Intellectual Property Subversion: Rethinking Creativity and Ownership

Review Essay.

Jason B. Scott, University of Colorado-Boulder

Reviewed in this Essay:

Regulating Style: Intellectual Property Law and the Business of Fashion in Guatemala, Kedron Thomas (Berkeley: University of California Press, 2016).

Culture Jamming: Activism and the Art of Cultural Resistance, Marilyn DeLaure and Moritz Fink, eds. (New York: NYU Press, 2017).

Creativity without Law: Challenging the Assumptions of Intellectual Property, Kate Darling and Aaron Perzanowski, eds. (New York: NYU Press, 2017).

In June 2018, a Brazilian photographer posted an image to Instagram that went on to be shared over 1,000 times. The photo showed a twelve-year-old boy named Wallace gazing at a World Cup match that played on a big screen set up on the street. Wallace wore a cheap yellow shirt with the name “Philippe Coutinho”, a player from Brazil’s national team, and the number “11” scribbled with a felt-tipped marker across the back. The boy was from one of Rio de Janeiro’s poorest and most violent favelas (shantytowns)and could not afford an officially licensed jersey. The media network that owned the broadcasting rights to the World Cup, O Globo, noticed Wallace’s story trending on Instagram and ran segments about him during game breaks. Players from Brazil’s national team posted personal messages to Wallace. Coutinho even sent an autographed jersey to replace the now-famous improvised one. The story was picked up by international news outlets such as The Guardian and El Pais. However, as it circulated, few commented on the contradictions of intellectual property that it laid bare. Brazil’s National Football Confederation and O Globo wage frequent legal battles to protect their intellectual property, including branded clothing and game broadcasts. Yet, these same corporations were more than eager to appropriate the value-laden symbolism of a boy who could not afford to consume their licensed products—and yet who mimicked their form to express his passionate fandom. Lost in the promotion of Wallace’s story was the fact that his homemade jersey produced cultural meaning specifically because it subverted the commodified authenticity of corporate sanction.

Wallace’s story encapsulates a current scholarly focus on the subversion of intellectual property regimes as they are interpreted across cultural settings. In this essay I review three recent books, Regulating Style, Culture Jamming, and Creativity without Law, that examine the subversion of legal copyrights, patents, and trademarks. IP subversion, as I will call the common object of these studies, is a noteworthy cultural phenomenon that aligns with a broader themes in recent anthropological scholarship, such as the right to traditional knowledge in Western legal frameworks (Coombe 1998) and the exclusionary market conditions perpetuated by patents in the pharmaceutical industry (Goldstein 2007). The books I review below show that fashion, food, and graffiti are just as relevant to the discussions of IP as indigenous knowledge or biomedical prospecting.

Regulating Style

In Regulating Style, Kedron Thomas examines a textile industry in Guatemala that employs mostly rural Maya and produces “knockoffs” or unlicensed reproductions of popular global clothing brands. Although knockoffs subvert IP law, they are also wholeheartedly accepted by locals under an alternative set of ethical regimes. Knockoff producers are often labeled “pirates” by international corporations who speak of the counterfeit clothing industry in terms of “rebellion, thievery, bad intentions, and deviant behavior” (p. 2). In contrast, Thomas’ ethnographic informants contend that “there is no original” (p. 5), and demonstrate a sense of ownership not only over their own “knockoff” products but also in relation to brands such as Abercrombie and Fitch, which without the skills and labor of rural Maya would not be produced.

Thomas argues that IP is a key legal tool that allows powerful corporate and state actors to “regulate style”, determining what type of fashion and clothing production is considered legitimate internationally. But debates over “good” copying versus “bad” copying have other ramifications in peripheral settings across the globe where international brands produce clothing (p. 12). By denouncing some actors in the fashion industry as rightful owners and others as criminals, brands not only protect the aesthetic and economic value of their designs but also reproduce forms of cultural exclusion.

