From amrut_joshi at hotmail.com Fri Aug 2 20:47:39 2002 From: amrut_joshi at hotmail.com (amrut joshi) Date: Fri, 02 Aug 2002 15:17:39 +0000 Subject: [Commons-law] (no subject) Message-ID: An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20020802/da8cda7b/attachment.html From lawrenceliang at vsnl.net Mon Aug 12 17:16:42 2002 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Mon, 12 Aug 2002 16:46:42 +0500 (IST) Subject: [Commons-law] Sarai-ALF- Mahiti invitation for comments on proposed Copyleft registry Message-ID: <20020812114642.D76BA20139@bom6.vsnl.net.in> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20020812/505be7fc/attachment.pl From lawrenceliang at vsnl.net Sat Aug 17 14:45:41 2002 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Sat, 17 Aug 2002 14:45:41 +0530 (IST) Subject: [Commons-law] a blast from the south Message-ID: <20020817091541.7A67C114968@webmail.vsnl.com> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20020817/7701c5cc/attachment.pl From jeebesh at sarai.net Mon Aug 19 16:57:28 2002 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Mon, 19 Aug 2002 16:57:28 +0530 Subject: [Commons-law] Fwd: Open letter to Goan musicians... Message-ID: <02081916572800.03851@pammi.sarai.kit> Important call. Will be of interest to this list. best, j ---------- Forwarded Message ---------- Subject: Open letter to Goan musicians... Date: Sun, 4 Aug 2002 13:22:44 +0530 (IST) From: Frederick Noronha Dear musicians from Goa: This is a dream: to create a bank of 'open source' MP3 music from Goa, and by Goan musicians worldwide... that could be shared among music enthusiasts freely across the globe through the Internet. If you share this dream, or think it could be workable, read on... How would it help those volunteering to share their skills? Firstly, it would build awareness about the depth and variety of Goan music that has evolved over the centuries and continues to evolve. Secondly, it would showcase the talent and skills of musicians linked to Goa. Thirdly, and importantly, it would increase the amount of publicly-accessible music from Goa that can be shared legally and reproduced freely among all who appreciate music from Goa. Who would 'control' the collection? Nobody. It would be available to one and all via the Internet. Probably the various Goa-related sites would find it in their interest to reproduce this music, and make it downloadable -- after duly giving credit to the artists who created the music. (Rights remain with the artist, even under CopyLeft terms, though reproduction is made freely allowable.) What form of music would be welcome? Anythink that would interest the listener. Past, present, Western, Indian, classical, pop, vocals, instrumental, Konkani, English, Hindi, Portuguese, Italian (yes, Goans have sung in this language), trance... or whatever. Would I lose control over the music created? There are various forms of 'open' licences (different from the restrictive copyright forms of licensing, which seldom benefits the artist but is mostly used as a controlling tool by some corporation with financial clout) being debated on the Net. These apply to software, music, text, audio, creative works and a lot else. You are free to choose any form of license that suits you. If we could agree (might be difficult), a common form of licensing could be opted for. Would this work? Let me share an experience. I've already put out about 2000 of my photographs of Goa in the 'copyleft' world, and have not for a moment regretted it. Rather than just lying around on my hard-disk (and then getting lost in some hard-disk crash), these photographs have reached websites and desktops across the globe, and have surfaced at the most unexpected places. Non-commercial reproduction is free, though I appreciate being told where it is used. Such an approach earns attention to one's creative work. Not just that, sharing actually makes the world a better place. At a very selfish level, it sometimes also brings in potential for more work for a freelance journalist. Feedback often stimulates one's own creativity. In the rare eventuality of anything going wrong, one is at the very least assured that creating another 2000 photographs in a scenic place like Goa would not be an immensely difficult task. Musicians unsure about whether this would work at all could venture by putting out a limited quantity of their work (even if only one or two creations) and check the response and suitability. Above all, nothing ventured, nothing gained. In fact, I am also planning to put out an archive of much of my earlier writing in the 'CopyLeft' world -- freely reproduceable for non-commercial purposes, while retaining the rights. The main reason this has got delayed is the shortage of time to assemble all this work in a well-sorted manner. Would this not be counter-productive to the artistes? Contrary to intuitive-thinking, this would not depress the 'market' of Goan music, but on the contrary could actually extend and deepen it. Just because there are free/low-priced MP3s floating around on the Internet, it does not necessarily mean that people are going to be less willing to 'pay' to listen to Goan music in future. On the contrary, it could enhance awareness about musical talent in Goa, and deepen appreciation of the same. In much of my work, I have gained (even if seen purely in commercial terms) much much more from putting my work out in 'open/free content' format, rather than stashing it away on some obscure corner of my hard-disk. In the software world, the GNU/Linux Free Software/Open Source system works in other creative ways too. For instance, commercial firms are allowed to repackage and 'sell' (at a low cost, naturally, since anyone could copy this product) to users, charging for the cost they've incurred at packaging and marketing the material, plus overheads. What this means is that, on the one hand it would give small firms a chance to earn from this format of marketing, on the other it would also encourage musicians to gain a much wider audience, and fans to get access to MP3-based Goan music at a much lower cost. There is also the possibility of musicians putting out part of their work in 'open content' and the rest marketed through usual channels, thus allowing one to act as a stimuli for building interest in their form of music. It looks like a win-win-win game... if only we have enough initiatives to get started and build momentum. If you think this is an interesting idea, please let's take it forward. When I hear the Delhi-based M Menezes' soulful rendering of Hindi film hits on the piano, I wonder why no one has yet managed to do the same for the popular Goan music of past decades... when we have so much talent all around.... and guitar guilds or groups putting up much-appreciated regular performaces at regular intervals now. Frederick Noronha, Goa... on a rain August Sunday afternoon. PS: See the note below... ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ OPEN PUBLICATION LICENCES, A NEW LICENSE: A new public license -- the Open Publication License -- promises to bring the power of the open-source software movement to video, audio, and text while still preserving authors' rights to profit from the calluses of their creative hands. http://www.wired.com/news/news/politics/story/20276.html ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ ------------------------------------------------------- From shamnadbasheer at yahoo.co.in Tue Aug 20 14:00:00 2002 From: shamnadbasheer at yahoo.co.in (=?iso-8859-1?q?Shamnad=20Basheer?=) Date: Tue, 20 Aug 2002 09:30:00 +0100 (BST) Subject: [Commons-law] a blast from the south In-Reply-To: <20020817091541.7A67C114968@webmail.vsnl.com> Message-ID: <20020820083000.48607.qmail@web8005.mail.in.yahoo.com> hi lawrence, there were talks of hrithik trying something similar with his unique dance step in kaho na pyar he- though i'm not exactly sure what came of it. my take on this is that since the right of publicity anyway confers exclusivity to the persona/imagery of celebrities, there is no question of registering a copyright for the same (i'm sure the author of the piece meant "copyright" and not "patent")-claims of copyright would be ludicrous in situations such as this. regards-shamnad --- lawrenceliang at vsnl.net wrote: > > ha, where else but from tamil flmdon will you get as > fascinating a case as this, rajnikanth is > attempting to copyright the look that he has in Baba > > > mnore on this later in connection with rights of > publicity > > Lawrence > > > > > Copyright on style > > In a first of its kind, Tamil screen icon Rajnikanth > patents his style and looks for his forthcoming > film Baba, reports Sudha G Tilak > > > The Tamils christened him Style King nearly 30 years > ago. When Rajnikanth appeared on screen twirling a > cigarette before lighting it, flicking his uncombed > mane, the cine crazy crowd had found a new god. His > rakish looks and jeering dialogue deliveries have > endeared him to the 12 lakh fans of his. > > The 50 something Rajnikanth is setting new trends > with his forthcoming film Baba, his 150th flick > which will be released for diwali this year. Through > a public notice he has patented the film's posters, > drawings, costumes and interestingly, even his > looks, and the film's title. > > Baba will then be the first Indian film to be > copyrighted right from the leading man's mannerisms > to dialogues. > > Rajnikanth's 150th film is awaited eagerly by his > fans, as the star makes a screen appearance after a > prolonged absence from films for three years. So > even as the local media in Chennai speculates that > Rajnikanth has decided to opt for cinema over > politics, he surprised them, in his characteristic > manner of keeping everyone guessing, by bowing > before the mahurat shot. > > The very next day, after the launch, Rajnikanth > surprised the state by placing prominent public > notices in leading Tamil and English dailies. The > legal notice prohibits persons from imitating his > screen persona for the film or using the character > of Baba for commercial gain that includes models > imitating his look for the film to push their > product in advertisements or imitate his gag for TV > programmes. > > The notice also declared that no person or firm > could use Rajnikanth's photos, or sketches, > head-scarves, pendants for selling or branding > products. Tamil film historian Anandan told > tehelka.com, "Rajnikanth makes only well thought and > calculated moves. He is the first Indian actor to do > this." > > Rajnikanth's style dossier includes tossing a > cigarette into the air and deftly catching it with > his teeth; wicked pelvic thrusts in song sequences, > a speedy gait and a tossing hair. > > Since 1992 when things turned political for the > star, he began to introduce a new dress code and a > dialogue refrain in each film that made it easier > for audiences to identify the film. Also, for the > past 12 years, there has been a cold war between > Rajnikanth and All India Dravida Munnetra Kazhagam > (AIADMK) supremo J Jayalalithaa. In many of his > films in the past decade, Rajnikanth's "villain" has > been a powerful and rich female protagonist, who he > subjugates at the end. The demale figure could be a > thwarted lover, a mother-in-law, a mean aunt, a > female boss at work or just a wealthy and arrogant > woman. > > The films all had dialogues that meant more than > what they said. They hinted about his political > decisions and his own views on female supremacy. Of > course feminists ranted that he was anti-woman, but > considering that the thambi (younger brother, as a > young fan is called) forms the majority of his fan > club, it didn't create any flutter in Rajnikanth's > camp. > > Baba's director Suresh Krishna adds, "Baba will have > trademark punch lines for Rajnikanth that have been > so popular in the past. His fans will not be > displeased". > > Posters of Baba, released by Lotus International, a > company that will handle the publicity, shows > Rajnikanth in blue shirt and black jeans with a > short beard, his hair pushed back from his forehead > by a black and white scarf and an iron pendant > hanging from a black thread on his chest. > > The trademark poster of the film has Rajni in a > profile, clenching a bidi with his teeth and holding > his right hand up, his fingers imitating a classical > Indian classical dance mudra of the deer. > > It is not unusual for fans across Tamil Nadu to > imitate Rajnikanth's look for his forthcoming film > by painting hoardings, be it barber shops or the > ubiquitous wine shops, tea shops and petty shops. > The notice puts a halt to this. Says K Thangasamy, a > wine shop owner in Chennai: "I haven't heard of this > notice. I had made plans to have my shop hoarding > painted with Rajni looking like Baba". > > But knowing Rajnikanth's constituency comes from > this very strata, the star has taken care to state > in the notice that autorickshaw drivers, who are > Rajni fan club members, are permitted to paint his > face from Baba on their vehicles that could double > as promotion for the film. > > However the Chennai grapevine is abuzz with the > murmur that Rajnikanth could enter politics after > this film and hence is cautious that rival political > parties like the AIADMK does not caricature him in > their TV shows or through films or in their public > meetings. > > In fact, a fortnight before news broke of the star > emerging from his hibernation to films, his friend > and guide, MP and actor-journalist Cho Ramaswamy > told at a public rally that Rajnikanth should float > a third front as an alternative to the two Dravidian > parties. "It's not just my wish alone, but the wish > of many others that he enter politics", said > Ramaswamy. > > N Satyanarayana, president of Rajnikanth's Fan Club, > only says that the "fans want him to enter politics, > but what he thinks is unknown to us". > > With Manisha Koirala as Rajnikanth's consort in the > movie, it could well prove to a hit, which the Tamil > industry has not yet had apart from the moderate > success of Gemini. Meanwhile Kodambakkam insiders > insist that the film could just spring another > characteristic Rajni-style surprise. "The star could > say in the film that he wants to follow > spiritualism. Note the title, after Shiridi Baba", > says one producer director friend of Rajnikanth. One > can never tell what style Rajnikanth will spring > next. > _______________________________________________ > Commons-law mailing list > Commons-law at sarai.net > http://mail.sarai.net/mailman/listinfo/commons-law ________________________________________________________________________ Want to sell your car? advertise on Yahoo Autos Classifieds. It's Free!! visit http://in.autos.yahoo.com From lawrenceliang at vsnl.net Tue Aug 20 17:05:41 2002 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Tue, 20 Aug 2002 16:35:41 +0500 (IST) Subject: [Commons-law] the cricket team meets rajnikath over a cup of publicity rights Message-ID: <20020820113541.6C85B1FFF4@bom6.vsnl.net.in> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20020820/c4283d33/attachment.pl From saif42 at hotmail.com Tue Aug 20 16:43:01 2002 From: saif42 at hotmail.com (Dev Gangjee) Date: Tue, 20 Aug 2002 11:13:01 +0000 Subject: [Commons-law] a blast from the south Message-ID: Hi all I'm finishing a long overdue thesis and hence more dormant than I'd like to be on this list but this is too much fun to resist. The US has the best developed right to publicity but there's also been a recent spurt of UK passing off case law on the right to publicity but that's been more in the context of Trademark law. The film star/sports personality's name is like a 'brand' which has associations and consequently goodwill attatched to it and which the 'owner' should be in a position to control. I agree with Shamnad about the taxonomical mixup and the ludicrousness of using Copyright as a threatening stick. [While there is increasing critical attention on the historical evolution of IP into its distinct categories that seem so natural today, this just seems like poor reporting; but it does reflect the confusion and 'esoteric' tag which still surrounds IP today] Even if a Copyright gambit is being attempted, there's always the 'fair use' eception for the purposes of review or criticism or even parody. I doubt this'll ever develop into a case unless the political undercurrents force a showdown - but it would be fun to see how the courts respond. Warm regards Dev _________________________________________________________________ MSN Photos is the easiest way to share and print your photos: http://photos.msn.com/support/worldwide.aspx From zamrooda at sarai.net Wed Aug 21 17:28:21 2002 From: zamrooda at sarai.net (zamrooda) Date: Wed, 21 Aug 2002 17:28:21 +0530 Subject: [Commons-law] living in the city Message-ID: <200208211728.21501.zamrooda@sarai.net> Three months back I had shifted to my first house from the protective shell of a hostel room. The room is small not very fancy but a space I could call mine. After a relaxing Independence day weekend with my parents in Jaipur I returned and left for work as on any other day, unmindful of what the evening had in store for me. As I climbed the stairs leading to my room, I could not foresee what was in store for me. There was something wrong with the door.....maybe it is my imagination....no the lock was tampered......definately it was tampered. As I walked in things looked fine, no wait my cupboard was open. Did I leave it open in the morning. NO I was sure. I had latched it. The drawers were half shut,..... It was then that I was sure that something was wrong. I looked through the drawers and yes my jewelery was missing! With this realisation began my nightmare in the city of Delhi. I approached my "LANDLORD" for help. On the face of it he appeared to be very helpful. He claimed to know the SHO of the concerned police station and reassured me that he would call the police the first thing in the morning. He also assured me that he will take care of everything. There was no need for me to miss work the following day. I should continue with office as always. He will take care things. Back in my room looking for some comfort I called up a friend living a few blocks away. BY the time she could come over it was nine in the evening. She was furious that I had not informed the police. We dialed 100 and within the next ten minutes we could hear the patrol car outside the house. The police instead of coming to my house directly contacted the land lord. After a brief discussion with him they came to my room accompanied with the landlord. The first question I was asked was not from the police officials but the Landlord, "who called the police?" "how did you call them?" It was almost as though I had committed a crime calling the police. After this I was asked various questions by the police regarding the theft. All along the land lord was present in the room not allowing me to speak to the police. It was only when the police went downstairs to question the servants working in the building that I had an opportunity to speak to the officer on my own. In the meanwhile the local police station officers had also arrived (who were the friends of the land lord.) I had to repeat each and every detail that I had given to the patrol police. With each queation I was forced to live the theft again and again. The police insisted that I put pressure on my brain to figure out if I suspected any of my known people. My repeated insistence that none of known could be involved and that I suspected people from the building fell on deaf ears. My friend who had come to help,had to face all kind of questions regarding her identity and her relation to me. The police officials then suggested that we sit in the landlords house and conduct further formalities from there. As we were sitting in the landlords house, the duty officer arrived who turned out to be a good friend of the land lord. He was more worried that the land lord and his wife have been disturbed with their dinner than with the theft. I was once again made to narrate the entire story in spite of the fact that the earlier officer had taken in a written statement. The formality was barely completed as the duty officer was more bothered about the VIPs who were visiting his area at that point of time. The investigation over, a written complaint given to the officer, we were reassured that a copy of the FIR will be given to us the next day. The police left and as we were moving out the landlord got agitated with us for having lied to the police that he had not given the keys of the cupboard or that he had not repaired the lock of the door for which I was complaining ever since I had moved into the room. Things got out of hand and the police which was about to leave had to come back and intervene in the matter. On our way out we overheard the police saying that the landlord had not verified the tenant that is me...as I kept dilly dallying with the land lord about my continuation of residence in the house. This was news to me as I had no plans of moving out. BY know you must be wondering what am I trying to get to.......lets take a look at the situation point by point: 1. Why did the landlord not inform the police immediately? Is it because he was going to be exposed to the fact that he had not verified his tenant? Isn't the verification to his benefit? Yes if he is planning to pay tax for the rent....but if he is not as is the case here he is better of without the verification. 2. Is it not the moral responsibility of the land lord to help the tenant? 3. The police entered the premises of a single woman's house after dark without a female official: There are laws (Cr PC. Art.47,51 and 53) prohibiting the police from searching, examining and arresting a woman without the presence of a woman official. Should these same articles not apply when the police is going over for the investigation of a complain. 4. The police called me to the police station to collect my copy of the FIR. The most striking part of the station was the fact that at half past eight in the night there was no sign of a woman constable.......... 5. The police even after knowing that I had not been verified have taken no steps to do the same. The theft meant a lot to me. Yet what shocked me or made me uncomfortable in this two day ordeal was the level of "participation" of my land lord. Today it was a small theft what if something more serious happens tomorrow. What kind of rights do tenants have in this kind of scenario? ------------------------------------------------------- From jeebesh at sarai.net Thu Aug 22 17:33:42 2002 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Thu, 22 Aug 2002 17:33:42 +0530 Subject: [Commons-law] Comments on players versus ICC row Message-ID: <02082217334201.00878@pammi.sarai.kit> Some comments on the present confrontation between ICC and players. We have an interesting case developing. I think it is the first time that this kind of contract has been brought out to control the circulation of the image of the sportsperson. But, this tendency has been on for a long time. As spectators when we enter the sports arena by buying a ticket we are told not to carry any photographic equipment (well at times, no to eatables or water!). Only accredited photographers are allowed with their equipment. This kind of accreditation has been controlling the representation of the `spaces of government` for a very long time. (remember PIB!) The situation is simple. The people who control - the selection of players, venue and transmission circuits - have enforced total control over who will have access to visual representation. How many of us have seen images of `crowd` from within a crowd.! Now, since a huge and ugly corporate consortium (led by Mr.Murdoch) has pulled in 550 million dollars into the `relay` of images and sounds from the cricket field, they need total monopoly. The only obstacle is the cricketers with images that can be sold without intervention from the control boards. I think through the rhetoric of `des bhakti` `money first and nation last` (and other such like crap) the players will be made to sign the contract... But, a forgotten question can be posed amidst this controversy. What about the simple spectatorial right to be able to carry memorial/souvenir photographs back home? This also applies to cinema halls. The more a sport is popular, the more people invest into it, the more is the regulation on the circulation of images. Funny, these are all legally protected with no challenge whatsoever. Does the public domain argument have a chance here? best Jeebesh From anarrain at yahoo.co.in Fri Aug 23 11:31:10 2002 From: anarrain at yahoo.co.in (=?iso-8859-1?q?Arvind=20Narrain?=) Date: Fri, 23 Aug 2002 07:01:10 +0100 (BST) Subject: [Commons-law] Comments on players versus ICC row In-Reply-To: <02082217334201.00878@pammi.sarai.kit> Message-ID: <20020823060110.75873.qmail@web8102.in.yahoo.com> Hi jeebesh and all else, Just to introduce myself, Im arvind from the ALterntive Law Forum.. I was wonderintg if this particular issue can be framed within the larger context fo the critique of consumer capitalism itself.. My reference point is Noami Klien's No logo which analyses consumer culture by drawing the linkages to the production process and the marketing and selling of images such as Jordan to enhance the ominpresence of the Nike sign and by the way enhance Nike profiits.. THe key point is not whether spectators have a right to consume or whether the contractual terms should favour the crickteer or Rupert Murdoch as this entire debate is framed within the logic of global consumer capital..Taking up cudgels on behalf of the criketeer is in effect favouring the right of rahul dravid to contract with pepsi or coke.. To speak about the spectator's right to souveniers is to really say that can the spectator have the right to a say rahul dravid doll sold by Pepsi or Coke... Is there not a complete co-optation of all critical energies by global consumer capitalism in this context? For me personally , this debate would make sense if one draws out hte material linkages and critiques teh so far unseen , unspoken background which is consumer culture.. In this context , i want to refer to this book which is a dialogue between Judith Butler , Ernesto Laclau and Zizek(forget the name) .. Zizek makes the point about how the enonomic background which is global capitalism has been completely depoliticized. Our battles are all framed within this context which in not subject to critique. He asks for a move towards critiquing the framework itself... regards arvind ' --- Jeebesh Bagchi wrote: > Some comments on the present confrontation between > ICC and players. > > We have an interesting case developing. I think it > is the first time that > this kind of contract has been brought out to > control the circulation of the > image of the sportsperson. But, this tendency has > been on for a long time. > > As spectators when we enter the sports arena by > buying a ticket we are told > not to carry any photographic equipment (well at > times, no to eatables or > water!). Only accredited photographers are allowed > with their equipment. > This kind of accreditation has been controlling the > representation of the > `spaces of government` for a very long time. > (remember PIB!) > > The situation is simple. The people who control - > the selection of players, > venue and transmission circuits - have enforced > total control over who will > have access to visual representation. How many of us > have seen images of > `crowd` from within a crowd.! > > Now, since a huge and ugly corporate consortium (led > by Mr.Murdoch) has > pulled in 550 million dollars into the `relay` of > images and sounds from the > cricket field, they need total monopoly. The only > obstacle is the cricketers > with images that can be sold without intervention > from the control boards. I > think through the rhetoric of `des bhakti` `money > first and nation last` (and > other such like crap) the players will be made to > sign the contract... > > But, a forgotten question can be posed amidst this > controversy. What about > the simple spectatorial right to be able to carry > memorial/souvenir > photographs back home? This also applies to cinema > halls. The more a sport is > popular, the more people invest into it, the more is > the regulation on the > circulation of images. Funny, these are all legally > protected with no > challenge whatsoever. Does the public domain > argument have a chance here? > > best > Jeebesh > > _______________________________________________ > Commons-law mailing list > Commons-law at sarai.net > http://mail.sarai.net/mailman/listinfo/commons-law ________________________________________________________________________ Want to sell your car? advertise on Yahoo Autos Classifieds. It's Free!! visit http://in.autos.yahoo.com From jeebesh at sarai.net Fri Aug 23 14:01:56 2002 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Fri, 23 Aug 2002 14:01:56 +0530 Subject: [Commons-law] Comments on players versus ICC row In-Reply-To: <20020823060110.75873.qmail@web8102.in.yahoo.com> References: <20020823060110.75873.qmail@web8102.in.yahoo.com> Message-ID: <02082314015600.00851@pammi.sarai.kit> Hi Arvind, Thanks for your comments. A few clarification. The souveniers i was refering to were self generated images by spectators of any sporting event they participate in. If people are able to carry microphones and cameras around in the field, you will have a very different kind of image circulation. Remember when crowds go `out of control` (like Kolkata in world cup) we do not get any images or testimonies of what happened. We get a police version and a `control` board version. A massive `image` control exercise is mounted. Disruptions like these keeps the tension surfaced between the `spectacle` and the reality of `containment`. These tensions are for me very interesting. I am also not saying that Rahul Dravid's image with pepsi is more enduring than Dalmiya's or Malchom Speed's! But this specific context is intriguing. Here a sporting event and it's control board will endorse some products against all others. The only problem is the player's ability to contract on there own. Say, if a player says that he is against logos and he will not endorse any product without knowing about the brands or it's history. Does this stand has any chance in this new contractual regime. Here the utilisation of the players image by any brand chosen by `control` board is mandatory. Brands are part of global capitalism. But politics within brand selection tells us something about it's working. best Jeebesh On Friday 23 August 2002 11:31, Arvind Narrain wrote: > Hi jeebesh and all else, > Just to introduce myself, Im arvind from the > ALterntive Law Forum.. > I was wonderintg if this particular issue can be > framed within the larger context fo the critique of > consumer capitalism itself.. > My reference point is Noami Klien's No logo which > analyses consumer culture by drawing the linkages to > the production process and the marketing and selling > of images such as Jordan to enhance the ominpresence > of the Nike sign and by the way enhance Nike > profiits.. > THe key point is not whether spectators have a right > to consume or whether the contractual terms should > favour the crickteer or Rupert Murdoch as this entire > debate is framed within the logic of global consumer > capital..Taking up cudgels on behalf of the criketeer > is in effect favouring the right of rahul dravid to > contract with pepsi or coke.. To speak about the > spectator's right to souveniers is to really say that > can the spectator have the right to a say rahul dravid > doll sold by Pepsi or Coke... > Is there not a complete co-optation of all critical > energies by global consumer capitalism in this > context? > For me personally , this debate would make sense if > one draws out hte material linkages and critiques teh > so far unseen , unspoken background which is consumer > culture.. > In this context , i want to refer to this book which > is a dialogue between Judith Butler , Ernesto Laclau > and Zizek(forget the name) .. Zizek makes the point > about how the enonomic background which is global > capitalism has been completely depoliticized. Our > battles are all framed within this context which in > not subject to critique. He asks for a move towards > critiquing the framework itself... > regards > arvind > > > ' > > --- Jeebesh Bagchi wrote: > Some > comments on the present confrontation between > > > ICC and players. > > > > We have an interesting case developing. I think it > > is the first time that > > this kind of contract has been brought out to > > control the circulation of the > > image of the sportsperson. But, this tendency has > > been on for a long time. > > > > As spectators when we enter the sports arena by > > buying a ticket we are told > > not to carry any photographic equipment (well at > > times, no to eatables or > > water!). Only accredited photographers are allowed > > with their equipment. > > This kind of accreditation has been controlling the > > representation of the > > `spaces of government` for a very long time. > > (remember PIB!) > > > > The situation is simple. The people who control - > > the selection of players, > > venue and transmission circuits - have enforced > > total control over who will > > have access to visual representation. How many of us > > have seen images of > > `crowd` from within a crowd.! > > > > Now, since a huge and ugly corporate consortium (led > > by Mr.Murdoch) has > > pulled in 550 million dollars into the `relay` of > > images and sounds from the > > cricket field, they need total monopoly. The only > > obstacle is the cricketers > > with images that can be sold without intervention > > from the control boards. I > > think through the rhetoric of `des bhakti` `money > > first and nation last` (and > > other such like crap) the players will be made to > > sign the contract... > > > > But, a forgotten question can be posed amidst this > > controversy. What about > > the simple spectatorial right to be able to carry > > memorial/souvenir > > photographs back home? This also applies to cinema > > halls. The more a sport is > > popular, the more people invest into it, the more is > > the regulation on the > > circulation of images. Funny, these are all legally > > protected with no > > challenge whatsoever. Does the public domain > > argument have a chance here? > > > > best > > Jeebesh > > > > _______________________________________________ > > Commons-law mailing list > > Commons-law at sarai.net > > http://mail.sarai.net/mailman/listinfo/commons-law > > ________________________________________________________________________ > Want to sell your car? advertise on Yahoo Autos Classifieds. It's Free!! > visit http://in.autos.yahoo.com > _______________________________________________ > Commons-law mailing list > Commons-law at sarai.net > http://mail.sarai.net/mailman/listinfo/commons-law From ashish at cscsban.org Fri Aug 23 14:55:49 2002 From: ashish at cscsban.org (Ashish Rajadhyaksha) Date: Fri, 23 Aug 2002 14:25:49 +0500 Subject: [Commons-law] Rajnikant Message-ID: <3.0.6.32.20020823142549.00901400@cscsban.org> Hi Lawrence, This Rajnikant gesture business - when this debate began in your Sarai forum, I thought I would say something, but probably wouldn't have if we had not had that heated argument the other evening. That conversation did help me understand the issues, and also clarified for me what I felt about it. Thanks anyway for making that happen. As one clearly in support of the ideas of copyleft, I have been nevertheless concerned by occasional tendencies of too heavyhanded an approach to this area amongst friends. We're all familiar with the troubled history of the 'more PC-than-thou' moralism within all radical politics, and I feel I should definitely contest any tendency of cultural insensitivity, especially when it comes to an area I am familiar with - such as this Rajnikant instance. Let's start as an example with a slightly unfortunate tone that this debate has taken, the 'ludicrousness' question. If Shamnad, Dev Gangjee and you are right (and I'm sure you must be right on the law aspect), Rajnikant clearly does not have a legally valid case in asking for what he's asking. What concerns me however that all three of you seem to think that there is something funny, or even incredible, for him to even assert his rights in the way he is doing. Now I haven't seen Baba, and I don't therefore know the specific gesture that's at issue, but I would like to speak here of what I am calling his 'signature style' as a general thing. 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 (and I'd be surprised if Baba were an exception); this style has been developed over the years, is associated uniquely with him and has been marketed as such, in the cinema but also on television and in a large if chaotic culture industry. So even if he has no legal case, for many people there would certainly be nothing 'ludicrous' about his contention that he ought to be entitled to some authorship over his signature style. So maybe we could go easy on this 'ha, it could only happen in Tamil cinema' stuff and try, instead, to take his demand seriously and see where it gets us. (A question - I would be very surprised if such an individuated signature style of film and television stars does not have a history of rights involved: and I wonder if, say, the way Johnny Carson would be introduced on television with that famous Johnnnneeeeee cry has not in some way been protected: that may not be a very important instance, but it's the only one that came to mind.) I'm not mentioning this only to score some cheap debating points over political correctness. I'm sure you do not mean to sound contemptuous. However, I want to extrapolate from this, and ask the question of whether intellectual property that exists either in some marginal relationship to the globalised capitalist marketplace or entirely outside of it is only rendered occasionally visible in some practices and invisible in others in the way it is defined: whether there is a pattern to this. More particularly, I would like to raise the question over how intellectual property applies to urban popular culture, and whether the process of 'traditionalising' non-Western cultural rights does not sometimes blind us to equally oppressed, more contemporary, versions of cultural production. You mention 'social authorship'. This is clearly an important issue. At one level of this question, I had as you know done some work on the difficulties Indian legal history has had in bringing Article 19-1 into the domain of the cinema, unless in some ways it first constructs or even sometimes invents an 'author' within the terms comprehensible to it. So the 'author' of film seems to be by our law (even if contrary to every experience we would have in India), inevitably seen as the director. While this is certainly true for the independent cinema, to make, say, Suresh Krissna the 'author' of Baba in any intellectually relevant sense is clearly insufficient however much one may stretch one's imagination on authorial rights. It is clear that there is some presence of Rajnikant here, and it is also clear - as you correctly show - that there is some presence of the spectator here. Both categories, it follows, would therefore also have some stakes in the rights question as it now would apply here. What are the problems that follow? First of all, the very category of the cinematic public. One straight question to you - if the Sawant judgement in the cricket case made a (seemingly) pro-public judgement in its 'air waves are public property/public as against governmental' declaration, the question arises as to why the television audience was so central to his definition of this new category of the public, and in his attribution of such supreme rights to this public. If the televisual public owns the air waves, and can bring in Art. 19-1 to their demand for ICE, what - I ask you - has prevented the Indian legal system from attributing similar rights to its equally large cinematic public? (Relevant here would be S.V. Srinivas' work on the post-Independence tendency to characterise the cinematic public as an illegitimate public, as unruly, filthy, as requiring discipline, and the entire space of the movie theatre as needing reform. So much work on the 1970s state policy, or indeed the reform of the post-HAHK reform of the exhibition space to prepare it for a family audience, would show the history of the process of disenfranchisement and delegitimation of the filmic public.) A far more complicated question now follows. If both Rajnikant as well as his audience have, as we have suggested, some authorial presence in determining the 'author' of Baba in the social authorship sense, does it now follow that they have an antagonistic, competitive relationship over the RIGHTS that such a notion of 'author' might command? You suggest that the 'investment of social meaning into filmatic dialogues or style' rest 'with the public or the audience'. That is completely correct. But if your statement then suggests that we should divide up audience from star, or attribute the rights of Rajnikant's signature style to the audience as against to him, then I think you might be making a basic conceptual mistake, one that has clear legal implications. (I notice you don't say this in your mail, but I thought you were saying this in our conversation, and do apologise in case I've got you wrong). To put it briefly, I would argue that if the contract between Rajnikant and his audience - the site where the authorship rights are negotiated - is a narrative contract, it then follows that the moment a competitive or antagonistic relationship is even hinted at between the two, the entire narrative simply breaks down. You can see any recent Rajnikant film to see how rarely the narrative dares risk such a breakdown. A brief aside (because I don't know this area well): surely hundreds of commodities with very clear brand identities and rights surely would repeatedly spill into the area of 'social authorship' in this sense. If according to advertising claims, Taj Mahal tea goes alongside the spectatorial exclamation 'Wah Taj' or Nike requires its users to 'just do it' or Coke to make its audience to ask for 'Thanda', and if thousands of brands require some kind of spectatorial action to complete their chain of meaning, would you extend the spectatorial participation of your Sholay 'kitne aadmi' example to this area as well? (A second aside: for the idea of 'narrative contract' see Sudipto Kaviraj, 'The Imaginary Institution of India'). I now come to my main point. If you ARE interested in finding a legal language, in terms of social authorship, for disenfranchised spectatorial rights in the cinema you would now have to make a number of complicated arguments, many of which are by no means evident in the legal or indeed even in cultural debates on the issue at hand. These arguments would have to do with the very location that Rajnikant, the Tamil and in general the Indian mainstream cinema occupies as an economic entity: in its survival in the grey area that economists I believe call the decentralised sector, in the Indian state's historical refusal to admit it as an industry or to make institutional finance available leading, for example, to our colourful 'bhais from Dubai' playing so crucial a role in its economics. They would also have to extend into questions of narrative. Some years ago, I had written a long essay called 'The Four Looks and the Indian Cinema' and had characterised what I thought of as a unique innovation in narrativising spectatorial action into film by naming it the 'Rajnikant Fourth Look'. I had gone into some detail in trying to understand the narrative contract between Rajnikant and his audience, using the film Annamalai. In brief, I was suggesting that Rajnikant's signature style was an innovation upon the very field of cinematic narration, in the way it enabled the topology of the gaze (camera-to-reality, spectator-to-screen, characters looking at each other and finally, spectator is made aware of this entire topology) to be identified as a collective experience. I could send it to you, if you like, but certainly by the way I understood it, there is a certain sense of 'bestowing' involved: spectators bestow their grouped collective gaze on screen, screen (now representing their gaze from above, so to say) reciprocates and enables a narrative traffic: working out the guilty condition of the fourth look on a sudden, unexpected plane of cinematic action. Certainly if this transaction is ever threatened with interruption, it potentially collapses. Indeed, the risk of potential collapse is one of the vectors that keep it going. My final point is the area of politics. I think there are very good reasons for why the economic and the narrative aspects of a Rajnikant film intersect to push the film's logical domain into the area of politics. I say politics here as something that exists as contiguous to the space of the globalised transnational marketplace. As we look at the specific ways Rajnikant's narrative intersects with the political - and ways in which he has been unable to enter other, less decentralised, economic sectors. (Sorry to go on so, but I have an essay called 'The Bollywoodisation of the Indian Cinema' which also happens to discuss Rajnikant at some length - in this case, his sudden one-film popularity in Japan. I could send that to you as well). At issue here would be, I think, the way that a political or cultural mandating that is actually helped along when the symbolic location of that mandate is allowed certain rights - and I leave it to you then to tell me if this would be copyright or trademark or patent or what - actually in turn *enables* a pro-public sphere movement, rather than hinders it. I am suggesting that the tendency for democratic mandating, where you elect someone to represent you, for example, is often closely replicated by brand identification and that, sometimes, it is difficult to separate the one from the other. Nevertheless, they are opposed. The answer is not to bludgeon everything with a copyleft demand, but rather to ask what exists as a potentially democratic formulation and what does not. What, in legal authorship terms, would be Rajnikant's difficulty in asserting his rights would be one question. When would, say, Nike or Benetton lose their rights over *their* signatures when these signatures spilled over and became sufficiently widespread in social meaning so as to be uncontrollable by any one corporation if language has to continue at all is, I think, a related question. Both questions are questions of narrative and of politics. And nothing, I am sure you would agree, is more relevant an issue in terms of cultural IPR than this field of social authorship. See you Tuesday. Ashish Ashish Rajadhyaksha Senior Fellow Centre for the Study of Culture & Society 466 9th Cross Madhavan Park 1st Block Jayanagar Bangalore 560011 Telephone: 91-80-656-2986 Fax: 91-80-656-2991 email: ashish at cscsban.org website: www.cscsban.org From sudhir75 at hotmail.com Sat Aug 24 10:43:06 2002 From: sudhir75 at hotmail.com (sudhir krishnaswamy) Date: Sat, 24 Aug 2002 05:13:06 +0000 Subject: [Commons-law] the ip moot - TODAY AND TOMMOROW Message-ID: hi all for those of you in Delhi who are interested in watching a student moot court competition on some key issues surrounding open source licenses - here are the details Venue: Jacaranda Hall, India Habitat Centre, New Delhi. Date: 24th and 25th August 2002. Time: 9:30 AM- 5:00 PM (24th August 2002) 10:00 AM - 5:00 PM (25th August 2002) for more details go to www.ipmoot.org sudhir _________________________________________________________________ MSN Photos is the easiest way to share and print your photos: http://photos.msn.com/support/worldwide.aspx From jaynakothari at hotmail.com Sun Aug 25 23:53:31 2002 From: jaynakothari at hotmail.com (Jayna Kothari) Date: Sun, 25 Aug 2002 23:53:31 +0530 Subject: [Commons-law] Rajnikant References: <3.0.6.32.20020823142549.00901400@cscsban.org> Message-ID: Hi everyone, I'm Jayna Kothari from Lawyers Collective.....have been reading the past few mails on 'style' rights and authorship, ...just a few thoughts which came to me after reading Ashish's mail, - I'm not elaborating on the issue of social authorship, but specifically on the impact of such protection of such 'style ' rights. I don't really with the idea of say for example Rajnikant protecting his unique cigarette flicking stunts and actions, for several reasons: If Rajnikant's style/stunts/ image, or Hrithik Roshan's famous dance steps in KNPH are protected, then the implications would be that no one would be able to imitate them in any manner....what about the rights of the public/ their fans etc to use these steps/ gestures? If rajnikant decides to protect his unique gestures and this monopoly is granted, then what would this lead to? we could have Govinda, Shatrughan Sinha, Mithun, Shah Rukh Khanetc., all wanting to protect their own individual styles or gestures....the public would then be left with no freedom to copy, imitate or use the images of these public figures in any way. the fact that in the Rajnikant issue, it was actually mentined that he contemplated allowing the use of his posters on autos, points out very clearly that it is such kind of local, public (non commercial) domain where his image and personality is used the most, and allowing popular stars to protect their own 'reel personality' if we may call it so, and exploit it for purely economic reasons, would clearly take them completely out of the reach of the public. Jeremy Waldron has written a really interesting article on the rights of copiers...I could pass that on, if anyone's interested.... then again this would also throw up the questions of who was the real author of these stunts or dance steps? the choreographer / stunt director who actually invnted the step? the film director who perhaps conceptualised it? the Star who performed it? the cameraperson? the spectators? the public? it gets really complicated..... cheers, Jayna From lachlan at london.com Mon Aug 26 01:04:04 2002 From: lachlan at london.com (Lachlan Brown) Date: Sun, 25 Aug 2002 19:34:04 +0000 Subject: [Commons-law] A Review of Lessig's The Future of Ideas. Message-ID: <20020825193404.20930.qmail@iname.com> Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House, 2001. Reviewed by Arthur L. Morin Am I in trouble already? On the copyright page of the book it states that "Random House and colophon are registered trademarks of Random House, Inc." If registered trademarks are intellectual property protected by law, and only the owner of the property can give consent for or sell its use, and I haven't gotten consent from the owner nor have I given the owner consideration (money) for using the trademark in the heading of this review, am I in trouble already? If you laughed, or thought "can't see how," then you need to read this book. As soon as possible. This book in a sense is a sequel to Lessig's previous book, Code and Other Laws of Cyberspace (New York: Basic Books, 1999). Lessig, who previously has taught at the law schools of Harvard and the University of Chicago, is now at Stanford. He clerked at the Seventh Circuit Court of Appeals (for Richard Posner) and at the U.S. Supreme Court (for Antonin Scalia). He also writes for The Industry Standard (from the book jacket). The Future of Ideas answers three questions: First, what is the problem (and what is the relevance of the Internet); second, how serious is it; and third, what, for starters, to do about it. What is the problem? The problem is that the field within which innovation and creativity occur is being taken over by subdivisions -- the fairy spirits of creativity are being threatened by the bulldozers carving out property rights. The sentence is less a metaphor than one might initially think. It will take a bit of explaining to see why (this is one of the purposes of Lessig's book -- a purpose which, in my view, he accomplishes). As Lessig points out, creators and innovators draw from and upon previous experience.1 These individuals are from Lessig's point of view faced with a dilemma: how to protect their control of what they create or discover, while gaining access to the resources -- the work of others -- which are part of the raw material requisite for their own creativity. Lessig argues that the initial impetus in demarking property rights for intellectual property was to balance the need for access with the need to insure that there would be sufficient incentive for continued creativity and innovation. One might call this the middle ground between two extremes. One extreme could be called the 'free access' extreme -- where, for example, no copyright or patent rights exist. The other extreme could be called the 'no access' extreme -- where, for instance, anything in print (both the idea and its particular formulation) is protected from further use. At the 'free access' extreme, when the work of others is too freely available, then a potential innovator may be hesitant to put her work on paper or in some other tangible form. Consequently the level of innovation and creativity is less than is socially beneficial - because that potential innovator faces the possibility that the reward for the sweat of her labor will end up in the hands of another and will therefore be more reluctant to be creative and innovative. At the 'no access' extreme, when the works of creators or innovators become unavailable -- when the past is locked up (through copyright, patents, and 'closed' code, for example) -- those works that others would use as 'raw material' for creative or innovative purposes are out of reach; consequently, the level of innovation and creativity is less than is socially beneficial. While the path to either extreme from the middle is different, the end result is the same: less innovation and creativity than is socially desirable. To return to the original point: In the USA, the initial impetus behind recognizing and protecting intellectual property rights was to find a balance between these extremes. Initially, the rights to intellectual property were more limited in time and more narrowly circumscribed -- that is, the 'property' was more accessible to others -- than is the case today. The logic was that the limited protections helped keep the incentive to innovate in place while also allowing others access to the work under protection (the 'fair use' principle, for example), thus protecting the field within which creativity and innovation could flourish.2 Lessig warns us that what is happening is that the field of creativity is being taken out of play. The Internet is relevant to this problem in at least three ways. First, it is relevant because it is an example of how to structure a 'field' in which creativity and innovation can flourish. When it was first created, the system was structured (a) in such a way that no regard was given to the type of message being sent, therefore there was no privileging of message or messenger except with regard to who came first; and (b) in such a way that complexity was at the edges of the system. The system was an open road on which all kinds of 'vehicles' could travel (the "end-to-end" principle Lessig discusses) and at the 'ends' of which all kinds of services (applications) could be placed. 'Open' code allowed innovators to see how programs worked and gave them an opportunity to modify, or add to, the program/code. As long as the original, and the subsequent, code remained 'open,' two things happened: first, a community (wait, stop, think about what that word implies -- which goes beyond Lessig's analysis) of innovators could work on a common project; second, improvements were available to all. As the "physical layer" of the Internet becomes increasingly privatized (especially the radio spectrum), as the "code layer" becomes more closed, and as the "content layer" becomes less accessible, we lose the community (pause once more and ponder this) and the availability. To use the term adopted by Lessig: we lose the commons. Consequently, there will be less innovation and creativity than would be socially beneficial. A second way in which the Internet is relevant to this problem is that it did provide and could provide opportunities for creativity and innovativeness previously unknown. The world-wide reach of the Internet, digitalization, speed of transfer, the creation of software that will make translation easier (a point that adds to Lessig's analysis), open code and open access -- what possibilities lay before us? To argue that the best way to reach these possibilities is to move 'the market' to the Internet is to ignore the weaknesses and failures of the market. Rather, Lessig would like us to find a balance between market and state that would ensure a healthy public domain, a healthy commons, so that creativity and innovation will not shrivel. A third way in which the Internet is relevant to this problem is how it is both a part and emblematic of the change that is occurring. The Internet is just one of the 'commons' (in the sense that Lessig uses the word). Libraries, museums, archives (these are extrapolations of Lessig's argument), and an intellectual property policy that provides a balance between protecting the interest of the creator and 'fair use' are commons in this same sense -- or at least (in the case of intellectual property) are the basis for a commons. If we can see how the closing off of the Internet is not a good thing, then we can also see how the closing off of all intellectual commons bodes ill for creativity and innovation. Among these, the biggest battle to fight is what kind of Internet to have -- first, because it is still possible to create an 'open' Internet and second, because of its potential. The second question ("How serious is the problem?") should by now have a clear answer. Just in case the answer isn't clear: The problem is serious if, as Lessig suggests, a person whistling a tune in public is, from a legal point of view, violating copyright. The problem is serious if movie makers have to worry about the legal ramifications of placing specific objects (a Coke can) or specific locations (a particular courtyard) in a movie picture. The problem is serious if Lessig's warning plays out the way he fears: creativity being further hedged up by relatively few and powerful interests. The problem is serious if we cannot see that in the USA today rational behavior at the individual (firm) level does not necessarily lead to rational behavior at the systemic level. Indeed, as Lessig's argument makes clear, rational behavior at the individual level can lead to sub-optimal results at the systemic level. What to do? Chapter 14 of Lessig's book sets forth possible policy options. They are grouped in three categories: recommendations pertaining to the physical, code, and content layers. A sampling from each of these categories should give you a flavor for how Lessig wants us to move away from the 'closed access' extreme back toward the middle ground. One option from the first category is to leave "a significant part" of the radio spectrum "in the commons" (241). Lessig recognizes that "spectrum is not all the same" and advises that we "set off significant bands at each spectrum level, to assure that innovation for different uses of the spectrum would be possible" (242). Another option from the first category is to have government surrender much of the spectrum it is using, since government doesn't really need as much as it has. A third option from the first category is that we rethink the use of the spectrum. He notes: "Broadcast television, for example, is an extraordinary spectrum guzzler; in most contexts it would be best moved from the air to the wires" (243). Lessig also recommends that "the FCC should free up greater access to existing unlicensed bands," which would reduce government's need "to worry about other modes of access" or worry about what is done by "owners of other channels" (244). Openness and access can be achieved in another way as well: just as government has invested in highways and opened them up for a variety of users, so also we should think about government building the virtual highway to be used in a similar fashion. The city of Chicago, for example, has created an underground highway by funding 'dark fiber' -- fiber not dedicated to a specific use (245). One last policy option from the first category pertains to the 'last mile' problem. Perhaps that problem can be addressed by connecting "fiber to a wireless broadcasting station that then would beam Internet service to many users in the neighborhood . . . [but we would need to make sure] that bottlenecks not become opportunities for exercising market power" (245). Policy options found in the second category ("the code layer") include the recommendation that "government should encourage the development of open code" (247). Moving in this direction "risks none of the dangers of strategic behavior that closed code, or controlled networks, do" (247). Another recommendation in this second category is for government to "continue to ensure that no major player in the Internet space is able to architect the Internet space to empower its own strategic behavior" (247). One way that government has attempted to achieve this goal is by requiring unbundling of services. Lessig has a different approach: require Internet service providers to provide those services "consistent with the principle of end-to-end" (248). Related to this, "regulators should begin to evaluate changes to the network in terms of the neutrality of end-to-end. We should begin to think about the trade-offs between control and neutrality explicitly" (249). In the third category ("the content layer"), a policy option Lessig recommends is to require those who wish to protect their copyright to register their work with the government for a five-year period and allow renewal of that right "fifteen times" (251). Failure to register would place the work in "the public domain" (251). With regard to software, Lessig recommends that we "protect software for a term of five years, renewable once. But that protection would be granted only if the author submitted a copy of the source code to be held in escrow while the work was protected" (253). Upon the expiration of the protection, the software would become part of the public domain. Other policy options presented in the third category pertain to protection of innovation and music, and address such issues as "rebuilding the creative commons" (255), "limits on code" (256), "limits on contract" (257), and patents. The underlying moral of Lessig's book is this. We do not know what the future holds. It would be better to give ourselves more options/alternatives than to be locked in to particular ways of doing things, or be shut off from a new benefit, or be slowed in technological (or other forms of) progress because those benefitting from the status quo find it hard to let go of the old ways that -- surprise! -- benefit them. At the deepest level, Lessig is concerned not only with the liberty to do, but the liberty to become. This would be an appropriate place to end the review, but I would like to push beyond Lessig's analysis and raise a question related to The Future of Ideas: what kinds of incentives do innovators and creators want and need? Money, fame (glory, honor, praise - serious hubris), recognition (hubris lite), a realization that a new thing has come forth, knowledge or belief that benefits from the creation/invention/discovery will accrue to society, the strengthening of ties with others that comes from bringing to them something new, the joy of accomplishment, the freedom of the creative process, the 'aha' or joy of the creative process ... Would we be better off -- at both the social and individual level -- if in our Policy on Innovation we put less emphasis on the first three incentives and more emphasis on the others? The question ties back to a point made in Lessig's earlier book: individuals are influenced by norms. Laws, markets, and what Lessig calls architecture3 also influence incentives or motivation. We in the U.S. now live in a society where the getting of money and the control of property is positively normed (as long as it's not done by the government). The ideology of 'the free market' is positively normed. In the area of law and regulation, privatization and propertization are positively normed. Yes, there are normative values that point in other directions. But in this time and place money and market push very hard. The issue can be alternatively framed in this way: what should we teach our children to want and need? That, certainly, will have some impact on their liberty. ___________ The "Notes" section of this book, and of his earlier book Code and Other Laws of Cyberspace, are magnificent examples of this. Do not skip the "Notes" section of either book. Interested readers can find two reviews of Code on the RCCS. I don't believe Lessig intends to limit the meaning of "creativity and innovation" to music, art (painting and sculpture), poetry, literature, and invention (machines, software, etc.). Academic scholarship would also seem to fall within the realm of "creativity and innovation" as well. Lessig's definition of 'architecture' is expanded in his second book -- see the last paragraph of endnote 34 on page 276 for the expanded definition. _________________ Arthur L. Morin is an Assistant Professor in the Department of Political Science and Justice Studies at Fort Hays State University in Hays, Kansas. He has taught classes in public administration, American government, and current political issues, and has with another faculty member offered 'distance' education classes in political theory. He has published in both traditional and electronic media. [back to text] -- __________________________________________________________ Sign-up for your own FREE Personalized E-mail at Mail.com http://www.mail.com/?sr=signup From d.ritzmann at pgrad.unimelb.edu.au Tue Aug 27 08:21:35 2002 From: d.ritzmann at pgrad.unimelb.edu.au (d.ritzmann at pgrad.unimelb.edu.au) Date: Tue, 27 Aug 2002 12:51:35 +1000 Subject: [Commons-law] looking for Sudhir Krishnaswamy - personal message Message-ID: <200208270251.MAA07466@cassius.its.unimelb.edu.au> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20020827/3220b289/attachment.pl From srinivas at cscsban.org Tue Aug 27 11:38:28 2002 From: srinivas at cscsban.org (srinivas) Date: Tue, 27 Aug 2002 11:08:28 +0500 Subject: [Commons-law] Rajnikanth Message-ID: <1.5.4.32.20020827060828.0067ddb8@cscsban.org> ON RAJNIKANTH'S GESTURE Firstly the question of Rajnikanth as 'author'. Jayna asks: who is the real author of a Rajnikanth gesture? Why not the scriptwriter or the choreographer? It is well known that scripts are written for major stars like Rajnikanth and Chiranjeevi, ie with these stars in mind. In such a context it is valid to argue that the star is irreplaceable. It is also well known that the star script comes with 'punch lines' (repeated a numerous times during the film) and gestures. This has been going on for over ten years. The star, in such situations, is the author of the gesture (and 'dialogue') because he alone can 'produce' the gesture. Not only because it was created for him but also because there IS such a thing called style which acquires meaning precisely because it is identified with the star in question. After all, stardom is founded on the production of uniqueness and this is a process that takes years, even decades. If a gesture is identified with Rajnikanth; if the audience expect that each film will contain more such gestures; if competing stars like Kamal Haasan wont be caught dead doing something even remotely similar; why ISNT he the author of not only this or that gesture but also an entire style of acting itself? A Kamal's refusal to make a similar gesture may not be due to copyright reasons in any obvious sense. But because such an action is a clear indication that he is giving up claims to authorship (of an other style which may be presenting itself as an absence of 'excess'). Returning to the choreographers/scriptwriters--their claim to authorship lies in their ability to write for stars. They are a part of an institution, which is crucially dependent on the individuation and author-function (Foucault) of the star. If he is the producer of such a gesture (as only film stars can produce gestures, by making a sign mean something precisely because it is inextricably linked with his body and biography), why cant he prevent others from selling anything--be it a beedi or a biscuit or a ticket to a 'mimicry' show--using the gesture? When I greet Lawrence using the Baba sign, I am certainly referring to Rajnikanth. I am acknowledging the star's role in making this gesture available for circulation. Yes I am giving it a new meaning--in this case perhaps a sarcastic meaning--but only by naming the gesture as Rajnikanth's (or else the sarcasm simply doesnt work). Does the star's right over the gesture take away the rights of the audience? I agree with Ashish that we are in fact positing a non-existing antagonism. Let us look at fans associations. (I cant think of another group which foregrounds issues of spectatorial rights in such a direct was as fans associations). Two of the largest associations at present--Rajnikanth and Chiranjeevi's--are identified with stars who 'speak' to the fans in an interesting way. I would suggest that as far as these two stars are concerned, the gesture is in fact a mode of direct address to the spectator, who is constructed as a fan. When the gesture is made, the spectator has to recognize that it has a history--this gesture is different from the one in the previous film, this is something that the star is expected to do--otherwise the film fails. Moreover the star does it FOR the spectator--he is fulfilling MY expectation, my demand even. By fulfilling my expectation he recognizes my right to pleasure, my right to be counted. Indeed there is an interesting process at work here, a process that Ashish's work on silent cinema alerts us to. The fan-spectator (the spectator is constructed as a fan, whether or not actual viewers see themselves as fans or not) goes to the cinema hall to see the star on screen. 'He' [I am not sure if I can account for what might be at work when we conceive of this entity as a female] becomes a part of a gathering which has arrived at the cinema for a similar purpose. This collective gathers before the screen and the star appears and salutes them--literally and metaphorically. This is what is supposed to happen. But I would suggest one crucial inversion takes place: the star appears on screen BECAUSE the fan spectators have arrived and because they will him to appear. When the star gesticulates to me he mobilizes this history. The star is not the only instance when spectarorial rights are acknowledged but it is certainly an important one. In the case of Rajnikanth and Chiranjeevi the gesture is a crucial device for the working out of the star-spectator relationship. The star has a moral right over the gesture and if he intends to copyright or patent (or whatever) it, I am not going to be affected as a member of the social group that is a part of the meaning production involving stars. What is at stake is NOT my right to look and talk and try to be like him in my own contexts. When I try to look like him I am fully acknowledging his ownership of the look. In fact, establishing the star's right over the gesture is important for spectatorial rights. Demanding a legal status for the 'ownership' of the gesture is a way of acknowledging the existence the star-spectator relationship. S.V.Srinivas From jaynakothari at hotmail.com Tue Aug 27 22:53:21 2002 From: jaynakothari at hotmail.com (Jayna Kothari) Date: Tue, 27 Aug 2002 22:53:21 +0530 Subject: [Commons-law] waldron article, Message-ID: Dear Maya and Ishila, I only have the citation of Waldron's article, : Waldron, " From Authors to Copiers: Individual Rights and Social Values in Intellectual Property", 68 Chi.-Kent L.Rev. 841. cheers, Jayna -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20020827/3dd59325/attachment.html From rmazumdar2002 at yahoo.com Wed Aug 28 09:01:21 2002 From: rmazumdar2002 at yahoo.com (Ranjani Mazumdar) Date: Tue, 27 Aug 2002 20:31:21 -0700 (PDT) Subject: [Commons-law] Rajnikanth In-Reply-To: <1.5.4.32.20020827060828.0067ddb8@cscsban.org> Message-ID: <20020828033121.22654.qmail@web14807.mail.yahoo.com> Hi Everyone, I am not a legal person but would like to respond to the debate on Rajnikant�s gestures with four brief points. 1) Both Ashish and Srinivas are almost pushing the idea of �originality� in the construction of stardom. The star body is in fact clearly a coming together of many signs, much of which is usually borrowed. One can easily see Eastwood and Brando in Amitabh Bachchan, just as James Dean and Brando shape the iconograpohy of Amir Khan�s persona in Ghulam and Rangeela. What makes stardom interesting is precisely this ability to borrow both from the spectacular and the everyday. In the chain of circulation, it becomes difficult to mark originality. In Ghulam, the leather jacket and the swagger are drawn from well known rebel male images of Hollywood cinema. Amir Khan himself has said in an interview that just before he started acting in Rangeela he was in NY and noticed the way young black men moved in the city. Their clothing, swagger and defiant gestures marked them out as different in their identity. He felt the attitude in the street was a way of dealing with insecurity. In Rangeela we have seen Amir Khan as Munna parade gestures throughout the film. Mimicking both filmic representations and gestures borrowed from the street (Bombay and New York), Munna�s character became a complicated sign system. So where is the question of originality here? Do the young black men in New York have a right over their gestures? Can we control the movement of our everyday gestures? 2) We live in a world of performance where mimicking is an act of survival. Fans clearly mimic their favorite stars. But we will not know whose gestures Rajnikant may be borrowing. Why should his filmic gesture be granted special status when acting relies precisely on the ability to represent the lives of others? 3) Thirdly, I would like to ask if Srinivas and Ashish are not trying to construct an �authentic self� of the Rajnikant persona. Surely this would be a difficult claim to live up to. In the world of the copy why do we have to search for the original when it is already lost in the circulating chain of signs? 4) Finally let us not forget that the star is also an important marketing device. We have seen stars being used for their gestures to market specific products. Surely we are not going to get involved in defending the right of the gesture as a proprietary brand, so that it can circulate and be used for advertising. These are tricky issues that we need to seriously think about. Cheers Ranjani --------------------------------- Do You Yahoo!? Yahoo! Finance - Get real-time stock quotes -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20020827/f9cf6ee7/attachment.html From rai at nls.ac.in Wed Aug 28 12:19:01 2002 From: rai at nls.ac.in (rai at nls.ac.in) Date: Wed, 28 Aug 2002 12:19:01 +0530 (IST) Subject: [Commons-law] Rajnikanth In-Reply-To: <20020828033121.22654.qmail@web14807.mail.yahoo.com> References: <1.5.4.32.20020827060828.0067ddb8@cscsban.org> <20020828033121.22654.qmail@web14807.mail.yahoo.com> Message-ID: <3021.202.54.87.179.1030517341.squirrel@mail.nls.ac.in> Hi! I'm a final year student at the National Law School, Bangalore, and I've been following quite keenly the ongoing discussion about Rajnikanth's latest. Some of us here were also informally discussing the same issue. Would it be o.k. for me to put up the mails that people have been sending to this e-group? (with complete acknowledgement of authorship, of course ;-) Shailesh. From lawrenceliang99 at yahoo.com Wed Aug 28 12:58:46 2002 From: lawrenceliang99 at yahoo.com (Lawrence Liang) Date: Wed, 28 Aug 2002 00:28:46 -0700 (PDT) Subject: [Commons-law] Rajnikanth In-Reply-To: <3021.202.54.87.179.1030517341.squirrel@mail.nls.ac.in> Message-ID: <20020828072846.31242.qmail@web13607.mail.yahoo.com> absolutely....gp ahead , the list is run on open content basis so feel free , I am currently working on a more researched note in repy to ashish and SV, and will mail that to you too....in a lighter vein i wonder if rajni sought the prior persmission of famous black sheep before he used the name for his film........ __________________________________________________ Do You Yahoo!? Yahoo! Finance - Get real-time stock quotes http://finance.yahoo.com From srinivas at cscsban.org Wed Aug 28 15:27:47 2002 From: srinivas at cscsban.org (svsrinivas) Date: Wed, 28 Aug 2002 14:57:47 +0500 Subject: [Commons-law] Commons-law digest--Rajnikanth contd Message-ID: <1.5.4.32.20020828095747.006be2b0@cscsban.org> This is in part a response to Ranjani's mail. I would also like to use this occasion to further elaborate what I was trying say in my previous mail. I have no disagreement with Ranjani on stardom and originality. I will add that there is an argument that Rajnikanth's style is an imitation of Shratrughna Sinha's and a film (Asli Nakli? I am not too sure of the name) featuring both plays up this connection. Does 'originality' (in the absolute sense of the term) exist in the world? No. Is there such a thing as an authentic self? No. I will go along with Ranjani's point about circulation. The filmic object is transformed in the course of its long journey from the site of production to that of exhibition/reception/interpretation. Such a transformation is as old as the cinema itself and over the years, with the emergence of film 'industries' innumerable attempts have been made to prevent/contain/arrest this process. This leads me to two issues. Firstly, it is the realm of circulation and what 'Rajnikanth' (assembled by dozens, if not hundreds of technicians over the last 25 years) has become in circulation that makes me hold on to 'originality', authorship, signature and other such concepts which are deeply problematic. I am definitely going to be involved in defending Rajnikanth's right to sell products because I am likely to buy everything which is associated with the star (maybe not but I hope my point is clear). I buy the Padayappa matchbox only because it has Rajnikanth on it--I dont even 'need' a matchbox. Why would I defend 'branding'? Because branding exists and so long as it does, I see no reason why this or that star should not get involved in the business. Should branding, and advertising itself, disappear from the face of this earth? YES. This brings me to the second issue. Let me put it as provocatively as possible (and in capital letters too). THE RADICAL POSITION ON THE CINEMA IS UNTENABLE. Such a position leads to the demand to abolish cinema--not this film or that but the institution of cinema itself. Dont we know that it is anti-lower class/caste, anti-women, perverse/voyeuristic? Take for instance stardom. I can think of a dozen reasons for why the institution should not exist (particularly in Tamilnadu, Andhra Pradesh and Karnataka). That would be the radical line to take. But I am interested in is not a radical critique of cinema or stardom (or merchandising). I would like to understand the career of cinema as it circulates in different contexts, what is facilitated by it and how. Nothing radical can be expected here. But we may be witnessing aspirations that are broadly speaking 'democratic' in the fan-star relationship. The attempt to claim ownership over the gesture--no matter how dubious the claim may sound to some of us--is worthy of support. It is seeking not only to inaugurate a new line of star-merchandise but also to legitimise the spectator-star relationship. I have tried to argue that this is a relationship which does not posit the spectator and star as antagonists. Instead, through processes of nomination/representation (involving