LawCulture

Everything Bad is Good For You

Last week Steven Johnson spoke at my university and it got me to wondering what people on this list might think of his book, Everything Bad Is Good For You:  How Today's Popular Culture is Actually Making Us Smarter.  Apart from having a great title, Johnson has an interesting thesis.  Contrary to the likes of George Will who argues that we are becoming an "increasingly infantilized society," Johnson argues that the growing sophistication of contemporary popular culture (in the form of games, television, film, and the internet) actually serves to sharpen our cognitive processes.  What do LawCulturers make of this thesis?  What import might it have for the study of law and culture?  For understanding the relationship between law, culture, and democratic authority?

LawFashion

I will be traveling to Baltimore for the Annual Law and Society conference in a couple of hours. Tomorrow, I'll be participating in an Author-Meets-Reader panel to discuss Susan Scafidi's book Who Own's Culture. It's an insightful and fun book to read about the underprotection of certain forms of cultural products (fashion) and the overprotection of others (chemical compounds).

There is so much to admire about Susan Scafidi, especially from where I sit: which is as a newish female legal academic from an interdisciplinary background, who writes about “low brow” things – I write about film, she writes about fashion.  Successfully deconstructing the nomenclature of “low brow” and “high brow” is part of Susan’s successful project.  She points to why cultural products, like fashion, cuisine, quilting are typically not protected in traditional intellectual property regimes, and how – no surprise here for the feminists in the room – these are also typically female-oriented endeavors.  The implication here is that there is a real, material connection between what U.S. law protects and the ideology of gender.

Another thing I like about Scafidi’s book (and Scafidi’s blog, and her scholarship generally) is how unapologetic she is when it comes to discussing things like fashion and food in the context of law and society. Not that I think one should be apologetic – especially in a forum like the Law and Society association. But don’t be fooled – there are plenty of law faculties around the country that would and do turn up their noses at articles written about Louis Vuitton luggage or Lily Pulitzer clothing even if the subject is intellectual property law.  Scafidi has – ironically enough – taken “low brow” issues in a legal academic setting and legitimated them with her fine scholarship and depth of knowledge about intellectual property regimes – much as she says the legal system should do with certain cultural products presently undervalued or unprotected by intellectual property law.

In these ways, Susan Scafidi is admirably bold.  She is also bold in that she is advocating more IP protection in a legal academic world populated by (or at least where some of the loudest talkers are) those who think there is too much IP protection – that the trend in legislative initiatives over the past 25 years to extend and enlarge certain IP protection is deeply troubling from the point of view of protecting the commons. Some will criticize Scafidi for her association of value and legal right: she suggests that if we value certain cultural products, we should protect them through the law. Her critics will say “don’t create more IP rights but decrease the rights available to others.” This avenue, they think, will free up more creative expression, encourage more inventions for everyone’s benefit. They’ll point out that people don’t necessarily need the incentive of IP protection to create, invent or market goods. Society benefits all the time from unprotected acts of creativity and genius.

There are lots of good arguments against this predominantly economic model of intellectual property (some of which Scafidi mentions, some of which she doesn’t). One of which is that whether or not a source community stops engaging in its valuable creative activity in the absence of the extension of intellectual property rights, whether the law grants it legal protection says something about our culture’s valuation of and respect for that creative activity and that source community.  This is an argument about the symbolic function of law, one which Scafidi makes, especially in her concluding pages, but which I think could be made stronger. Insofar as the law serves a modeling function (it being constitutive of social norms as well as reflective of them), protecting the cultural products of source communities can help foster tolerance for and disseminate honest information about those communities and their contributions to society.        

Judging Performance

A new book has just come out from Princeton Press entitled Judges and Their Audiences: A Perspective on Judicial Behavior. Written by Lawrence Baum, it claims to show how decision making by judges is motivated in large part by how judges imagine their audience will regard their judicial decisions. Based in social psychology as well as empirical evidence, Baum shows how the potential or actual response by a variety of audiences (public, bar, court colleagues) influences a judge’s decision. This seems to be yet another example of legal literature that takes as its premise the situational performance that is the stuff of law.  See Law as Performance by Jack Balkin and Sandy Levinson; De-scribing Law: Performance in the Constitution of Legality by Bernard Hibbitts; Your Second Life? Good Will and the Performativity of Intellectual Property in On-Line Digital Gaming by Andrew Herman, Rosemary Coombe and Lewis Kaye. Struggling with this concept myself these days, I wonder what exactly the term “performativity” adds to the discussion about law as an enacted practice, as a discourse of gestures, language, choreographed position and power. But perhaps that is enough.