The first section of Regulating Style provides the background to Guatemala’s socio-economic development, and the historical context for both regulation and copying in the textile industry there. The middle sections of the book examine literature on IP and branding, how consumers are framed and created by producers in rural Guatemala, and the cultural relationship between Mayan communities and American brands. Thomas does an excellent job combining previous work on Guatemala Maya (ex. Fischer and Hendrickson 2002; Fischer 2001; Warren 1998) with work concerning intellectual property and economic informality (i.e. Roitman 2005). Textile production in Guatemala, exemplified by migrant laborers employed in small urban factories that fulfill international contracts, encourages multiple interpretations of brand ownership that depend on one’s position in the commodity chain. The final chapter looks at how fashion merges with “security talk” (Goldstein 2010), where certain forms of production and producers are criminalized through a discourse of IP rights.

Reading Regulating Style, one could imagine the IP conditions described by Thomas as unfolding in Bangladesh, the Philippines, or any of the myriad of other places that produce clothing for the fashion industry. Alongside a historically-specific disregard for and de-legitimization of Mayan culture, the refusal to acknowledge the informal rights of clothing pirates has produced a form of colonial dispossession increasingly common around the world. However, as Thomas also shows, by appropriating a fashion brand, marginalized communities can subvert not only corporate domination and appropriation of locally-produced value, but also the socio-economic and political conditions that cause oppression.

Culture Jamming

In Culture Jamming, editors Marilyn DeLaure and Moritz Fink gather an excellent group of contributors who likewise describe communities that rework, disrupt, and subvert dominant cultural patterns. The first section of Culture Jamming outlines the social and scholarly history of jamming as a term for resistance and creative, artful, and subversive play, including re-publications of scholarship by Mark Dery and Christine Harold that are considered to be foundational to the subject. These chapters explore Umberto Eco’s (1986) concept of “semiological guerrillas” and his discussion of individuals who introduce symbolic “static” into the signals of culture, challenging dominant representations and highlighting alternative knowledge. The second section offers critical case studies that encourage readers to consider various contexts in which cultural jamming might now be practiced, experienced, and extended as a political method of resistance. The chapters are written by a group of twelve scholars, artists, and activists, surveying various public efforts to jam culture, including graffiti artists who appropriate corporate imagery in order to challenge the ownership of public space and operators of pirate radio stations. The final section of the book examines more critically the limits and potentials of cultural jamming. The editors variously describe these practices as “artistic terrorism” (p. 8), cultural détournement or sabotage (p. 13), and a form of anti-capitalist revolution (p. 88). On the flip side of this militant approach, the authors caution that a subversive practice can always be appropriated by powerful actors. In a neat inversion of the clothing piracy described by Thomas, in which copying is openly avowed as a kind of authentic Maya practice and a subversion of IP, the authors of Culture Jamming warn that activists and artists may have difficultly distinguishing between what is “authentic” cultural expression, and what is designed with the intention of maintaining corporate or state authority. In this sense, Culture Jamming could be seen as a call to action that fosters “hope and inspiration” (29) as well as a warning that IP subversion can be used by dominant cultural creators. Still, at its best, culture jamming subverts an engineered “culture of consumption” (Horkheimer and Adorno 2000[1944]), identifying the oppressive relationships upon which knowledge creation is founded and taking steps to emancipate society from false narratives of creativity.

The editors and some of the individual authors of Culture Jamming make a point to reference Kembrew McLeod (2007) and Lawrence Lessig (2004), scholars who detail the legal mechanisms that effectively criminalize the appropriation, remixing, and dissemination of various cultural forms, and many of the contributors specifically focus on subversion and regulation in relation to intellectual property law. Alongside their frequent discussions of copyright, patent law, and other IP issues, however, the authors also invoke a unique lineage of jammer literature such as Mark Dery’s Culture Jamming: Hacking, Slashing, and Sniping in the Empire of Signs (1993) and Christine Harold’s Our Space: Resisting the Corporate Control of Culture (2007).  Thus, the volume’s essays provoke a broader imagination of potentials for appropriation, remixing, and cultural transformation across social spaces. Future scholars may build on these themes by discussing how powerful institutions such as corporations and governments use culture jamming to pursue their own problematic goals. For example, while reading through each chapter, I often was reminded of the Internet memes promoted by Russian trolls on social media during the 2016 election. According to U.S. intelligence agencies, Russian state agents were believed to deceive thousands if not millions of potential voters through the use of “fake news.” By combining politically provocative declarations with eye catching imagery, state-sponsored trolls appeared to embrace the libertarian and disruptive frameworks of social media. One person’s subversive cultural jammer (an Internet troll) may have been another’s defender of cultural norms (a state agent). Considering the political effects of these more problematic jammers, I finished Culture Jamming imagining a research project that would ask “what happens when ‘the man’ learns to jam?”

Creativity without Law

Creativity without Law is centered on the question of whether strong IP law is necessary to promote creative behavior. The editors, Kate Darling and Aaron Perzanowski, ask about the relation between legal incentives and creativity, and argue that “despite its deep preoccupation with incentives, IP policy embraced legal exclusivity without a careful examination of the conditions and motivations that define the creative environment” (2). Throughout the volume, the reader is introduced to IP laws that do not work or fail to address the needs of specific creative communities. Stopping short of calling traditional IP law impractical, Creativity without Law describes creative communities that thrive, despite the legal forms of property and rights that routinely fail to protect or foster their unique forms of sharing and expression.

For Darling and Perzanowski, IP law tends to ignore the capacity of creative industries to self-govern through dynamic social or market responses. The editors point to factors other than formal state laws that encourage communities to exercise modes of creativity, including city planning, ethics laws, and market regulation. Creativity without Law looks towards negative spaces, where legal frameworks are either unpractical, unclear, or easily subverted, and what practices and meanings are built around this absence of law.

The individual chapters of Creativity without Law demonstrate the various way people can assert alternative understandings of creativity, property, and economic participation. The first set of chapters compare laws and practices that relate to food and medicine. According to Darling and Perzanowski, pharmaceuticals and cocktails are “distant cousins” (7), and examining them together can reveal common ideas about what copyright and patent law protect. These chapters take readers to settings as varied as French kitchens and medical laboratories. Both the medical and hospitality industries have traditionally avoided claiming ownership of techniques and practices and instead promoted the sharing of knowledge. However, since the late 1970s there has been a proliferation of patents on genetic materials and medical procedures while entrepreneurs in the food industry have likewise sought legal control of recipes, flavors, and dishes.

The second section of Creativity without Law looks at tattoo and graffiti artists who shun formal copyright protections in favor of internal social norms to protect individual artists’ rights to certain designs. In these communities copying a recognizable design is frowned upon, and disputes are negotiated through non-legal mechanisms. The third and final section of the book discusses “creative practices that—while still unfamiliar to most readers—exhibit many of the hallmarks typical of IP-reliant industries and nonetheless subvert expectations about the role of legal regulation” (10). The Nigerian film industry, for example, grapples with piracy much like its Hollywood cousin, but rather than seeking stronger protection from the law, producers circumvent weak IP enforcement with prolific cultural production. Contributors in this section reiterate a central theme found throughout Creativity without Law, that even without the guidance of IP, creative industries can still produce, innovate, and thrive.

The volume’s final chapter, written by Chris Sprigman, discusses IP’s “negative space” and is particularly interesting, as it might provide the basis for a wider, more theoretical discussion of IP subversion as a key contemporary social practice. Negative spaces are industries that could technically be governed by IP law, but instead occupy an economic and cultural space outside of IP law. The example that Sprigman uses to open his discussion, comparing the failure of Microsoft’s proprietary encyclopedia Encarta to the success of the donor-sponsored and crowd-sourced encyclopedia Wikipedia, helps us concretely imagine the unique social products that might occupy a negative space and defy dominant logics of IP. Sprigman’s description of negative space gives a name and a set of qualities to social contexts that encourage creativity regardless of IP law.

Comparisons of IP Subversion

These three works, ultimately, help us ask a common set of questions relating to subversion of IP regimes: How do individuals and communities subvert dominant legal codes related to intellectual property? What is an authentic or legitimate form of expression in a neoliberal and post-modern world? What are the roles that emerge through IP subversion (Artists, plagiarists, satirists, textile factory workers, etc.)? And, how can we map the social, political, and legal architectures of unique creative communities beyond or in the absence of IP law? For many of these scholars, moreover, this set of questions leads to broader advocacy for more fair and egalitarian ways of understanding and regulating cultural production, beyond property rights, which might prioritize the rights of marginalized individuals to deconstruct power and authority rather than the rights of dominant and dominating corporate “owners” of culture.

There are some tonal differences between the works that reflect the diversity of perspectives found in the study of IP subversion. Whereas Culture Jamming maintains a scholarship of hope, Creativity without Law appears more pragmatic, and Regulating Style appears more pessimistic about the influence of IP in marginalized communities. Regulating Style is by far the easiest to read because it offers a concise contextual and theoretical narrative grounded in a single-authored case study, rather than an edited volume with multiple contributors. Thomas rarely strays off her theoretical course and, by concentrating on the specific actions and struggles of marginalized creators, she demonstrates the intricate and uphill battle waged by fashion pirates to exercise their own creativity. For both the edited volumes, the various authors ground their arguments in case studies from popular culture and well-known social phenomena. Where Culture Jamming describes a number of contexts but appears theoretically cohesive, Creativity without Law’s theoretical approach is as varied as the contexts that it describes. Culture Jamming, however, seems ethnographically thin, with its primary focus on the products produced and circulated by culture jammers. This ethnographic “thinness” could have been addressed with a more in-depth discussion of the authors’ relationship to the cultural jammer scene. Are the author’s jammers? Do they study negative spaces in hopes of dissecting problematic economic systems in their more immediate political and social contexts?

Finally, these works suggest that the future of IP subversion and its study lies at the intersection of communities of practice, with their own norms and understandings, and the codes and practices of internet circulation. Recent anthropological scholarship suggests that information technology is becoming the preeminent focus of IP studies (Dent 2016). The Internet is at the forefront of popular discussions about rights to express, create, and appropriate, not to mention conversations about who owns what part of an individual’s personal information and creative postings. Scholars have noted how the internet provides alternatives to the modern state (Kelty 2008), and indeed the Internet has created new forms of censorship (Mazzarella 2013) and criminality (Williams 2006; Nordstrom and Carlson 2014). However, popular circulation of images or copies continues to influence the understanding and indeed the value of even very tangible creative products, as the story of Wallace with which I opened this essay shows. The three books reviewed here indicate some possibilities for further conversations that might directly connect IP with digital circulation and its modes. We might study drink recipes shared on corporate websites and the uses people make of them, or the use of social media platforms to coordinate a global anarchist movement. Particularly in our current political moment of fake news, government-sponsored trolls, and techno-anarchists, a discussion about subverting IP law must consider how it is not just law but also technology that will shape our future ideas about authenticity and ownership alike.

References

Coombe, Rosemary J. 1998. The cultural life of intellectual properties: Authorship, appropriation, and the law. Durham: Duke University Press

Dent, Alexander S. 2016. “Intellectual Property, Piracy, and Counterfeiting.” Annual Review of Anthropology 45: 17-31.

Dery, Mark. 1993. Culture jamming: Hacking, slashing, and sniping in the empire of signs. Vol. 25. Westfield, NJ: Open Media.

Eco, Umberto. 1986. Semiotics and the Philosophy of Language. Vol. 398. Bloomington: Indiana University Press.

Goldstein, Daniel M. 2010. “Toward a critical anthropology of security.” Current anthropology 51(4): 487-517.

Harold, Christine. 2007. OurSpace: Resisting the corporate control of culture. Minneapolis: University of Minnesota Press.

Horkheimer, Max, and Theodor W. Adorno. 2000[1944]. “The culture industry: Enlightenment as mass deception.” In Dialectic of Enlightenment, John Cumming, trans., pp. 120-167. New York: Continuum.

Lessig, Lawrence. 2004. Free Culture: The Nature and Future of Creativity. New York: Penguin Books.

Mazzarella, William. 2013. Censorium: Cinema and the open edge of mass publicity. Duke University Press.

McLeod, Kembrew. 2007. Freedom of expression®: Resistance and repression in the age of intellectual property. Minneapolis: University of Minnesota Press.

Kelty, Christopher. 2008. Two bits: The Cultural Significance of Free Software. Durham: Duke University Press.

Posey, Darrell. 1990. “Intellectual property rights: and just compensation for indigenous knowledge.” Anthropology Today 6(4): 13-16.

Roitman, Janet. 2005. Fiscal disobedience: An anthropology of economic regulation in Central Africa. Princeton: Princeton University Press.

Williams, Matthew. 2006. Virtually criminal: Crime, deviance and regulation online. New York: Routledge.

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