Rebecca Tushnet

Laura J. Murray, S. Tina Piper, & Kirsty Robertson, Putting Intellectual Property in Its Place: Rights Discourses, Creative Labor, and the Everyday: Coming at roughly the same time as Jessica Silbey’s The Eureka Myth, this book, like Silbey’s, challenges IP lawyers’ reflexive assumption that intellectual property is central to the production of creative works, even for-profit creative works. They’re both important and intriguing works. Here, the basic argument is that IP laws have limited and attenuated effects in many different creative fields. Though rights talk and economics do matter, they’re at best loosely linked to formal law, which is “invoked or imagined occasionally, opportunistically, or instrumentally,” often to achieve objectives other than incentivizing creativity. IP is more rhetoric than rule; it can appear as fantasy (potential riches), rumor (fear of being sued), threat, whipping boy fueling resistance—“as a symbol of corporate power rather than as a specific set of rules,” and so on.

Much like Silbey, the authors conclude that IP appears as a strategy “adopted to cross or police boundaries long after a work has been created or an innovation has taken place.” Even when statutory and case law is readily available, “people actually choose to understand the law through information and opinion gathered from friends, strangers, coworkers, and the media.” They regularly choose their own grounds for negotiation and dispute, ignoring legal mechanisms. So, law on the books is far less important than how law is mis/understood on the ground.

The authors position themselves partly against studies of IP’s “negative space,” contending that such framing positions IP as primary and low-IP spaces as the ones in need of explanation, whereas creative practices generally are in fact low-IP. All groups have rules about attribution, ownership/custodianship, and fairness; sometimes those are formalized, but more often they are “indigenous”—“foundational and persistent, not ancestral or supplemental.”

Chapters examine specific communities of practice. One chapter (attributed to all authors) analyzes free culture rhetoric in Canada, which they argue has been raced, gendered, and US-oriented, with a presumed-male subject as the unexamined universal. Individualism is a politically limiting feature of this vision of “free culture,” they argue. (I’ve long thought that “free as in free speech, not free as in free beer” has a very interesting gender resonance on both sides—not only does some speech trade off with and suppress other speech in a way unrecognized by the first part of the slogan, but I always saw “free beer” as very far from free.) Creative Commons, then, tries to be liberatory, but accepts a US model that might not apply elsewhere, trying to fight supposedly restrictive norms that might not have been shared. Programs may be “ported,” but cultures are far trickier, and in choosing the language of “porting” CC licenses from the US to other countries, CC is making a significant move in presuming mechanical commonality between countries, legal systems, and creative cultures. Ultimately, what CC licenses legally would do in court isn’t as important as the symbolic relations they indicate. And the authors suggest that licenses aren’t appropriate to structure certain relations.

One example of different cultural meanings they explore is “appropriation.” In US legal discourse, “appropriation art” is edgy, challenging, and increasingly legally accepted as fair use, which most people treat as an advance compared to earlier infringement findings. But “appropriation” has a very different meaning when it comes to dominant groups exploiting artistic traditions and practices of oppressed groups.

Another chapter (Robertson) studies various crafters, using works like quilt patterns. Crafters use the rhetoric of IP if not the real law; their rules may even be more stringent than law when it comes to the acceptability of making money from an object created using a pattern. And, like many others, they often conflate copyright, trademark, and patent into a kind of agglomeration of “rights.” It’s easier to manage boundary issues when the rightsholders come from outside: while disputes persist about some norms within the community, other practices coalesce into best practices over time, particularly with respect to first sale/the acceptability of making things from purchased fabric featuring licensed characters. The discussion of knitters leads into a comparison with Canadian scientists, “who like the online knitters work and compromise with, cajole and bully their peers into common (and sometimes community-created) norms” as a way of managing community in new situations or spaces.

The scientists chapter (Piper) then examines a historical example of the use of patents relating to plant hormones as moves in a larger conversation with multiple goals: credit, sometimes commercialization, furthering the public interest. Uncertainty about the law allowed ideas about IP, rather than formal law, to shape behavior. In addition, the chapter emphasizes the importance of the material world: objects were often more important than abstract rights, as scientists shared their products with those they trusted.

