Conceptualizing law and culture
WHAT place does a legal article have in a Seminar special issue on film cultures? Implicit in this question is a set of assumptions of what constitutes fields of theory and practice. The aim of this short piece will be to question the classical boundaries drawn by disciplines like law which aim to portray themselves as autonomous bodies of knowledge untouched by developments in areas like cultural studies. It also seeks to question the premise that cultural studies make when it seeks to study either cultural artifacts or cultural phenomena, and argue for the need for a stronger critical interrogation of legal practices as sites of cultural practice.
While it may have come a little late, interdisciplinary methodology has certainly arrived as far as legal studies is concerned. Beginning with the sociological school of jurisprudence there has been a concerted interest in the idea of the role that law plays in society, and its relationship to the various contested processes which we call culture. One of the limitations that the law and society school had in conceptualizing this relationship between law and culture was that it saw law and culture as being two autonomous disciplines which were nonetheless linked to each other. Thus we had the popular theory of law being a reflection of the prevailing cultural and moral norms in society, and scholarship in the area attempted to unravel the mysterious processes through which the two were inter-connected.
Such an understanding of law and culture, however, assumed the relative stability of both law and culture. Thus when law and culture were thought of together, they were conceptualized as distinct realms of action which were only marginally related to one another. For example, we would tend to think of watching a film as a cultural act with little or no significant legal implication. We would also assume that a lawsuit challenging certain scenes in a film is largely a legal problem with few cultural implications.
In India for instance, the work of Upendra Baxi and Rajeev Dhavan has emerged from the bedrock of the law and society movement. The limitations of this work lies in their reliance upon the high culture of the law, in the form of appellate judgments, the rule of law, alternate legalities, and so on, where they recognize the instrumental relationship that law has with society and social change itself.
Cultural analysis has since moved beyond its stable accounts and has come to include a wide array of activities and strategies which people deploy in the process of meaning making. Developments in legal studies have also come to recognize that law and the idea of legality may be just one of the various processes through which people make sense of themselves and their role in society.
If there is one common concern that clearly articulates the desire for studying law and culture, it is a recognition that the traditional boundaries drawn by disciplines do not necessarily offer the most intelligible accounts of society. What then is the role of an interdisciplinary enquiry? A mere recognition of the importance of inter-disciplinarity by itself does not really say anything interesting. We have to be clear about the role that such an enquiry has.
What does it mean for legal studies to adopt cultural analysis and/or cultural studies? In what way will a cultural study of law enlarge and alter our conception of the way law operates in our identities, interpretations, and imaginings? Is it worthwhile to use the intellectual strategies and methodology of cultural analysis for the analysis of legal phenomena?
Rosemary Coombe argues that ‘an exploration of the nexus of law and culture will not be fruitful unless it can transcend and transform its initial categories. A continuous mutual disruption – the undoing of one term by the other – may be a more productive figuration than the image of relationship or joinder.’ It is therefore important to see the goal of this interdisciplinary project as one which attempts to understand law not in relationship to culture as if they were two discrete realms of action and discourse, but to make sense of law as culture and culture as law, and to begin to think about how to talk about and interpret law in cultural terms.
Thus to go back to our previous example, our understandings of the film and the lawsuit are impoverished when we fail to account for the ways in which the film is a product of law and the lawsuit a product of culture, and how the meaning of each is bound up in the other, and in the complex entanglement of law and culture.
What then are some of the ways in which we see the relationship between legality and the idea of culture?
* Constitutive theories of law, for instance, have been important in revealing the close relation that law has to power within the linguistic field in which law functions. That is, law does not merely describe or reflect a set of circumstances in society but through such description actually creates or constitutes that sphere which we call the cultural. A clear instance of this is Sec. 377 of the IPC which criminalizes ‘unnatural sexual offences’. The figure of the homosexual as a deviant of the law therefore gets constituted by the operation of Sec. 377.
* If culture can be broadly defined as various practices of signification, then a cultural analysis of law is crucial in helping us understand ‘the signifying power of law and law’s power over signification.’ It forces us to recognize that legal meaning may be found and invented in the variety of locations and practices that constitute culture. Furthermore, these locations and practices may themselves be encapsulated, though always incompletely, in legal forms, regulations and symbols (Rosemary Coombe). There may, therefore, be a rich project in uncovering the cultural and narrative life of the law as it were, in the various day to day situations in which people encounter and deal with notions of law and legality.
* Law continues to play a large role in regulating the terms and conditions of cultural production and cultural practices. Cultural artifacts on the other hand have revelled in representing issues of law and legality. While there have been attempts at studying these instances of the relationship between law and legality, they have largely concentrated on the cultural representations as metaphors of legality. It is important however to move beyond the metaphor of legality analysis into understanding how the conditions for the circulation of such cultural practices are themselves instances of legality. A prominent example in this instance is the idea of authorship and originality itself as legally mediated categories.
In the rest of the paper I shall try to provide an account of a recent instance of the interaction between law and film cultures. The incident in question revolves around a claim or an attempt made by Rajnikant to protect a sign that he uses in his film Baba. I use the incident to pose larger questions of what it means to understand the language of legality as it is mediated through processes of cultural consumption. While there is uncertainty about the manner and mode of protection that he sought, there was some fanfare and media publicity claiming that Rajnikant was attempting to copyright and trademark the sign he uses in the film.
This attempt to formally protect the gesture spawned a furious debate around what it was that he was attempting. The authorship claims being made by him around his persona problematised in a significant manner the very question of what it means to be a star, or what it means to protect one’s stardom. (See for instance the debates in the commons-law list at www.sarai.net).
‘Clint Eastwood doesn’t want the tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don’t want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it "Star Wars". Pepsico doesn’t want singers to use the word "Pepsi" in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of. Something very dangerous is going on here.’ – Judge Alex Kozinski, Dissenting judgment in White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1512-13 (9th Cir. 1993).
It is important to distinguish and clarify some of the issues with respect to the right to publicity and the manner in which it has been used in popular culture debates. The right to publicity is a common law right which accrues to the individual persona of the celebrity. It does not preclude any claim of protection over the work from copyright or allied laws. It must be stated that the right to publicity has a long history in Hollywood and all kinds of claims have been made by actors about their rights. In India, Rajnikant’s claim was perhaps the first public claim towards such a right to publicity.
In common law, the right to publicity then is a right to certain distinguishing and identifying characteristics, features or behaviour of a celebrity. These rights are assignable and tradable. Some notable illustrations include: (i) Johnny Carson invoked his right of publicity to stop a small-time manufacturer from marketing a line of ‘Here’s Johnny’ portable toilets. Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983). (ii) Martin Luther King’s family may have no legal remedy against the revelation that the slain civil rights leader ‘engaged in extramarital sexual encounters on the last night of his life.’ But King’s family, having inherited his right of publicity, can stop the marketing of an inexpensive plastic bust. Martin Luther King, Jr., Ctr. for Social Change, Inc. v. American Heritage Prods., Inc., 296 S.E.2d 697 (Ga. 1982).
So on the one hand you have a range of these familiar cultural artifacts, the relics of popular culture, and on the other hand these are also the subject of intense dispute about property and ownership claims. Jaines Ganes, having a look at one of the classical legal works, Nimmers Companion to Entertainment Law, says, ‘Nimmer cases and materials on copyright law and entertainment law is an alternative history of the film industry. For instance, Gaslight is important not only as a canonical film melodrama but as the object of a radio parody. The Maltese Falcon is the centre of dispute over serial rights; and Warner Brothers Dark Passage, which later became the television serial, figures in the definitive case on the "indivisibility of copyright". Reading Nimmer’s cases and materials is an uncanny experience for the historian of American film.’
The greatest achievement of cultural studies has been about the articulation of popular culture as a contested terrain in which different subjects (racial, caste, gender, class, sexuality) struggle, albeit on unequal terms, to make and establish their own meanings and identities. The consumption of cultural commodities (movies, songs, fashion, television programmes) is therefore seen neither as uniformly received nor uncritically accepted and while there may have been ‘preferred meanings’ generated and circulated by the culture industry, these meanings were often recoded and often subverted in contextual circumstances.
What then happens when these various contestations over meaning get encoded as acts of deviance through the operation of some form of legality? How for instance does intellectual property laws and more particularly in this case, the right to publicity function to limit such circulation of meaning? Does it facilitate a process through which the manufacturers of culture retain a stronghold over the possibilities of circulation or does it allow for usages which may be more democratically conceptualized?
It is clear that intellectual property laws have the ability to privatize a number of our culture’s basic semiotic and symbolic resources and take them out of the public domain. See for instance, San Francisco Arts & Athletics Inc. v. United States Olympic Comm., 483 U.S. 522 (1987), a US Supreme Court case which held that the United States Olympic Committee had the right to prohibit a nonprofit gay rights organization from using the word ‘Olympic’ in conjunction with the word gay.
It is important however to note that it is not as if the manufacturers of these artifacts don’t want their products to enter into the realm of popular culture. On the contrary it is crucial that they become a part of the daily vocabulary of the pope or the audience. Thus, it is not as if Rajnikant does not want his sign to be used by his ‘fans’ or audience but by obtaining or claiming rights against the sign, he acquires the absolute right to determine the ways in which this sign may be used or control the ways in which it may be misused.
In the present context, the immediate motivation for Rajnikant may be mixed. From an attempt to control a particular image as a move before his entry into politics or even the emergence of his self-awareness as being a global product, his claim however gets mediated through the use of the language of intellectual property. Inherent then in the right to publicity protection, is this rather quaint notion of the pristine image that is sought to be protected.
The point is not to deny that Rajnikant has a signature style or as Ashish Rajadhyaksha says, ‘This style, as you know, involves an entire distinct ensemble, including a particular style of camerawork, editing, sound, and even special effects, that is clearly inscribed into the very textual fabric of the film, appears in film after film.’ The style also emerges when a number of people emulate this style, either in reverence or in jest. The style also emerges when it is used by Rajni clones, mimics or incorporated into the very textual fabric of other films.
What then is the precondition to the stars claiming an exclusive right to their image, a right which is articulated through a language of exceptions. Richard Dyer has written at some length about the use and appropriation of the image of Judy Garland by urban gay men as a powerful means of speaking to each other about themselves. Or in the same vein the use of James Dean by contemporary lesbians. So what happens when these stars or their estates do not agree with particular appropriations or uses?
In an interesting case, a small group brought out a card bearing a picture of John Wayne, wearing a cowboy hat and bright red lipstick, with a caption, ‘It’s such a bitch being butch.’ Wayne’s children, among others, objected to the card not only on the ground that its sellers were making money from The Duke’s image – money that should go to them, but also that the card was ‘tasteless’ and demeaned their father’s (hard-earned) conservative macho image.
As Michael Madow notes: ‘Publicity rights are about meaning as well as money. The question "Who owns Madonna?" is not just a question about who gets to capture the immense economic values that attach to her persona. The question is also, even chiefly, about who gets to decide what "Madonna" will mean in our culture: what meaning(s) her image will be used to generate and circulate, and what meaning(s) she will have for us. By centralizing this meaning-making power in the celebrity herself or her assignees, the right of publicity facilitates top-down management of popular culture and constricts the space available for alternative and oppositional cultural practice. This is perhaps not reason enough to reject the right of publicity tout court. But it does place a heavy burden of justification on the proponents of the right.’
The emergence of the right to publicity as a distinct right within the larger genus of intellectual property rights has a relatively recent history. But this should be distinguished from the fact that the right of publicity is a new right for a new ‘wrong’. Large-scale commercial exploitation of famous persons goes back to at least the 18th century. It continued throughout the 19th century as well, without it having to be a problem to be regulated by law. If at all, the practice seems to have been supported by a widely shared conception of famous persons as a kind of communal property, freely available for commercial as well as cultural exploitation.
For instance, after Benjamin Franklin’s arrival as ambassador to France, Franklin’s likeness began to appear ‘on medallions, snuffboxes, rings, clocks, vases, handkerchiefs, and pocket knives.’ During Sarah Bernhardt’s 1880 American tour, manufacturers and merchants ‘cashed in with Sarah Bernhardt perfume, candy, cigars, and eyeglasses.’ Two years later, when Oscar Wilde visited the United States on a much publicized and controversial lecture tour, advertisers put his image on trade cards for such products as Marie Fontaine’s Mouth and Freckle Cure. So when does the change start occurring?
The first change occurs between the end of the Civil War and 1900; total expenditures on advertising soared, multiplying tenfold and transforming the American landscape in the process. In urban centres, ‘every available building and public conveyance was plastered with some sort of commercial message,’ even as ‘enterprising advertisers easily convinced rural inhabitants to have the same thing done to their roadside farm buildings.’
Second, a shift in advertising content. Previously, advertising had mostly been word-based, usually presenting consumers with a ‘reason’ why they should select the particular product. In the late 19th century, however, the perfection of chromolithography made possible a new kind of visual (i.e., image-based) advertising.
Third, an increase in daily newspaper circulation from 2.6 million in 1870 to 8.4 million in 1890.
And fourth, the emergence of the film industry and the star system (well documented) which begins to cast the right as a natural right for a celebrity, now defined as a person known for his well-known ness.
The question of what a star is has been answered at some length in film theory, but what happens when the star also emerges as an encoded figure produced by the operation of certain legal mechanisms? How does film theory account for this new domain that allows for certain characteristics of stardom or celebrityhood to emerge? How, for instance, do you deal with a star who uses the legal value of his celebrity status to prohibit certain forms of appropriation? For instance, in Woody Allen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985), Allen claimed that a video store had used his likeness without his permission. In deciding for Allen, the court essentially deemed that another individual had violated a celebrity’s rights simply because he physically resembled the celebrity and appeared in an advertisement.
Madow states that, ‘A celebrity does not make her public image, her meaning for others, in anything like the way a carpenter makes a chair from a block of wood. She is not the sole and sovereign "author" of what she means for others. Contingency cannot be entirely erased. The creative (and autonomous) role of the media and the audience in the meaning-making process cannot be excised. To be sure, the precise distribution of semiotic power will vary from case to case, as will the part played by luck and politics. Sometimes, the celebrity herself or persons in her pay seem to perform the lion’s share of the meaning making work; at other times, the work is left to experts in the celebrity industry, for whom the celebrity is little more than "raw material" to be "mined and worked up into" a saleable commodity.
‘Sometimes, the meaning the celebrity (or her sponsors) initially selects and circulates largely resists displacement; at other times, this "preferred meaning" is inflected, subverted, or inverted, either in the culture at large or in a particular subculture, as the celebrity’s fans weave their own narratives and create their own fantasies about her. But despite these variations, a celebrity’s public image is always the product of a complex social, if not fully democratic, process in which the "labour" (time, money, effort) of the celebrity herself (and of the celebrity industry, too) is but one ingredient, and not always the main one.’
If all celebrities have a natural right to their persona, then what happens to Madonna. John Fiske asks of Madonna, whose entire persona is an ironic reworking of the Hollywood myth of ‘the blonde’, how much she owed to Marlene Dietrich, Marilyn Monroe? To the directors (Hawks, Huston, Mankiewicz, Wilder) who made the films in which Monroe appeared? To Andy Warhol and the Kennedy brothers, who helped elevate her to icon status? Similarly, what is one to make of the fact that every one of Subhash Ghai’s leading actors have in some ways been clones of Dev Anand.
These are just the tentative beginnings towards a critical move that seeks to interrogate culture legally. As a domain of cultural politics, intellectual property serves as a fertile ground to explore the prospects for an interdisciplinary practice that draws from ethnography, cultural studies, as well as law and society scholarship. The obvious failure of the traditional positivist, formalist and even the classical critical legal studies mode opens up opportunities to explore law as a more diffused force shaping social consciousness and behaviour.