"Chick Lit" and Originality

The scandal about Harvard co-ed Kaavya Viswanathan may have blown over, but I am still thinking about it.  What does it mean for copyright protection specifically and cultural production generally when it is illegal to “internalize” one’s favorite books and (giving Viswanathan the benefit of the doubt) in good faith write one’s own book with some clear similarities?  Those who think that the six-or-so passages in the book “How Opal Mehta Got Kissed, Got Wild, and Got a Life” are just too similar not to be intentionally copied from Megan McCafferty’s book “Sloppy Firsts” will argue that Viswanathan does not deserve copyright protection, as the expression is not original to her.  But I do wonder about what this originality requirement means in a day when we understand our knowledge (and our creative sources) to be generated in substantial part from the world around us. Isn’t most creative expression by some large measure a rehashed version of some “internalized” expression of another? Is the difference that what was “internalized” here was someone else’s copyrighted material?

Some parts of copyright law (albeit for different reasons) actually recognize the unprotectability of those mother narratives that we’ve all internalized, consider the scenes-a-faire doctrine and the restriction on copyrighting folk lore.  When I compare the paragraphs in the two books side-by-side, I admit, I am a bit dubious as to the plausibility that Viswanathan was an innocent infringer.  But it is certainly possible that an avid reader of “chick lit” – and Viswanathan said she was more than avid, but devoted, even obsessed – would memorize passages, recite them aloud, much like teenagers do with music lyrics.  Years later, when she is honing her own writerly skills, it is possible – isn’t it? – that those beloved phrases are somewhere deep in her unconscious, that they are part of her in some real way?  Who is to say, at that point, that the expression doesn’t originate with her?  In other words, at what point do the narratives we live (for Viswanathan, the “chick lit” of her youth) become part of our identity such that we are entitled to express it, even publish it?

Mommy wars -- a false battle

Los Angeles Times
Rosa Brooks
March 31, 2006

Mommy wars -- a false battle

IN HER MUCH-DISCUSSED new book, "Mommy Wars," Leslie Morgan Steiner likens the tensions between working mothers and stay-at-home mothers to "a catfight." Personally, I think it's more like dueling roosters: a cockfight.
more here.

"Based on a True Story"

For this post, I owe thanks to my friend Bill McGeveran (soon-to-be-lawprawf). He sent me the following link to a Slate article about the film "Truman Capote." In the article, Philip Seymour Hoffman opines on the difference (or lack thereof) between playing a "real" person and a fictional character in film.

Specifically, Hoffman is asked by Slate:

Slate:  You've now played both Lester Bangs and Truman Capote—two larger-than-life cultural figures. Is there a difference between impersonating a real-life person and creating a character?

Hoffman replies:  There is at first. One difference is that you have all these materials at your disposal. There's information right there that can help you—books, tapes, photographs—which you don't have when you're creating a fictional character. But once you get that information, you have to start looking at the character as a fiction. When you're playing someone who really lived, you carry a burden, a burden to be accurate. But it's one that you have to let go of ultimately. Films are always a fiction, not documentary. Even a documentary is a kind of fiction. So, ultimately you have to think about the story you're telling. You want somehow to be able to create the character in such a way that people actually stop thinking about the fact that they're watching a real person—that they're watching "Truman Capote." If you can get them to be more invested in the story they're watching than in the character, then you've succeeded.

I am intrigued by these statements, not only for the wrinkle they add to the Frey affair, discussed at length on this blog and elsewhere, but also for what they say about the possible difference between books and film as regards audience expectations for truth.

Are viewers of the film "Truman Capote" upset or angered by the fact that Philip Seymour Hoffman, in interpreting the person of Truman Capote for film, intended (and by most accounts succeeded) to transform the historical figure into a film character for the purpose of telling a story that moves the audience?  Does the implicit (or often explicit) subtitle of a film "Based on a True Story" function in the same way as the book genre of "nonfiction" such that film directors and movie producers should be worried about claims of fraud and misrepresentation by disappointed audiences? Or, is there something about film -- the way its made, its history as a cultural form, how it is received -- that distinguishes it from books in how we expect film to "tell us the truth" about some lived experience?

Looking for a Leader of the Democratic Party?

For engaging reading, see Garry Wills' review of former President Jimmy Carter's book "Our Endangered Values: America's Moral Crisis" -- not only for its teachable content (it provides a host of accessible statistics and anecdotes that touch on issues addressed in most first year law school curricula) but also for its implicit claim that Carter is a model of a leader for today's democratic party.  (Perhaps the claim is not so implicit.  The article ends with the following:  "Carter is a patriot. ... He defends the separation of church and state because he sees with nuanced precision the interactions of faith, morality, politics, and pragmatism.  That is a combination that once was not rare, but is becoming more so.  We need a voice from the not-so-distant past, and this quiet voice strikes just the right notes.")

At 82 years of age, Jimmy Carter is too old (and likely too wise) to attempt a second term as president.  But, to pick up on an earlier post by Rosa Brooks questioning the assumed incompatibility of fervent religious faith with "the American tradition ... [of] skepticism [and] rebellion," Carter may be the rare model of a personality who inhabits both perspectives and who is well-regarded as a moral and political leader.  Or, am I short-sighted?  Are there those from a younger generation who might fit (or improve upon) Carter's current example?  Or, perhaps the glorification of Jimmy Carter is an inevitable consequence of a regretful populace (worse yet, a populace that doesn't  learn from its past)?  Maybe the likes of Jimmy Carter are rare because the seeming incompability of religious faith and skepticism is too complex an alchemy for the electable American political leader but is otherwise acceptable in a philospher-guide whose authority springs from his peripheral posture?

Contesting Genre a Lawyer's Domain

In case anyone thought the James Frey imbroglio was short-lived (anyone?), the lawsuits have started. Class action suits for "lost time," fraud, misrepresentation and breach of implied contract abound.  See the link at Marty Schwimmer's trademark blog "Dear Readers: Please Don't Get Any Ideas" (eh hem) which brings you to overlawyered.com describing the various lawsuits under the heading "A Million Little Plaintiffs III." (Earlier posts on that blog, predicting the lawsuits here.)

Who said contesting genre (literary or otherwise) isn't a lawyer's (or legal scholar's) domain?

More on L'affaire Frey

Earlier today here on LawCulture, Jessica Silbey mused about James Frey and the blurry borderlands of fact and fiction.  There’s been a lot of buzz about this recently, including  a thoughtful piece by media journalist and ex-heroin addict (and, as it happens, my wonderful first cousin) Seth Mnookin. Interestingly, Seth suggests that the tendency to exaggerate one’s own criminal exploits is classic addict behavior – and that part of  recovery requires making peace with the more honest but less swashbuckling story of your own past. On this analysis, Frey just might not yet be over his addiction.

Jessica suggests that one reaction to the outcry may be for publishers to create blended genres – autiobiographical fiction, or maybe memoirs with disclaimers, language to alert readers that what they're about to take in is kinda sorta true, but not actually true. And why not? Wouldn’t this be an improvement?  It’s the difference between documentary film and those Hollywood products that tell us that they are “based on a true story.”  Both genres get part of their punch from their connection to the ‘real,’ but we nonetheless have different expectations for the two categories.  It’s not that the first is ‘authentic’ and the second is ‘fake.’ No doubt documentary films are inevitably constructed, partial, and to some extent fictional.  And surely docudramas can have emotional resonance and the ring of truth that can linger with us long after the screen goes black.  But that doesn’t mean there’s not a difference.

Similarly,  it’s not that the memoir qua memoir is literally true – remembering is inevitably an act of invention.  But we nonetheless have different expectations about the extent to which the literary creator is permitted to rework history, to change the story on purpose in significant, meaning-making ways, depending on how they frame their book, whether they sell it to us as fiction or memoir. Even in memoir, we may forgive and even expect a certain degree of creative license, but we equally expect it to be tempered by the unspoken – and inevitably contestable –  line between narrative embellishment and fiction.

In Sunday's New York Times, Mary Karr, herself the author of the wonderful and wrenching memoir, The Liar’s Club, explained why she found "JT Leroy a fine little prankster and Mr. Frey a skunk."    She too cared about labels:  that JT Leroy sold his work technically as fiction mattered – notwithstanding that "he" created a backstory, a persona, and spent enormous energy convincing the literary world that he existed and what he wrote was his own truth.   While I see her point, it seems to me unduly formalist, as if putting the proper label on the back of the book excuses all the rest.  It has to me a certain “but my fingers were crossed so it doesn’t count” quality. 

The Manchurian Candidate

I'm listening to an audiobook in my car: The Manchurian Candidate, by Richard Condon. I never saw the movie, so can't say how closely it tracks the book, but the book is a great read (a great listen, i guess) and still very timely. Among other things, it's about McCarthyism and demagogery, and the misuse of national security for ideological purposes.  Highly recommended....