specific modes of address of which the gesture is a crucial component in Rajnikanth's case), the star is endowned with authority by the spectator. Madhava Prasad's point about the first generation south Indian stars ('Cine-Politics', Journal of the moving image, vol 1, no.1) is useful here: he speaks for me because he is not like me but is superior. To this I will add: he speaks for me because he speaks to me, recognizing my presence and my demands. Richard Dyer ("Stars") would argue that these demands are constructed by the institution itself. While recognizing this I dont want to abolish stardom (on a more pedantic note I will add that Dyer revised his thesis when he discovered gay readings of a female star he discussed at length in "Stars"--we return to the question of circulation). I think the Rajnikanth phenomenon tells us a great deal about the politics of representation and the illegitimacy of what Madhava Prasad calls 'cine-politics'. An opposition to Rajnikanth's attempt on the grounds that we are opposed to patent/copyright/trademarks regime is a radical position no doubt. But one that reinforces the illegitimacy of cinemaThis is in part a response to Ranjani's mail. I would also like to use this occasion to make a few clarifications. I have no disagreement with Ranjani on stardom and originality. I will add that there is an argument that Rajnikanth's style is an imitation of Shratrughna Sinha's and a film (Asli Nakli? I am not too sure of the name) featuring both plays up this connection. Does 'originality' (in the absolute sense of the term) exist in the world? No. Is there such a thing as an authentic self? No. I will go along with Ranjani's point about circulation. The filmic object is transformed in the course of its long journey from the site of production to that of exhibition/reception/interpretation. Such a transformation is as old as the cinema itself and over the years, with the emergence of film 'industries' innumerable attempts have been made to prevent/contain/arrest this process. This leads me to two issues. Firstly, it is the realm of circulation and what 'Rajnikanth' (assembled by dozens, if not hundreds of technicians over the last 25 years) has become in circulation that makes me hold on to 'originality', authorship, signature and other such concepts which are deeply problematic. I am definitely going to be involved in defending Rajnikanth's right to sell products because I am likely to buy everything which is associated with the star (maybe not but I hope my point is clear). I buy the Padayappa matchbox only because it has Rajnikanth on it--I dont even 'need' a matchbox. Why would I defend 'branding'? Because branding exists and so long as it does, I see no reason why this or that star should not get involved in the business. Should branding, and advertising itself, disappear from the face of this earth? YES. This brings me to the second issue. Let me put it as provocatively as possible (and in capital letters too). THE RADICAL POSITION ON THE CINEMA IS UNTENABLE. Such a position leads to the demand to abolish cinema--not this film or that but the institution of cinema itself. Dont we know that it is anti-lower class/caste, anti-women, perverse/voyeuristic? Take for instance stardom. I can think of a dozen reasons for why the institution should not exist (particularly in Tamilnadu, Andhra Pradesh and Karnataka). That would be the radical line to take. But I am interested in is not a radical critique of cinema or stardom (or merchandising). I would like to understand the career of cinema as it circulates in different contexts, what is facilitated by it and how. Nothing radical can be expected here. But we may be witnessing aspirations that are broadly speaking democratic in the fan-star relationship. The attempt to claim ownership over the gesture--no matter how dubious the claim--is something that is worthy of support. Because it is seeking not only to inaugurate a new era of star-merchandise but also to legitimise the spectator-star relationship. I have tried to argue that this is a relationship which does not posit the spectator and star as antoganists. Instead through processes of nomination/representation which involve specific modes of address of which the gesture is a crucial component in rajnikanth's case. In short, the star is endowned with authority by the spectator. Madhava Prasad's point about the first generation south Indian stars (journal of the moving image, vol 1, no.1) is useful here: he speaks for me because he is not like me but is superior. To this I will add: he speaks for me because he speaks to me, recognizing my presence and my demands. Richard Dyer ("Stars") would argue that these demands are constructed by the institution itself. While recognizing this I dont want to abolish stardom (on a more pedantic note I will add that Dyer revised his thesis when he discovered gay readings of a female star he discussed at length in "Stars"). I think the Rajnikanth phenomenon tells us a great deal about the politics of representation and the illegitimacy of 'cine-politics'. An opposition to Rajnikanth's attempt on the grounds that we are opposed to patent/copyright/trademarks regime is a radical position no doubt. But one that reinforces the illegitimacy of cinema. On a lighter note: Lawrence, Rajnikanth might not be required to take permission from a certain black sheep. If Ashish is correct, he is the black sheep. S.V.Srinivas . On a lighter note: Lawrence, Rajnikanth might not be required to take permission from a certain black sheep. If Ashish is correct, he is the black sheep. S.V.Srinivas From anarrain at yahoo.co.in Thu Aug 29 00:52:39 2002 From: anarrain at yahoo.co.in (=?iso-8859-1?q?Arvind=20Narrain?=) Date: Wed, 28 Aug 2002 20:22:39 +0100 (BST) Subject: [Commons-law] -Rajnikanth contd In-Reply-To: <1.5.4.32.20020828095747.006be2b0@cscsban.org> Message-ID: <20020828192239.42306.qmail@web8107.mail.in.yahoo.com> dEAR SV , Like lawrence i would like to give a more thought out response, but your email compels me to respond immeditely.. you say that u agree with the point that Ranjani and lawrnce have been making that the notion of authorship, authenticity and originality are problmatic.. I would imagine that you would stretch the problem u have with these concepts to its logical conclusion by problematizing the notion of authorship rights as well. But instead in a strange summersault, the notion of authors rights becomes unproblematic as rajnikanth has complete rights over a product which you agree he might not even be the sole author .. Taking from there you go on to fetishize the notion of authorship rights by bringing up a concept which is really the end of imagination- TINA (There is no alternative)()Therefore Rajnikant u are the sole author we bow to thee!! (looking to others to demonstrate what could be the alternative ways in which one could legally conceptualize social authorship...) As u go on to note Why would I defend 'branding'? Because branding > exists and so long as it > does, I see no reason why this or that star should > not get involved in the > business. Should branding, and advertising itself, > disappear from the face > of this earth? YES I am unable to take seriously your critique of branding or cousumer capitalism and i feel that is the frame within which you choose to operate.. Questions as to why on earth commodity fetishism is to be defended on ethical grounds is not clear to me.. I think though unstated there is a acceptance of consmereism not just pragmatically but even at a deeper ethical level. Does not the relationship between the star and his viewers also have a material basis? Does not a fan purchasing a Padayappa Matchbox(which i presume is sold by Rajnikanth association) pay for the label more than the match box ? and what about the people making the matchbox? These are not polemcial questions but questions which aim to shed some light on the global policial economy in which the idea of stardom operates. A parallel of the way consumer capitalism operates today can be seen in the case of NIke . The manufacturing is done by overworked and underpaid contract labour in THird World countries, star power of Jordan gets paid as much as the enire NIke Labour Force in Indonesia and NIke takes home enormous profits! This is the political economy of stardom.. Is not the parallel visible in India , wherein the poliics which you so vehemently defend would result in enriching corporations and Rajnikant and two hoots for the poor kids in Shivakasi who make the matches ! I think these are crucial questions and cant be brushed aside by just saying that is not a radical > critique of cinema or stardom (or merchandising). I > would like to understand > the career of cinema as it circulates in different > contexts, what is > facilitated by it and how. Nothing radical can be > expected here. But we may > be witnessing aspirations that are broadly speaking > 'democratic' in the > fan-star relationship. What is this democratic you are talking about if u refuse to enagage in the above questions which are really about how can one democracitize the relationships between ordinary people and stars (use Ip laws, taxation as levers of democratization ?) arvind > in my previous mail. > > This leads me to two issues. Firstly, it is the > realm of circulation and > what 'Rajnikanth' (assembled by dozens, if not > hundreds of technicians over > the last 25 years) has become in circulation that > makes me hold on to > 'originality', authorship, signature and other such > concepts which are > deeply problematic. I am definitely going to be > involved in defending > Rajnikanth's right to sell products because I am > likely to buy everything > which is associated with the star (maybe not but I > hope my point is clear). > I buy the Padayappa matchbox only because it has > Rajnikanth on it--I dont > even 'need' a matchbox. > > Why would I defend 'branding'? Because branding > exists and so long as it > does, I see no reason why this or that star should > not get involved in the > business. Should branding, and advertising itself, > disappear from the face > of this earth? YES. > > This brings me to the second issue. Let me put it as > provocatively as > possible (and in capital letters too). THE RADICAL > POSITION ON THE CINEMA IS > UNTENABLE. Such a position leads to the demand to > abolish cinema--not this > film or that but the institution of cinema itself. > Dont we know that it is > anti-lower class/caste, anti-women, > perverse/voyeuristic? Take for instance > stardom. I can think of a dozen reasons for why the > institution should not > exist (particularly in Tamilnadu, Andhra Pradesh and > Karnataka). That would > be the radical line to take. But I am interested in > is not a radical > critique of cinema or stardom (or merchandising). I > would like to understand > the career of cinema as it circulates in different > contexts, what is > facilitated by it and how. Nothing radical can be > expected here. But we may > be witnessing aspirations that are broadly speaking > 'democratic' in the > fan-star relationship. The attempt to claim > ownership over the gesture--no > matter how dubious the claim may sound to some of > us--is worthy of support. > It is seeking not only to inaugurate a new line of > star-merchandise but also > to legitimise the spectator-star relationship. I > have tried to argue that > this is a relationship which does not posit the > spectator and star as > antagonists. Instead, through processes of > nomination/representation > (involving specific modes of address of which the > gesture is a crucial > component in Rajnikanth's case), the star is > endowned with authority by the > spectator. Madhava Prasad's point about the first > generation south Indian > stars ('Cine-Politics', Journal of the moving image, > vol 1, no.1) is useful > here: he speaks for me because he is not like me but > is superior. To this I > will add: he speaks for me because he speaks to me, > recognizing my presence > and my demands. Richard Dyer ("Stars") would argue > that these demands are > constructed by the institution itself. While > recognizing this I dont want to > abolish stardom (on a more pedantic note I will add > that Dyer revised his > thesis when he discovered gay readings of a female > star he discussed at > length in "Stars"--we return to the question of > circulation). > > I think the Rajnikanth phenomenon tells us a great > deal about the politics > of representation and the illegitimacy of what > Madhava Prasad calls > 'cine-politics'. An opposition to Rajnikanth's > attempt on the grounds that > we are opposed to patent/copyright/trademarks regime > is a radical position > no doubt. But one that reinforces the illegitimacy > of cinemaThis is in part > a response to Ranjani's mail. I would also like to > use this occasion to make > a few clarifications. > > ===== ________________________________________________________________________ Want to sell your car? advertise on Yahoo Autos Classifieds. It's Free!! visit http://in.autos.yahoo.com From ashish at cscsban.org Thu Aug 29 12:23:37 2002 From: ashish at cscsban.org (Ashish Rajadhyaksha) Date: Thu, 29 Aug 2002 11:53:37 +0500 Subject: [Commons-law] -Rajnikanth contd In-Reply-To: <20020828192239.42306.qmail@web8107.mail.in.yahoo.com> References: <1.5.4.32.20020828095747.006be2b0@cscsban.org> Message-ID: <3.0.6.32.20020829115337.00909b60@cscsban.org> Hi all (on the Rajnikant debate) - Like all good debates, this one too is showing signs (for me, at least) of frustration - and one sure symptom of that is when we start accusing each other of occupying positions that our addressees might see as inaccurate or inadequate ('You said that!, No, I didn't!'). Another symptom, again of a good debate, is when we feel the need to periodically revisit and clarify basic concepts, and to agree on something before we can productively disagree. First, the frustration - I did not, repeat NOT, propose that Rajnikant should be ascribed copyright for his gesture. I did NOT claim that he was being original, and I don't think he is (at least not in the prevalent modernist sense of the word). I thought I had clearly accepted the legal view that his current claims are indefensible. I did however suggest that there was a more hazy issue of rights involved in this. I strongly feel that to repeatedly bring down the issue to the level of copyright is to trivialize the more complex and elusive cultural issues that are at stake. I feel therefore that, if we're going to get anywhere here - and if we're to explore the really exciting aspect of this conversation, which is to get film and cultural studies to talk to legal studies - we may have to temporarily, for the moment, keep copyright out of this discussion. We can always reintroduce it into the discussion once we feel that we collectively have a better grasp of the issues involved. Now, the issues on which I would seek clarity. First, authorship. Let us all agree that if there is a concept of author involved in Rajnikant's signature style, that concept would have to be an ensemble, involving a number of players. On the technical aspects alone, this would involve (Jayna is completely correct here) the director - and this would then also include the action and dance directors - and editor and sound composer and of course the star. Culturally this might include the forms the performance references (and Ranjani is right to mention the larger influences here). And this would, for sure, include the spectator. Let us call this entity the complex category of Author, or the 'Ensemble Author'. And let us now investigate this category further. What sort of author would such an Ensemble Author look like? How can we best understand what this ensemble is, in legal language? One immediate question: remembering that a critical component of this author is the spectator/public, does it follow that this Ensemble Author is automatically what Lawrence would call the Social Author? I think it is not immediately self-evident, but I think that if we can work towards expanding that ensemble to enable it to approximate to conditions of Social Authorship, that may be a good way to go. At any rate, I would like to hear views on this one point alone. We next move to the question of rights. What form of authorial rights would this Ensemble Author attract? Are there any at all? (Related questions - why should we even speak here of rights, and what is the need for bringing in a rights discourse into this matter?) I think the basic question is, where, specifically, do the rights of this Ensemble Author work? What are the areas of functioning where this category is rendered visible in terms of rights-talk? What kinds of actions require us to bring rights into this at all? I think they work, first and foremost, on the field of narrative. They are what we might call primarily narrative rights. Film Studies would, I think, claim that it has something definitely to offer on this issue alone. These rights relate to a kind of spectatorial entitlement, and extend into a range of conventions of framing, editing, sound mixing etc. Madhav's done some work on this, and my own argument has been that contrary to dominant theories of Hollywood cinema the spectatorial gaze is surrendered to diegetic use only under certain explicit conditions and certain clearly stated narrative guarantees. Thee and many other formulations are available that gesture towards spectatorial rights on the field of narrative. At this point, I would like once again to turn to legal issues and now ask: if I am indeed correct to say this, then how do such narrative rights translate into legal language? Would the fact that a great deal of legal cases (both the Tamas case with Lentin and Sabhyasachi Mukherjee as well as the Raj Kapoor Satyam Shivam Sundaram case were to do with spectators who felt 'offended' by something in the film) deal with spectatorship issues, throw more light on this area? Would, for example Paul Ricoeur's work (The Rule of Metaphor, and Time and Narrative) on what he called the combination of structural semantics and 'legislating rationality' help us understand this field better? Do narrative rights have any visibility in India law? Can we understand this field in terms of rights at all, in the conventional sense of the word? Next question - how do narrative rights impact other areas, outside of the filmgoing experience itself? An important issue involving Tamil cinema in particular, which I feel has simply not been brought into this debate as strongly as I think it should, is politics. We do of course know that there is a greater interest in bringing discourse theory into political science (most directly associated, I guess, with Kaviraj) which has something to say to this possible link. There is a very distinct effort on the part of Rajnikant to make the 'narrative contract' interpretable in a political arena. At any rate, let us propose that the second, significant, area where the Ensemble Author's rights (whatever they might be) become momentarily visible is the field of politics. At any rate, I would like debate on my two contentions that the complex definition of 'Author' is, A. not YET the Social Author (though he could be), and B. that IF this category of Author does accrue certain authorship rights, these rights are NOT copyright; they do not work on either the individual author or on concepts of originality, but these are rights that work most directly on the terrains of narrative and of politics. If they are glimpsed at all, it is in these categories. Next, and crucial, question: what existing traditions of authorship are available to us that might help us understand this Ensemble Author better than we do now? Clearly, the very difficulty we are having here has some symptomatic value. How can we clarify things legally? I want to recall another debate I was informally part of in Bombay, when a number of filmmakers, scriptwriters and others wanted to mount a constitutional challenge on the Indian Cinematograph Act, 1952, for its inability to account for this crucial phenomenon that so centrally characterises the Indian cinema. I think that the challenge to Section 5A (as I recall) of the Act, which interprets Article 19-1 into the cinema, is fundamentally flawed precisely because it does not acknowledge this category of the Ensemble Author. I feel therefore that if we can revisit, and rethink, the 1952 Act to now include this idea of the Ensemble Author then a great deal of the present confusion would be overcome. We may then continue to disagree (when was that ever a crime?), but we will at least have clarified what the issues of rights are in this. I suspect that this question will inevitably become a cultural rights question, and we would have to go some way before we find a visible way of addressing it. However, the traditional knowledges issue - in its emphasis on community or group rights - has shown us something of the nature of work that we may need to do, to define in the popular arts a field of authorship that incorporates narratively enshrined spectatorial rights. I do however think that this would be a very appropriate case for the commons law project to take on, and it would be a worthwhile challenge. In fact, I would even like to help put together what I would consider a model Cinematograph Act for India, in conversation with friends from ALF, for the Commons Law forum, for discussion purposes! My final hunch here - IF AT ALL we do reintroduce copyright, or any of the discredited aspects of authorship back into this debate, it may - just may - be a tactical move only to the extent of enabling us to shore up an otherwise more difficult argument, for temporary purposes. We may argue the point around authorship or around the political (Patwardhan's many legal cases seem to incorporate both: maybe that's the way to go). In other words, we may need to tactically agree to incorporating some subsidiary rights into our understanding of the author make a larger argument about the Indian cinema more visible. Ashish Ashish Rajadhyaksha Senior Fellow Centre for the Study of Culture & Society 466 9th Cross Madhavan Park 1st Block Jayanagar Bangalore 560011 Telephone: 91-80-656-2986 Fax: 91-80-656-2991 email: ashish at cscsban.org website: www.cscsban.org From lawrenceliang at vsnl.net Thu Aug 29 14:08:35 2002 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Thu, 29 Aug 2002 13:38:35 +0500 (IST) Subject: [Commons-law] Response to the Rajni debate Message-ID: <20020829083835.A9C26201CF@bom6.vsnl.net.in> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20020829/50fad648/attachment.pl From ashish at cscsban.org Thu Aug 29 15:06:58 2002 From: ashish at cscsban.org (Ashish Rajadhyaksha) Date: Thu, 29 Aug 2002 14:36:58 +0500 Subject: [Commons-law] Response to the Rajni debate In-Reply-To: <20020829083835.A9C26201CF@bom6.vsnl.net.in> Message-ID: <3.0.6.32.20020829143658.008fc4f0@cscsban.org> Dear everyone - Just a quick clarification - I wrote my long (frustrated) email BEFORE Lawrence sent his elaborate one: I would probably not have sent mine if I'd got his first. Thanks a ton, Lawrence; this is really immensely useful and I recognise that I would have to significantly change, modify or deepen my argument in response to yours. I've only just got your mail, but one quick question - when you say that a narrative contract is an 'imaginary one' which 'operates at the level of a symbolic fiction', I'd like to know more about what you may mean. A At 01:38 PM 8/29/02 +0500, you wrote: > >Hi All, > >one of the hazards of debating an issue htorugh a list of courtse is that by the time you respond to one issue there are generally ten others that have cropped up. This slightly long mail is a response to what we may call the first half of the debate, on the authorship, originality issues, more later on the legitimacy and film industry issue > >Lawrence > >========= > >Only that audience out there makes a star. It's up to them. You can't do anything about it. . . . Stars would all be Louis B. Mayer's cousins if you could make 'em up. > >-- Jack Nicholson > > >1. THE DEBATE THUS FAR > >Continuing the debate on Rajnikanth and Baba, from SV�s second mail I think we may have moved a little from the initial positions/ debate on protection of the sign into the larger questions of what this protection then means as far as for the legitimacy of the Indian film industry etc. In this note, I will try to respond to some of the issues on rights of celebrity as raised by Ashish�s mail. > >To begin with, a few clarifications on intent so we can go ahead with the debate without the messy business of having to prove our bona fides. And here I am sure that I can safely speak for Dev and Shamnad as well. None of us are high culture apologists and the intention was certainly not to sneer at either Rajnikanth or in any larger sense at the film industry. So why then do I think it is ludicrous that Rajnikanth should make a claim of having his Baba sign protected by intellectual property law? I think my incredulity has more to do with the politics of intellectually property rights and the manner in which the authorship argument is being pushed into every conceivable realm than with Rajnikanth. > >I completely share Ashish and SV�s concern about the problem of cinema and the legitimacy battle that it has had to fight for the past fifty years, but I strongly disagree with the conclusion that you come to which is that claiming authorship or any other IPR rights is the way to go. It is certainly not self evident to me that the denial of a particular kind of claim to the protection of intellectual property right takes us into a framework where we directly or indirectly cause what SV dramatically calls the abolition of cinema itself. I don�t think a discussion of Baba or Rajnikant can operate in a vacuum as an issue of the survival question of the film industry, it also integrates into the larger politics of the role of intellectual property in the globalised capitalist economy. In that sense we may actually be driven by similar concerns, but I don�t think I agree completely with the characterization of it being a first v. third world issue and it is crucial to recognize ! >the operation of national capital and the ways in which it works vis a vis other informal economies. So to paint Rajnikant as the struggling artists defending the rights of the industry may not be all that accurate, considering that he wants to prevent not Tom Cruise from imitating him but the plethora of local mimic artists. > >To further add, do I have a problem only with Rajnikant getting his image protected while Coke and Nike and our regular next door multi national corporations? Of course not, I object to them as well and extend the idea of social authorship to all commercial marks as well (more on this in a later mail I guess). But does that mean I set them in oppositional terms, or as Arvind says the TINA (there is no alternative) route. No, because I think to buy into the logic is to fail to contest what might be a larger malaise. > > I thought it would be useful for me to provide an overall sense of the area , right to publicity to highlight what some of my objections to the doctrine are. But before that to take on a few issues which have been brought up by Ashish and SV. > >Two points which I think are particularly interesting: >Ashish says that the �contract between Rajnikant and his audience - the site where the authorship rights are negotiated - is a narrative contract, it then follows that the moment a competitive or antagonistic relationship is even hinted at between the two, the entire narrative simply breaks down�. SV further supplements the point �I have tried to argue that this is a relationship which does not posit the spectator and star as antagonists. Instead, through processes of nomination/representation (involving specific modes of address of which the gesture is a crucial component in Rajnikant's case), the star is endowed with authority by the spectator�. I agree completely with you that the relationship between star and audience cannot be conceptualized in antagonistic terms. Where I disagree with Ashish and SV are the point at which they identify this breakdown of the contract. > >I would add that the contract of course is an imaginary one, or one which operates at the level of a symbolic fiction that sustains the very mythological character of the relationship between star and audience. For me it is very clear that it the attempts at converting this imaginary relation into an actual juridical relation with the control over certain signs and meanings given to the star that the contract breaks down. The relationship may well operate within the informal economy of signs but the collapse begins, not with the claims of the audience towards authorship but the restrictive act of rajni claiming rights which may or may not be sued agains certain forms of audience activity. > > >2. THE RIGHT OF PUBLICITY > >Clint Eastwood doesn't want the tabloid s 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). > >I think 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. It is of course important to note that the right to publicity is a common law right which accrues to the individual persona of the celebrity and that does not preclude any claim of protection over the work etc. from copyright or allied laws. The right to publicity is a right to certain distinguishing and identifying characteristics, features or behavior of a celebrity. These rights are assignable and tradable. This right of publicity has had a very close and contested relationship with different aspects of popular culture. It should also therefore be distinguished between the right to sell matchboxes or shampoos, though the latter is a subset, they are not necessarily the same. > >A few examples to illustrate my point: > >1. Since Ashish mentioned Johnny Carson, Carson has in the past 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). >2. 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) >3. Elvis impersonators and marketers of Elvis paraphernalia must reckon with the assignees of Presley's right of publicity. Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981) (enjoining a live stage production). For an interesting account of the growing and varied army of Elvis impersonators, see I AM ELVIS: A GUIDE TO ELVIS IMPERSONATORS (Marie Cahill ed., 1991). See below for a note on Rajnikant mimics. > >While there are a number of people on this list from the cultural studies background, there are also a number of law students etc. so at the risk of repeating an old tale, a few sentences on the politics of cultural consumption might have some use. The significant contribution of cultural studies was its attempt to articulate popular culture as a contested terrain in which individuals and groups (racial, caste, gender, class, sexuality etc.) struggle, albeit on unequal terms, to make and establish their own meanings and identities. Consumption of cultural commodities (movies, songs, fashions, television programs, etc.) were therefore neither uniformly received nor uncritically accepted. While there may have been "preferred meanings" generated and circulated by the culture industry, these meaning s were often recoded and often subverted in contextual circumstances. Needless to say there are significant constraints on this popular meaning-making and individuals and groups ha! >ve to function within the constraints of centrally produced and distributed commodities. > >I think there has been more than enough work done on the fact that popular culture remains what it long has been: a struggle for, and over, meaning. The question that we are interested in is how 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 etc 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 it becomes a part of the daily vocabulary of the pope or the audience. Thus it is not as if Rajnikanth does not want his sign to be used by his �fans� or audience but by obtaining or claiming rights against the sign, he has 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 Rajni to protect his sign is to prevent the various mimic artists making their money through Rajni mimicry or prevent other directors from including within their films parodic versions of the same sign. 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 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� I think 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. > >As SV notes interestingly in the work of Richard Dyer, 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 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�. > >3. HISTORICAL DEVELOPMENT OF THE RIGHT TO PUBLICITY > >In both Ashish and SV�s mails, there is am almost unquestioned acceptance of the naturalness of rajnikant�s claim for a protection over his sign or image. Denying the possibility of any claim to a natural right which is not also a product of certain historical processes , it is interesting to note the particular history of the right to publicity and the context in which it emerges and gets naturalized within the larger language of property rights itself. > >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 form the fact that the right of publicity is a new right for a new �wrong�. Large-scale commercial exploitation of famous persons goes back at least to the eighteenth century. It continued throughout the nineteenth 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 Moth and Freckle Cure. So when does the change start occurring: > >1. 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 centers, "every available building and public conveyance was plastered with some sort of commercial message," while "enterprising advertisers easily convinced rural inhabitants to have the same thing done to their roadside farm buildings." >2. Secondly 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. n140 In the late nineteenth century, however, the perfection of chromolithography n141 made possible a new kind of visual (i.e., image-based) advertising. >3. The increase in daily newspaper circulation from 2.6 million in 1870 to 8.4 million in 1890. >4. And 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, know defined as a person known for his well known ness > >Taking off form SV�s point that he has no problem with Rajni being a brand or him buying Rajni matchboxes. We may disagree on level of commoditization but to be to be honest, I don�t have such a deep problem with it either. The paradigm shift that I can clearly see now I the global context is the ability to use the images or the image rights that you have to act as censorship itself. Thus if Bill gates is used to sell t shirts go ahead, all I can say is that it wont be a very aesthetically appealing t shirt. But if I were to use a Bill gates look alike in a derogatory film about global capitalism, oh then we are n trouble because we are stepping on gate�s right rights to publicity. ( I am not exaggerating this claim, See for instance Allen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985)., where 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). > >To reiterate again, it is not as if I do not understand Ashish when he claims that the history of the Indian film industry has been one of the struggle for legitimacy. But is it realistic to assume the usual exploitation narratives when we speak of super celebrities? I completely agree with the need to create systems which protect the rights of performers just as any other industry but are superstars merely performers struggling to make ends meet? > >In Zacchini v. Scripps-Howard Broadcasting Co. Zacchini, was a strong man who made his living performing a "human cannonball" stunt at state fairs and other events. He sued a television news channel for broadcasting footage of the live stunt. The performer argued that providing the public with free viewing of his stunt diminished the economic value of his personal appearances. Recognizing the tangible economic value of the right of publicity (in this case, profit from a unique performance), the Supreme Court held that the Constitution did not grant the media a free license to broadcast such a unique performance without payment to the performer. The decision seems to be a fair enough use of the right of publicity, but the subsequent history of the concept results in a distortion of that right. > >We live in a time where Michael Jordan earns more for his Nike air ad, than all the Nike workers in Thailand put together in an entire year. Do abundantly wealthy movie and television stars attempting to exert dominion over the use, discussion, and parody of aspects of their "images" that are as much the creation of those they seek to sue as themselves, get the same rights as Zachini? > > >4. JUSTIFICATORY THEORIES OF THE RIGHT TO PUBLCITY > >The most common justifications for a right to publicity emerge in three categories. These are broadly : >1. The moral rights of a celebrity to reap the fruits of their labors (broadly labour theory) >2. Economic theories >3. Incentive theories > >The first is in most senses the most important theory and it is one which has been addressed at some length in this debate. Both Ranjani and Jayna have already asked the questions that are in my mind as well about the nature of authorship etc. and located the fact that authorship occurs at multiple sites. Ashish and SV have also elaborated this aspect very articulately, in terms of the cinematic relation between actor and audience to produce what might be the meaning of the text. What I then don�t see, is how you can then jump straight back into a natural rights theory framework and say that despite all this the actor is still the ultimate bearer of rights , meaning or ownership. > >SV for instance says that �The star, in such situations, is the author of the gesture (and >'dialogue') because he alone can 'produce' the gesture. Not only because it was created for him but also because there IS such a thing called style which acquires meaning precisely because it is identified with the star in question. After all, stardom is founded on the production of uniqueness and this is a process that takes years, even decades. If a gesture is identified with Rajnikanth; if the audience expect that each film will contain >more such gestures� > >The courts have taken a similar stand time and time again. Right-of-publicity plaintiffs are described by the courts as carefully "cultivating" their talents, slowly "building" their images, judiciously and patiently "nurturing" their publicity values -- as working long and hard to make themselves famous, popular, respected, beloved. "A celebrity must be considered to have invested his years of practice and competition in a public personality which eventually may reach marketable status. That identity, embodied in his name, likeness, statistics, and other personal characteristics, is the fruit of his labors and is a type of property." > >The analogy drawn for instance is between that of a carpenter who begins with a virtually worthless piece of wood. Through a combination of hard work, time, and skill, he converts it into a beautiful chair. He now has a thing of value where none existed before. The analogy then is that a celebrity begins as an unknown. He has no publicity value. Through the investment of many years of hard work, he makes his name and face marketable. Like the carpenter, he has created a valuable asset where none existed before. > >I would argue that the ability to commercially exploit an image or persona is always dependent on the secondary meaning that the image has already acquired through social processes of interpretation. It is only because Rahul Dravid means something that his image can be juxtaposed with a lubricant or a perfume. Castrol is therefore using what Dravid "means" to us already in order to establish a desired meaning for its oil. It is only because Dravid has an "image", which has significance in one sign system, that he can be used to create a new system of significance relating to lubricants. But how is it that a star's face becomes a "sign"? How are these meanings generated and what part does star "labor" play in the signifying process? > >Madow further 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 in! >flected, 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 "labor" (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 states that Madonna, whose entire persona, is an ironic reworking of the Hollywood myth of "the blonde." How much does she owe to Marlene Dietrich, Marilyn Monroe? To the directors (Hawks, Huston, Mankiewicz, Wilder, etc.) who made the films in which Monroe appeared? To Andy Warhol and the Kennedy brothers, who helped elevate her to icon status? Assuming then that the celebrity does infuse herself onto commercial process and cultivates the right to exploit that image, how pray does she retain the right even after her death. Or to rebuke the incentive theory of production, how do you motivate Walt Disney, who has been dead for sixty years to be more creative? > >TO BE CONTINUED > >I am sorry if this mail has gone on and one, but would like to tackle the issues at some length and will add more in my next mail on certain political economy questions, and the attempt to address this issue of the legitimacy crisis and why it may not be facilitated within the contours of the IPR debate. Suffice it to say for now, that I also agree with Ashish that the issue is very much about my concern with a certain politics of what we call the public domain and this is certainly not an attempt to bludgeon the issue with a copyleft demand. I seriously believe that the bestowing of certain rights like the right to publicity ay even in the short run provide some kinds of legitimacy but in the longer run is counter productive for a public domain argument. > >_______________________________________________ >Commons-law mailing list >Commons-law at sarai.net >http://mail.sarai.net/mailman/listinfo/commons-law > Ashish Rajadhyaksha Senior Fellow Centre for the Study of Culture & Society 466 9th Cross Madhavan Park 1st Block Jayanagar Bangalore 560011 Telephone: 91-80-656-2986 Fax: 91-80-656-2991 email: ashish at cscsban.org website: www.cscsban.org From srinivas at cscsban.org Thu Aug 29 15:37:53 2002 From: srinivas at cscsban.org (svsrinivas) Date: Thu, 29 Aug 2002 15:07:53 +0500 Subject: [Commons-law] Re: Commons-law digest, Vol 1 #42 - 5 msgs Message-ID: <1.5.4.32.20020829100753.006e0a38@cscsban.org> Arvind, Let me take a slight detour to address what I think may be one of the more important issues this discussion is trying to grapple with. Assuming that all of us have strong views about need for social transformation and further assuming that no political party actually comes even close to representing our ideas of a just society, is it incorrect for us to vote for X or Y party? Surely, it is not surprising that some of us may even be voting for Congress. There are good reasons for why we should not vote at all--there are clear cut positions on this matter. There are radical parties which refuse to participate in elections. If I hold on to such a position there is no way you can convince me that BSP is not the BJP is not the CPM. Moreover, if I were to argue that voting was a way of supporting the very system that we wish to transform, there can be no question of engaging with electoral politics--except to say: I told you they were all the same and look what they have done now. As someone who is opposed to the IPR regime I demand that we make distinctions. Rajnikanth is not the same as Coke. Let us not invoke the invisible scriptwriter or the underpaid worker to say both are exploiters. Of course they are. But that is too damned simple (and I would object to this manner of laying out the problem on aesthetic grounds too). The discussion forum would have no issues to discuss and all we will be doing is listing the evils of the IPR regime. I am not at all convinced that the rights of the star are in conflict with those of the spectator. As far as I can tell this is the only good reason why Rajnikanth should not be supported. Rajnikanth's 'authorship' is a consequence of NOMINATION by the spectator. He is a star only because he is endowed with meaning and this meaning is a consequence of a specific star-spectator relationship that is at work in a Rajnikanth film. I would call this an important site of the 'social authorship' of the gesture. As for the Padayappa matchbox, it is made by a manufacturer who doesnt seem to have any connection with Rajnikanth. There is already large market for star related products and stars have no control over it. I think that this is one of the clearest indications of why a Rajnikanth is not a Coke. The anxiety might be that he will become one. There is no way I can give an assurance to the contrary but I will only point to the huge gap there currently exists between the two and demand that we recognize it in a way that shapes our responses to the issues at hand. If we object to Rajnikanth's attempt, it has to be in ways that will not bundle the star with TNCs. Does Rajnikanth have a right to say that his image/name should not be used to sell products? When we say Rajnikanth is a star only because he is accepted as such and add that he therefore does not have a right to prevent anyone selling products using his name, I see a definite problem. If we were to say we support his right to prevent others from selling products but not his own attempt to sell products, I will go along with is view but I dont quite know how to formulate it in legal terms. But such a view is not implicit in the objections raised to R's attempt or my defense of it. Arvind says: "why on earth commodity fetishism is to be defended on ethical grounds is not clear to me. I think though unstated there is a acceptance of consumerism not just pragmatically but even at a deeper ethical level." I think I am trying to make a political defense of the obsession with cinema (yes, let us call it that). If we prefer to call this obsession a manifestation of 'consumerism' and only that, I am afraid the concept of social authorship cannot apply to the cinema. If we are in any case only consuming images, where does the question of interpretation come in? Ironically, this is the surest way of making Rajnikanth the owner of the gesture--well, we may have to solve the problem of which scriptwriter came up with the idea. S.V.SRINIVAS CENTRE FOR THE STUDY OF CULTRE AND SOCIETY 466, 9th Cross, Jayanagar Ist Block, Bangalore 560011 Phone: 080-6562986 Fax: 080-6562991 email: srinivas at cscsban.org From shamnadbasheer at yahoo.co.in Thu Aug 29 19:17:47 2002 From: shamnadbasheer at yahoo.co.in (=?iso-8859-1?q?Shamnad=20Basheer?=) Date: Thu, 29 Aug 2002 14:47:47 +0100 (BST) Subject: [Commons-law] Response to the Rajni debate In-Reply-To: <20020829083835.A9C26201CF@bom6.vsnl.net.in> Message-ID: <20020829134747.54455.qmail@web8006.mail.in.yahoo.com> a very well thought out response, lawrence. when you conceived of this e-forum, little did i know that within a mere week or so of its existence, it would generate enough material for a Phd thesis. regards-shamnad --- lawrenceliang at vsnl.net wrote: > > Hi All, > > one of the hazards of debating an issue htorugh a > list of courtse is that by the time you respond to > one issue there are generally ten others that have > cropped up. This slightly long mail is a response to > what we may call the first half of the debate, on > the authorship, originality issues, more later on > the legitimacy and film industry issue > > Lawrence > > ========= > ________________________________________________________________________ Want to sell your car? advertise on Yahoo Autos Classifieds. It's Free!! visit http://in.autos.yahoo.com From rmazumdar at vsnl.net Thu Aug 29 22:36:59 2002 From: rmazumdar at vsnl.net (Ranjani Mazumdar) Date: Thu, 29 Aug 2002 22:36:59 +0530 Subject: [Commons-law] Re: Commons-law digest, Vol 1 #42 - 5 msgs In-Reply-To: <1.5.4.32.20020829100753.006e0a38@cscsban.org> Message-ID: <5.0.2.1.2.20020829222940.00ab6c48@mail.vsnl.net> An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20020829/4d5313b0/attachment.html