Law in the Text

Curator's Note

For media studies, law is usually treated as a background factor, not as central as the details of the text, the times, or the hearts and minds of the audience. But what if textual pleasure is conditioned by things not in the text at all? What if it is linked to, say, ownership, that is, the coerced flow of resources from some to others, to the legitimized violence of the State? By placing discussions of legal issues next to film clips, an IMR theme week on policy raises intriguing questions about the role of coercive social power in the production of textual pleasure.

Consider the closing credits of It's a Wonderful Life (here, run backwards, for reasons that will soon become clear). The film, certainly popular by any definition of that term, was by most accounts burned indelibly into American popular consciousness because of a legal mistake: not particularly successful at its theatrical release in 1946, the film fell into the public domain when the studio accidently failed to renew its copyright in 1974. According to the common wisdom, television stations across the U.S. then got in the habit of running the film in heavy rotation during the Christmas season as a cheap way to fill their airwaves. So the film became part of the cultural background of a generation of Americans, many of whom still tear up at the end when war hero Harry Bailey appears, offering a toast "to my big brother George. The richest man in town!"

In the early 1990s, industry lawyers mobilized some thin legal excuses  to recommodify the film; copyright of colorization, soundtrack, and the original novel were said to be enough to assert control over the whole thing. This defining text of American sentimentality and nostalgia cannot be reduced to economic forces. Yet without these machinations of property law, American sentimentality and nostalgia might well have been defined differently. Why, apart from a mystical attachment to a transcendant subjectivity, should a materialist analysis of culture treat that fact as somehow external to the "essence" of the text? I love this movie, but why should textual form or lived experience be more important to explaining my love than the legal technicalities? 

Is there a way of reading culture that brings legal force out of the shadows? Running the clip backwards, foregrounding the normally ignored legal assertions of the closing credits in the text, is an admittedly gimmicky effort to gesture towards some as yet undefined mode of reading that refuses to separate the sinews of power from the experience of the text itself.


 This is to me one of the crucial issues of the new media age, and unfortunately all the existing copyright and intellectual property law in the US is still very much rooted in nineteenth-century notions of "fixed" works in a material form.  The Clinton-era so-called "Digital Millenium" copyright act made things much worse, as did the regrettable "Sonny Bono Copyright Extension Act."  As a result of these, the "work" as such is protected for a ridiculously long stretch of years; works which had fallen into the public domain were magically re-copyrighted, and the window for works to fall into the public domain was frozen at 1923.  Worse, common-law copyright (as would be assumed to inhere in any work unless alienated) will be extinguished in a few years.  All of this is very good for large media corporations, and very bad for authors, especially if those authors depend on "remixing" previously existing material.

Is there hope?  Yes, I think there is.  The Creative Commons is a welcome new source of standardized "copyleft" templates, which include the ability to give away (or to restrict) republication rights, commercial or noncommercial use, and even remixing rights.  They do not depend on copyright law, but on contract law, which has the advantage of being far more enforceable in the courts.  So far as I know, no work registered through their system has had a legal challenge, though, so the actual degree of protection is uncertain.

I used to spend a week on this subject in my graduate Media Studies courses -- now I spend two weeks!

And in response to your specific point: is love a form of "ownership" -- why yes, it is.  And, in the past, one could by owning a copy of a work of art express that love through a sort of surrogate possession.  Now, alas, that the "copy" is more likely embedded in some other sort of technological envelope of space, getting that same sense of "ownership" is quite often illegal!

Thanks for the fantastic post, Tom, which reads like the perfect conclusion to this week.  Your discussion of It's a Wonderful Life reminds me of the tremendous amount of programming on the History Channel about WWII, the product of free public domain footage, as another example of how intellectual property law structures not only which texts we develop sentimental bonds with, but also how our collective history is mediated, narrated, and defined.

In my law and media history course, I try to get my students to see that the line between structural and content regulations is often really blurry and that our experience and understanding of the media is inseparable juridical structures of governance.  This is easy enough to do in a history course, when you can demonstrate how laws or policies enshrined one use of technology over other competing visions.

The mode of reading you mention, though, seems to me to be something different, an invitation to foreground the law as we explore the affective pleasures we derive from texts.  Though you describe this mode as "undefined," I am wondering if you have thoughts about methods one would use in just this form of analysis?

Thanks for a great concluding post for the policy week.  We've gone from bottom-up regulation to a prime example of how policy may be employed to control media texts from the top.

Key questions persist--namely how to better encourage public debate about these issues.  But Russell's comment points toward the classroom as a vital space in which to have these very conversations.  I'm curious to know more about how media professors, in particular, incorporate discussions of policy into the classroom. 

Is two weeks enough?  Is an entire semester enough for the number of complicated issues reviewed just in this week's posts: contract law, copyright, network neutrality, citizen vs. consumer discourse, etc.

Allison asks if I have thoughts "about methods one would use in just this form of analysis?" I'm just trying to imagine a form of cultural analysis that somehow neither marginalizes the operation of power nor sees it mechanically. Think of Walter Benjamin's call for politicizing art, or maybe Mike Davis' City of Quartz (where readings of film noire are almost seamlessly integrated with a study of the economic and racial politics of LA).

Easier said than done, though. I generally try to read the law as itself cultural, as in a way affective; free speech law and property law both involve a certain amount of passion, of emotional attachment, and are best understood with that in mind. If you assume that they're driven only by some kind of technical (legal) reason, you'll never get it. But how to bring that fact back to close textual reading of films and videos, I'll confess that I can't claim to have that figured out in any systematic way.

Thanks to all for their comments.

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