October 21, 2007
When disagreement becomes infringement
The misuse of copyright law to defeat free speech is getting out of hand. I made a wisecrack about it in an earlier post, as my attempt to produce an obvious political parody of Che Guevara's widely disseminated image has now been rebuffed by two different t-shirt designers claiming that even making fun of the image constitutes infringement -- notwithstanding fair use and parody.
Before the company realized its mistake and flagged the design, I had ordered one of the t-shirts, and yesterday it arrived in the mail. I thought the least I could do was put it on and pose for a picture of me, attempting to duel with commie fascism:
If you look carefully, you'll see that I am holding a Model 1898 Argentine cavalry saber:
That sword would have been in use in the Argentine cavalry when Ernesto was born. Parenthetically, when I lived in Argentina in 1968, the president was a former cavalry commander, General Juan Carlos Ongania, who had helped identify Che Guevara's severed Argentinian hands. (As a matter of fact, as recently as 2004, Argentina and Castro were fighting over the rights to Guevara's corpse.)
Much as I'd hate this to turn into a "more than you needed to know about Guevara" trivia post, I'm afraid it is becoming that. So while I'm on the subject of Che, let me pause to consider the Cult of Che.
There is nothing new about this well-established cult. Its originated in the development of mythology shrewdly built around a failed revolutionary whose death was in the interest of the very people who built and encouraged the growth of the cult. The reason for this is obvious; Che was a handsome, charismatic leader, but wildly impractical, and his ideology was at odds with that of Fidel Castro and the Cuban government. Worse yet (from their standpoint), his travels to the Soviet Union had convinced him that the Soviet Communist model was not working. Probably because his emotional fanaticism was fueled by personal pride (you know, "real men" can't stand to admit they are wrong), instead of questioning the premise of Communism, he decided that the more fanatic variety -- Chinese Maoism -- was the way to go.
Bad career move. Castro couldn't wait to get rid of him. But (if you can stomach the thought for a moment), put yourself in Castro's position. What do you do when a highly popular and charismatic figure is poised to make major trouble with your only major underwriter, without whose support your regime will almost certainly fail? Obviously, you can't just kill someone like that. And Castro was too smart to do something crass and stupid, like staging an "accident."
What Castro probably did know was that as a military tactician, Che, a failed doctor, was a bit of a dud. During the abortive Bay of Pigs invasion (a perfect opportunity for Cuba's heroes -- both existing and newly minted), Che was relegated to a place far from the action in what has been called "one of the worst conceived, planned, and executed military-intelligence operations in modern history." It would not have been possible to give the Cubans -- especially Che -- a better propaganda opportunity, and in retrospect I think Fidel knew it, and would not have wanted Che to have a central role in any way. Whether by design or sheer incompetence, Guevara was nowhere near the botched invasion, and all he managed to do was shoot himself in the head:
Che's role in "Imperialism's First Defeat!" as Castro refers to the Bay of Pigs invasion merits mention. The American invasion plan included a ruse in which a CIA squad dispatched three rowboats off the coast of western Cuba in Pinar Del Rio (350 miles from the true invasion site) loaded with time release Roman candles, bottle rockets, mirrors and a tape recording of battle.Who knows?
At any event, Guevara did manage to thank the United States for the invasion.
This egomaniac was a major headache for Fidel, and I am sure he breathed a huge sigh of relief when Che finally met his doom, and the building of the real, controlled, personality cult could begin in earnest.
The Korda picture is the quintessence of what I call "imageism." Without it, I'm not sure the cult of Che would have ever been quite what it was -- and is. For whatever reason, no other picture of Guevara captures that romantic essence of the rich Western kid who overcame his roots and became a champion of armed revolution. It is supposed to be an inspiration to others.
As such, it is not so much a picture as it is pure, passionate propaganda -- for Communists it is every bit as much a religious symbol as a famous religious image like Da Vinci's Last Supper. From a constitutional perspective, the Korda image is the essence of political expression. For it to have gained "copyright" protection (which I do not think it has) is a sham and an outrage. It was deliberately, systematically placed in the public domain, circulated worldwide, and only in 2000 did the photographer manage to wangle what is called a "judgment" (a court-approved settlement is what it is) from a British court.
Those who promote the Cult of Che believe that this "judgment" gives them the exclusive right to the image -- even against parody or ridicule of it. Ridicule, parody, or any use the cult owners dislike, so they claim, constitutes infringement.
(Which probably means that if I printed up this post and titled it "Che for Dummies" I'd face a lawsuit for double infringement!)
The resultant attacks on the free speech have of course been directed at critics of totalitarianism like Reporters Without Borders, who face bankruptcy simply because they "grafted the face of Korda's "Che" on to a picture of a French riot squad officer" -- something which is still (IMO) allowed in the United States even if the cowardly American T-Shirt companies are afraid to touch it.
I think there's an important and fundamental principle here. Whether it is moral or legal, it is certainly of constitutional dimension, because the essence of censorship is government-enforced prohibitions on free speech -- especially when such restrictions are based on political content.
While there is a longstanding constitutional "exception" for commercial speech, the assumption was that commercial speech was not political and thus not deserving of First Amendment protection which is there to protect political speech. What worries me here is that copyright law is increasingly allowing this commercial speech exception to engulf and devour the broad protection afforded political speech.
Thus, I believe rather passionately that not only do I have the legal right to politically attack the Cult of Che by desecrating the Korda image, but I have a broader moral and legal right to do so in order to defend an important constitutional principle.
Aside from its inherently political nature, the Korda image is (I think) squarely in the public domain. In a Church of Scientology involving the public domain question, the court held that if Hubbard's works "had fallen into the public domain before 1983" (which Guevara image had) "then any registration of copyright over such works would be invalid." Not only did Korda fail utterly to object to the fact that the posterized version of the Che image had been circulated worldwide, but with no objection from Korda, its Irish author declared it a free image:
I made all the Guevara images copyright free. That's how it spread everywhere so quickly.The posterized Che image thus became analogous to the freely distributable Iwo Jima image. Another discussion here.
It even inspired me to come up with another pain in the ass infringement
Which in turn led to a totally psychotic one -- the "Munch Scream" Screaming Che!
Munch Che Sí!
Munch Che Do!
As you can see, things got a bit out of hand. And only because I didn't want to encourage the Minutemen did I refrain from putting an eagle devouring a snake above Che's head in the middle. (Um, that would be intentional international disrespect towards the copyrighted logo of a country, which would have to constitute copyright infringement, wouldn't it? )
Odd that I would mention my moral rights under the United States Constitution, as there is such a thing as moral rights theory in the context of copyright law. But "moral rights" in the European sense mean the right to censor. American legal commentators have warned of the clear conflict between moral rights theory and parody:
Other commentators have expressed concern that traditional, continental moral rights, if adopted in the United States, might endanger the creation of socially desirable derivative works, including parodic uses. For this reason, some of these commentators have called for the application of fair use in order to permit such beneficial uses. See PATTERSON & LINDBERG, supra note 93, at 176 ("The [traditional] moral-rights doctrine should not, for example, be used . . . to inhibit the genres of burlesque, parody and satire."); Kwall, supra note 21, at 71 (noting that fair-use doctrine "represents a particularly significant limitation on [traditional] moral rights" and that such limitation is "justifiable as a 'necessary concomitant' of living in a democratic society"); Lacey, supra note 111, at 1595 n.267 (stating that artists should be prevented "from asserting [their] right of integrity to prevent genuine parodies of [their] work"). These commentators' concerns are warranted in the context of continental, personality-based moral rights, which can prevent alterations of even reproductions of art works. If such broad moral rights were recognized in the United States, fair use should permit the unauthorized creation of desirable derivative works. However, the rights recognized by VARA are significantly less expansive than traditional moral rights, protecting only original .works of visual art."When the line is crossed and the "art" -- or the "commercial speech" -- become clearly political, the rules which originated to protect commerce no longer apply.
Obviously, my moral rights theory is inconsistent with their moral rights theory. But we live in the country where I have the right not only to thumb my nose at their view of moral rights, but to parody the very concept of copyright as an interference with free speech.
This Harvard Law School site has an invaluable collection of helpful links, such as this parody and fair use -- defined as "a humorous form of social commentary and literary criticism in which one work imitates another."
Guevara with headphones, anyone?
Or how about Guevara with a necktie, shown here around the time of his Departure For The World (the famous Motorcycle Diarrhea run).
Sorry about the staples that have pierced our hero's head and chest! But these foul acts of desecration were committed not by me but by the Colombian government.
Obviously, if you're a handsome and rich young egomaniac, it's not enough to just sit around. (No time to lament the loss of Evita -- the fake future hopes of Hollywood and Andrew Lloyd Weber notwithstanding.)
Anyway, while the PINO CHE T design was simmering, I read about the Fox News reporter named Rebecca Aguilar who bullied an elderly Texas man who had defended himself against burglars. By now that news is old, and it has been commented upon by others such as Glenn Reynolds and Ed Morrissey,
What outraged me more than the conduct of the reporter was the way the station reflexively availed itself of copyright laws by pulling the video! Yet it was the video which showed the very bullying by the reporter that generated all the discussion. That is the conduct which is precisely at issue, and I think it's a classic example of how copyright law is being abused. Glenn Reynolds linked the Fox affiliate's legal threats against Dan Riehl (who pulled the video) and this Breitbart video discussion incorporating it. (There's also another link here.)
But it's YouTube with which everyone is familiar these days, so Fox wasted no time in complaining about "copyright infringement" -- and the video disappeared, with this message appearing in its place:
This video is no longer available due to a copyright claim by KDFW FOX 4 TV.Sheesh. I'm surprised the station hasn't tried to assert its copyright rights over the reporter's "trigger happy" and "shoot to kill" expressions as part of its "protected content."
This was Glenn Reynolds' comment on the matter:
KDFW has gotten the video -- previously embedded here -- pulled from YouTube, which suggests that they feel they have something to hide. But you can see the relevant segments as part of this commentary on Aguilar's journalistic ethics, at Breitbart.tv.She's on the side of the "little guy" all right -- unless and until the "little guy" decides to think it over and watch her again in a way she or the station might think disrespectful. Then watch them pull a copyright infringement claim out of their hat and crush the "little guy."
What happens when a "little guy" strikes back? The anti-Hugo Chavez "don't buy gas from this ass" billboard (in this video) strikes me as a good example of something to watch. (The fallout and the video, of course.)
I would expect a lawsuit or a demand that the Citgo parody be taken down too. After all, the billboard shows Citgo's corporate logo, does it not? I'm sure the name "Citgo" is protected too, and I don't doubt that some clever lawyers could figure out a way to claim that anyone who criticized "Citgo" was guilty of infringement by using the name "Citgo."
I mean, just look at the this flagrant example of the disrespect shown to a leading company and its fearless leader!
And on top of that, there's the destruction of the glass monument to Che Guevara© in Venezuela! Not only was the image copyrighted, but it was a protected religious shrine! Why, almighty Che had actually stopped right there during his copyrighted Motorcycle Diaries© trip!
How dare these heretics vandalize a sacred image at a place for religious pilgrimages! What's next? Images of Che photoshopped into the sacred corporate logo?
Death to the copyright infringers!
Death to the parodistas!
Parodistas al Paredón!©
(Probably what MoveOn© would love to do the parodizers in their disinfrinchisement campaign too. It can't happen here!)
Yes, but he was young! He was handsome! And he was idealistic!
UPDATE: I am muy honored by Compañero Glenn Reynolds, who cared enough about the dead Che© to link this post.
¡Y hasta la victoria siempre!©
posted by Eric on 10.21.07 at 01:45 PM
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