.
@lawless: I’d already read some of that series on appropriation in art and thought it was a good summary, but I take issue with the conclusion on fanfic. It’s reasonably clear from the decided cases, including at least one from the Supreme Court, that fanfic is generally covered by fair use and that there is nothing illegal about publishing alternate universe fanatic with names and possibly appearance changed.
While a lot of people use Campbell to support the legality of fan fiction in general, even Rebecca Tushnet, who is a fan fiction author herself, in addition to being one of the most prominent legal scholars on fan fiction, acknowledges that fan fiction occupies one of the grayest areas of IP law: http://io9.com/5933976/are-fan-fiction-and-fan-art-legal. In part, of course, because fair use is always a case-specific analysis, which makes it basically impossible to give all fan fiction writers the security of a legal safe harbor. Then there is the consideration of country of origin, since the US does not acknowledge the creator’s “moral rights,” as does the UK, although some US-based authors will invoke moral rights in erroneously claiming the illegality of all fan fiction (e.g. Diana Gabaldon: http://www.teleread.com/copy-right/novelist-diana-gabaldon-causes-fanfic-furor/).
This commentary from the University of San Francisco Law School Internet and Intellectual Property Justice Clinic blog also highlights the importance of how the original work’s creator views fan fiction (http://lawblog.usfca.edu/internetjustice/2013/fan-fiction-and-copyright-law/):
While many authors and television show writers such as J.K. Rowling and Joss Whedon have supported fan fiction, in that they have even hosted contests for fan fiction, these same writers have also later brought copyright lawsuits against writers of fan fiction. Returning to the Harry Potter, J.K. Rowling initially was supportive of fan fiction writers, in particular, the Starkid Productions’ A Very Potter Musical franchise. However, Rowling was also surprised by the amount of sexually explicit fan fiction written about her characters. She took action against specific writers of “smut” while remaining silent against other derivative works such as James Potter, a series concentrating on the future generations of the Potter universe. An author has a right to protect her work but what does it mean when an author chooses to prosecute a particular type of writing while allowing and encouraging others? Unfortunately for writers of fan fiction, it is unclear and the power remains with the author of the originating work.
It is clear though that the law surrounding fan fiction is highly dependent on the copyright owner actually enforcing their rights and prosecuting offenders of their copyright. In cases such as J.K. Rowling in which she is choosing particular pieces of work to prosecute while letting other works that violate her copyright be published, the law clearly sides with her.
@Robin/Janet – I’m familiar with Rebecca Tushnet from her work with OTW, of which I am a member. I also follow her Twitter account and have read some of her excellent law review articles. It’s true that it’s a case by case analysis and that there are no cases specifically regarding fanfic, but that doesn’t mean conclusions can’t be drawn based on the statute and case law.
The Acuff case established the principle of transformativeness; The Wind Done Gone case at the very least establishes that critique, as well as parody, is fair use. Lack of commercial purpose/non-competing use may well protect fanfic not written for profit generally; a well-established AU may make enough changes to qualify as transformative. This site’s position, as I understood it, however, has not been that it’s a gray area, but that it’s copyright infringement, world without end, amen. That, to me, is patently wrong. And I would give litigation establishing non,-commercial fanfic as fair use a much better chance of success than, say, Ellora’s Cave’s litigation against DA.
I wasn’t aware Rowling sued people over fanfic. She sued over a guide to the series that infringed on her ability to write such a guide. I do know she voiced disapproval of smut involving underage characters. Warner Brothers, which owns the movie rights, issued takedown notices; some of those may have been directed at fanfic. But Warner Brothers =/= Rowling.
Because art appropriation cases depend on what the judge sees in the artwork, they seem less predictable to me than the putative fanfic case.
@lawless: This site’s position, as I understood it, however, has not been that it’s a gray area, but that it’s copyright infringement, world without end, amen.
I’ve pulled up the fan fiction tag to see if I can understand where you’ve gotten that perception from, but I can’t find anything at DA reflecting the position you attribute to the blog or ANY of the bloggers here (there’s no “site” opinion, since we’re all individuals with different views). The tag is here: https://dearauthor.com/tag/fan-fiction/.
Not only have we had Rebecca Tushnet do a reader Q&A here (https://dearauthor.com/features/essays/qa-with-professor-rebecca-tushnet/), but some of our contributors over the years have been/are active in fan fiction communities (https://dearauthor.com/features/essays/fan-fiction-a-personal-perspective/). The DA blogger who I would say had the least interest in fan fiction has since left for publishing (Sarah Frantz Lyons) and I don’t know what her current position on the subject is. DA has also hosted fan fiction readers who expressed ethical concerns about the P2P phenomenon, in part to protect the non-commercial element of the fair use defense for such works and the anonymity and independence of fan communities (https://dearauthor.com/features/essays/fanfiction-a-tale-of-fandom-and-morality/). I’ve actively advocated for the narrowest possible application of copyright law to works like fan fiction, and both Jane and I have forcefully argued against the “stealing” analogy often used to characterize alleged infringement.
In regard to generalities, I would think that the classic legal position of “it depends” Tushnet employs in her Q&A (and elsewhere) best serves fan fiction writers, because even copyright holders who *clearly* do not have the right to demand permission or a licensing fee sue (the now-infamous Conan Doyle estate being a recent and prime example). IMO fan fiction writers are most empowered by understanding as many of the legal uncertainties as possible, because patently assuming you have a fair use defense can be cold comfort in the face of a publisher’s C&D letter or an author’s infringement suit, even if they’re completely bogus.
Re. Rowling, the C&D/DMCA takedown notice issued in regard to the sexually explicit HP fan fiction bears both her name and WB: https://www.chillingeffects.org/notices/1182#.