Another historical chapter (Murray) looks at exchanges among 19th-century newspaper editors, who didn’t get copyright protection for their works but instead used cheap postage to get stories and to share stories in return so that everyone could fill their local papers with interesting coverage. To the publishers, this wasn’t permissionless copying—it was “the essence of an editor’s job” to select and collate the best. As one newspaper said, after condeming plagiarism, “This doctrine of never borrowing, of saying nothing but what you yourself originated, is cruel in the extreme. It would condemn most men to perpetual silence. In the halls of legislation, in the courts of law, in drawing rooms, and at dinner parties, what a long, sad, solemn stillness there would be!” Credit and reciprocity were important, but not law. “IP law can be a strategic crisis-management and boundary-policing tool without driving everyday knowledge management practices.” Borrowing was the beginning of the process, generating responses; newspapers developed brands based on the sources from which they copied and the editorial stance they took towards other sources.

The entry of new competitors and outsiders, however, drove a resort to law. In a familiar pattern, new entrants disrupted existing behaviors, and producers responded with any tools they could find—just as they did more recently with search engines. When producers began to use “hot news” misappropriation claims, however, they faced continuing challenges from non-IP methods of organization. The authors suggest that a high level of rights enforcement may indicate a sector’s sickness, not its health.

Another chapter (Piper) considers copying in the Canadian legal profession. Copying is a core feature of legal thought—making up new expression would often risk distortion of the meaning of a law or a legal test, so we often value fidelity. Lawyers, like other professionals, police the boundaries of their field; this self-regulation clashed with attempts by legal publishers to control copying legal materials from law libraries. And in Canada, the legal profession won: the Canadian Supreme Court ruled that such copying was fair dealing. Here, the authors argue, unlike knitters, “lawyers do not appeal to law to bolster their credibility or ability to make an income in their profession; such an appeal may even undermine their reputations.” But like knitters and scientists, they do appeal to IP law “when dealing with strangers or for market-based transactions.”

A chapter on cultural labor and institutions in a small Canadian city (Murray) looks at the art world outside prestige art and also outside “traditional knowledge,” the two more usual objects of study. IP is only a small part of the messy, in-between ways in which artists in this community make art and make a living.

A final chapter on production of paintings in Dafen, China (Robertson), looks at the ways in which the labor of individual copiers, who hand-paint the copies of classic and sometimes modern art, is understood or ignored. Copying “functions in many ways in the art world, most of them totally separate from both appropriation and also IP protection.” As in the other chapters, IP is invoked “where perceptions of how the art market should function collide with long-held, but often unmarked, norms among artists (for example in terms of what constitutes originality).” Thus, Robertson focuses on Western perceptions of Dafen, which tend to valorize Western art and denigrate Chinese artists. Westerners, she suggests, tend to position authenticity in the content, while Chinese commentators find authenticity in the act of painting.

When Western coverage didn’t find sufficiently sweatshop-like conditions of production, it shifted to Dafen’s challenge to the idea of “art” through its mass production techniques, though as the chapter points out, “arguably the presence of the hand in the Dafen paintings is precisely the opposite of industrialization.” The painters themselves say they’d run out of ideas if they had to paint their own works, and defend the idea of giving access to art to people who otherwise couldn’t afford it. They see their works as original because they aren’t mass replicated. And, the chapter notes, given that most art is accessed through copies—online, in books, etc.—these works may not be exceptional. Price depends on the quality of the copy, and customers can also request changes so that people in paintings look more like loved ones.

In another manifestation of the interaction between material objects and immaterial rights (or lack thereof), source images (including digital files or existing paintings) are important assets, returned to a boss after a commission is complete, and protected through agreements more like trade secrets or contracts than IP rights, since knowing what’s popular is key to profiting. Even copies of in-copyright works aren’t “fakes,” she argues, any more than the appropriated artworks of Sherrie Levine or Richard Prince are fakes—they’re copies, and they serve different functions. But the Western perception that Levine and Prince deliberately challenge concepts of originality and expression insulates them from the charge of fakery, as Dafen is not. Originality and authenticity may even give us alternatives to talking about the more politically challenging and controversial subject of labor; and at the same time, whether paradoxically or naturally, our discourse tends to focus on business rather than art. It’s a fascinating set of complications.

Overall, highly recommended.