Copyright and the "male gaze": a feminist critique of copyright law


#1

Originally published at: https://boingboing.net/2018/11/20/power-imbalance-everywhere.html


#2

Tehranian points to revenge-porn victims who discovered that the compromising hidden camera footage their tormentors had recorded was copyrighted by the peeping tom (who “fixed” the video in tangible form), leaving them with no claim to the work.

Isn’t this a good thing? The work in question is a crime, so we don’t want to burden the victim with possession of the criminal work. Presumably the best course would be for the government to take possession of the work and destroy it like they do for other criminal works like homemade bombs.

Assigning copyright to the victim is a big can of worms, especially if there are multiple victims in the work and one of them wants to sell it for a profit.


#3

The backstories to the Charging Bull and the Fearless Girl show how complicated this can get.

Per Wikipedia, The Bull was created by sculptor Di Modica and self-funded, as a piece of guerrilla art. The Girl was was commissioned by State Street Global Advisors as part of their push for more women on corporate boards.

Tehranian seems to hold that declaring something “derivative” is a bad thing, but, in a more just copyright regime, wouldn’t we want some Beatles songs to be considered “derivative” of R&B?


#4

But they don’t own it. That’s not what copyright is. It’s the right to determine if and when copies are made, performed, etc. Which would create the interesting situation of a peeping tom could possess the only copy, but was restricted in what they could do with it without victim permission. Not a perfect solution, but would put legal bounds on the problem and create additional remedies if it was uploaded.

And the more restricted the work would be.


#5

Wasn’t there some bonkers thing about people not being allowed to take photographs of sculptures?


#6

The Black musicians who created delta blues didn’t write the music down, so they can’t be authors – but the white entertainment industry figures who recorded their music do get to be authors

Umm, an unrecorded performance with no written music doesn’t leave anything to copyright, surely. The event came and went, no record of it was left, therefore there’s nothing created that can be copied. Meanwhile, recording a performance without permission is a breach of copyright, so the artists don’t have zero control, and they are treated like authors/creators. The fact that the entertainment industry dis-proportionally benefits from artists’ labours isn’t a copyright issue, it’s a monopoly issue.


#7

I still don’t see what the advantage of assigning copyright to the victim is in this case instead of assigning it to the government with a default policy of “no copies”. I don’t want the victim to be the party bringing the lawsuits over illegal copies of the work, that’s the government’s job. This is a criminal matter, not a civil matter.

If the victim wants redress for the crimes that can be assigned by the court of law, not by reselling the rights to a criminal work.

And for practical purposes, the owner of the copyright is the owner of the work in the modern world, especially with digital works.


#8

I’m a little confused about this point in the writeup. They make a big deal about the person who applied the work to some medium owning the copyright, but that can’t strictly be true or sound techs would own all of of the music copyrights.

I’m guessing that in practice the big corporation got the copyright because they can afford the lawyers to argue their case in court and in congress. The whole “entity who applied it to a medium” thing is some legal hand trick to hide the fact that they were just assigning the rights to the big corporation.


#9

On the other hand, though, one might say that the unrecorded performance leaves a memory in the listener’s mind, and the listener can then copy it by performing the work from memory.

At one time, oral tradition was the way that things were “recorded”. (Another example that comes to mind at the moment is the teachings of the Buddha—as I understand it, they were committed to memory and passed along orally, and not written down by anyone until many years after the Buddha’s death.)


#10

So what is the purpose of a “model release,” then?


#11

For precedents, I’d look at how the EU handles copyright of collected personal data/metadata. It’s “collected” and “committed to a tangible medium” and “masterminded” by the service in question, but unquestionably “owned”(aka copyright) by the subject. What if “peeping tom” videos were to fall under “unauthorized data collection”, and thus end up owned/copyright by the subject?


#12

My father was a freelance photographer in the 50s and 60s. He carried around a pad of release forms. He would take pictures of someone, perhaps a hired model, perhaps an actor on a set, and he would have them sign releases. He never assumed he could do whatever he wanted with the pictures if he didn’t have a model release.
As my sister and I have disposed of the estate, we had all the release forms. I don’t understand how it works if you take secret videos of someone, and don’t have them sign a release.


#13

Did she coin a term for the “feminine, homosexual perspective that presents and represents women as sexual objects for the pleasure of the female viewer”?


#14

The fundamental concept of selling information simply doesn’t make sense. It is counter to the nature of physical reality. Even when information was sold on paper and vinyl, there was never really a coherent or fair scheme to decide who got what; it’s always just been a rolling, undecidable argument between the people who are indispensible to the enterprise and the rentiers who have unlimited power to take what they want. And it’s exponentially more complicated where there’s more than one party in each of those groups.

The only system we’ve ever really had is: you make something, and then you hope people will give you more money than other people take from you. IMO, right now, if you set your sights low then you can do OK from the former without attracting too much of the latter. But if you are determined to make millions from your album or movie, you’re going to have to make exploitative deals, and you’re going to get sued and takedowned by people who have spent decades honing their grift. I don’t think Hollywood movies and triple-A games can exist without eye-watering levels of exploitation.

It’s the same with privacy. Featuring unwitting subjects in your work is something you get away with– you can’t really justify not having their permission – and the more money and exposure it earns you, the less you can and should get away with it.


#15

That’s either a really weird idea or a weird phrasing for a different idea. That effectively gives everyone cart-blanche to copy and distribute them, as opposed to automatically passing the copyright to the victim to do with as they please. (Though such a measure would require a due process mechanism.) If anything the copyright on such things might actually need strengthening, since we’re effectively talking about the right of the victim to very strictly limit the dissemenation of copies–literally the right to copy. Here’s a question: Should the victims of such a crime and their families retain copyright in perpetuity, as opposed to being restricted by the current time limits on copyright? There are very good reasons to call for this, but there is also reasoning that maybe after 150 years, whoever the copyright passed onto doesn’t have the best interests of the original victim at heart.

I think this falls squarely within what the bounds of copyright as a broad legal concept, even if not copyright as current law, and the solution is not to “remove it from copyright” as Cory claims.


#16

You are probably breaking the law when you film your child performing

So you can’t film copyright music because it’s owned by a company but you can film or photograph people and then the camera person owns the copyright.


#17

_we decided that the complex polyrhythms of African and Afro-Caribbean music didn’t rise to the level of copyrightability, while the melodic elements that European composers concerned themselves with did – which meant The Beatles could appropriate R&B, but that Black hip-hop artists couldn’t sample The Beatles).

This is not a parallel argument. The Beatles also could not sample R&B recordings, because they didn’t own the recordings. It has nothing to do with which written parts of a song are copyrightable – ALL parts of a sound recording are under copyright.

The point is valid in that arrangements, rhythms, etc, are not part of a song’s copyright for a songwriter, though the case of the Gaye estate vs. Pharell and Robin Thicke departed from that and is now a citable precedent.


#18

End copyright.


#19

Too extreme and largely unworkable. What is needed is a much loosened control provided by copyright, a complete rework of large portions of it (such as how derivative works are treated), and a MUCH more limited time they’re granted for.


#20

This reminds me of the snarky response of some atheists to monotheists a la “You know how you don’t believe in Marduk, Zeus, etc.? Well I just believe in one less god than you do.”

You know how you want to eliminate the first nine decades (or whatever) of copyright? Well I just want to eliminate one more than you do. :slight_smile: