How corporations profit from black teens' viral content
December 5, 2015 11:18 AM Subscribe
The originator of "on fleek" was a 16-year-old girl from South Chicago. "Cool hunting" by advertisers has long captured and resold content from black youth in urban communities. But the rise of social media have made the process significantly faster, and the capitalization on trends far richer. Yet the youth who create dance styles and new language are rarely compensated for their cultural work. And the shape of copyright law is partly to blame.
The Fader's article cites K.J. Greene's article “Lady Sings the Blues: Intellectual Property at the Intersection of Race and Gender,” from The Journal of Gender, Social Policy & The Law:
The Fader's article cites K.J. Greene's article “Lady Sings the Blues: Intellectual Property at the Intersection of Race and Gender,” from The Journal of Gender, Social Policy & The Law:
“Black artists had no input in [copyright law], and examination reveals that it is in some respects incompatible with Black cultural production in music,” writes Greene, arguing that multiple copyright standards were specifically structured to preclude black blues artists, especially women, from claiming ownership. “The idea/expression dichotomy of copyright law prohibits copyright protection for raw ideas,” Greene wrote. “I contend that this standard provided less protection to innovative black composers, whose work was imitated so wildly it became ‘the idea.’”Today, this lack of protection for original and transformative work amounts to YouTube takedowns for copyright violations, among other ways in which artists are stripped of protection for their work. The Fader continues:
Part of the reason the originators of viral content are stripped from their labor is because they don’t technically own their production. Twitter does, Vine does, Snapchat does, and the list goes on. Intangible things like slang and styles of dance are not considered valuable, except when they’re produced by large entities willing and able to invest in trademarking them.
"Even some of the internet community's most valued educational resources are antagonistic to Black culture."
One senior wikipedian, a member of ArbCom, said a few years back the reason that there are so few Black Americans editing wikipedia is that Black American's don't volunteer for charity work. Unsurprisingly none of the other wikipedians pulled him up on that.
Black Culture is ripped off by corporations everyday, and sites like wikipedia are a prime vehicle for stripping economic rights for mega corporations.
http://www.bbc.co.uk/news/magazine-22617001
http://www.modernghana.com/news/653443/1/using-the-intellectual-property-system-to-harness-.html
posted by lilburne at 11:54 AM on December 5, 2015 [6 favorites]
One senior wikipedian, a member of ArbCom, said a few years back the reason that there are so few Black Americans editing wikipedia is that Black American's don't volunteer for charity work. Unsurprisingly none of the other wikipedians pulled him up on that.
Black Culture is ripped off by corporations everyday, and sites like wikipedia are a prime vehicle for stripping economic rights for mega corporations.
http://www.bbc.co.uk/news/magazine-22617001
http://www.modernghana.com/news/653443/1/using-the-intellectual-property-system-to-harness-.html
posted by lilburne at 11:54 AM on December 5, 2015 [6 favorites]
but when I explained to one of the elder drummers that Wikimedia's license does not bar commercial re-use of Wikimedia content, he was deeply disturbed and did not want to contribute to the site.
Freesound.org, Soundcloud, and the (curated) Free Music Archive are pretty good about supporting creative commons, so they might be better support for building an archive. It’d certainly be a shame if the tunes were lost.
posted by Going To Maine at 11:55 AM on December 5, 2015 [10 favorites]
Freesound.org, Soundcloud, and the (curated) Free Music Archive are pretty good about supporting creative commons, so they might be better support for building an archive. It’d certainly be a shame if the tunes were lost.
posted by Going To Maine at 11:55 AM on December 5, 2015 [10 favorites]
Interesting idea, Going To Maine. I think there's a lot of visual documentation of dancing to do, so maybe the sound-oriented sites less so, but posting videos to archive.org and then linking to them from Wikipedia might make a lot of sense for maintaining a reasonable license.
posted by gusandrews at 12:25 PM on December 5, 2015 [2 favorites]
posted by gusandrews at 12:25 PM on December 5, 2015 [2 favorites]
This article seems confused to me. Copyright law is too weak because it wouldn't let Newman protect a two-word phrase she came up with, and it's also too strong because it makes it difficult for dancers to republish music without getting the rights? It's not easy to think of a solution to one of those problems that doesn't make the other problem worse.
posted by A Thousand Baited Hooks at 12:37 PM on December 5, 2015 [12 favorites]
posted by A Thousand Baited Hooks at 12:37 PM on December 5, 2015 [12 favorites]
The original article starts from two ignorant and misguided premises. Corporations using viral phrases and memes, which can't be copyrighted, has nothing to do with race. How many memes have individuals AND corporations played with, exploited, and extended since Mosaic first launched, and what was the racial make-up of their originators? Both are unanswerable and dopey questions. This could have been an interesting look at how a creative young person created a meme and shaped the culture, and how corporations are always looking to co-opt and take advantage of what's bubbling up, and instead the author used it to grind an axe (one which does need sharpening) on an utterly unsuitable stone.
posted by twsf at 12:53 PM on December 5, 2015 [7 favorites]
posted by twsf at 12:53 PM on December 5, 2015 [7 favorites]
K J Greene didn't seem to include Aretha Franklin's insistence on ownership of her work in her research.
posted by Ideefixe at 12:54 PM on December 5, 2015 [1 favorite]
posted by Ideefixe at 12:54 PM on December 5, 2015 [1 favorite]
Not an IP guy but couldn't she have trademarked it ? "Eyebrows on Fleek", some kind of beauty product, I don't know
posted by mrbigmuscles at 1:09 PM on December 5, 2015
posted by mrbigmuscles at 1:09 PM on December 5, 2015
My understanding is that she can get a copyright on on fleek before it becomes big. But she needs to enforce it equally everywhere else she will not be able to claim it. But eforcing it equally will prevent the spreading of the phrase and hence it will never become big enough to be of any consequence.
posted by asra at 1:12 PM on December 5, 2015 [3 favorites]
posted by asra at 1:12 PM on December 5, 2015 [3 favorites]
Doesn't the very nature of a meme make where it came from irrelevant? Things get popular for no discernable reason. The only important thing is that people are reusing and restating it.
posted by Bee'sWing at 1:18 PM on December 5, 2015 [4 favorites]
posted by Bee'sWing at 1:18 PM on December 5, 2015 [4 favorites]
Corporations using viral phrases and memes, which can't be copyrighted, has nothing to do with race.
I mean certainly this is not a racially specific phenomenon. But what this is really about is where that intersects with another phenomenon which is *way* older than the Internet - which is the borrowing of black slang and black cultural forms by white people to look cool. A phenomenon from which my very use of the word "cool" originates if I'm not mistaken.
posted by atoxyl at 1:43 PM on December 5, 2015 [14 favorites]
I mean certainly this is not a racially specific phenomenon. But what this is really about is where that intersects with another phenomenon which is *way* older than the Internet - which is the borrowing of black slang and black cultural forms by white people to look cool. A phenomenon from which my very use of the word "cool" originates if I'm not mistaken.
posted by atoxyl at 1:43 PM on December 5, 2015 [14 favorites]
Trademark != copyright. Trademark requires conspicuous use in a commerce setting and also needs to be regularly & vigorously defended, two prerequisites that make it prohibitive for most individuals and particularly teenagers. Trump's "You're Fired" is an example of a trademarked phrase.
Copyright, on the other hand, is not burdened by those prerequisites, but conversely has a higher threshold of complexity, hence the expression vs idea bit. If you could copyright ideas, every drum pattern in existence would be copywritten. Likewise guitar riffs, etc. Elemental bits of art which in and of themselves are not substantive enough to warrant the considerable protections of copyright, and which would materially harm the creative world if given them.
The easy thing to do if you want to protect your memeworthy creation is to make a video of it and copyright it, which is technically automatic but way easier to enforce if you register it with the LoC, something you can do online. Basically treat it as a short film. That will give some measure of protection.
posted by grumpybear69 at 1:44 PM on December 5, 2015 [3 favorites]
Copyright, on the other hand, is not burdened by those prerequisites, but conversely has a higher threshold of complexity, hence the expression vs idea bit. If you could copyright ideas, every drum pattern in existence would be copywritten. Likewise guitar riffs, etc. Elemental bits of art which in and of themselves are not substantive enough to warrant the considerable protections of copyright, and which would materially harm the creative world if given them.
The easy thing to do if you want to protect your memeworthy creation is to make a video of it and copyright it, which is technically automatic but way easier to enforce if you register it with the LoC, something you can do online. Basically treat it as a short film. That will give some measure of protection.
posted by grumpybear69 at 1:44 PM on December 5, 2015 [3 favorites]
I think a better way would just to be honest about where things start.
In recent years, due to Black Twitter, Tumblr, and Black Podcasts, I've been a lot closer to the start-point of memes and it has been fucking depressing to watch how quickly the actual starts of the ideas and memes are completely lost, and how readily white young people are contacted about them instead of young people of color. It's also been depressing to watch Hip Hop go from that-thing-that-is-destroying-the-young (because BLACK PEOPLE) to something talented young white people do, and watching how blatantly white entertainers steal from black culture without even acknowledging where it comes from, while entertainers of color doing the same thing are insulted and ignored.
The reason why entertainers and creators of color don't get credit is because we elevate people who do the same things but are white - and the reason we do that is racism. Lets try to name it consistently first; white people who want to help, step up.
posted by Deoridhe at 3:07 PM on December 5, 2015 [15 favorites]
In recent years, due to Black Twitter, Tumblr, and Black Podcasts, I've been a lot closer to the start-point of memes and it has been fucking depressing to watch how quickly the actual starts of the ideas and memes are completely lost, and how readily white young people are contacted about them instead of young people of color. It's also been depressing to watch Hip Hop go from that-thing-that-is-destroying-the-young (because BLACK PEOPLE) to something talented young white people do, and watching how blatantly white entertainers steal from black culture without even acknowledging where it comes from, while entertainers of color doing the same thing are insulted and ignored.
The reason why entertainers and creators of color don't get credit is because we elevate people who do the same things but are white - and the reason we do that is racism. Lets try to name it consistently first; white people who want to help, step up.
posted by Deoridhe at 3:07 PM on December 5, 2015 [15 favorites]
Yeah this is one of those things where the real solution is not to change copyright law (which I'm not sure the article was actually suggesting specifically) but to change racism. Which should be easy, right everybody?
posted by atoxyl at 4:28 PM on December 5, 2015
posted by atoxyl at 4:28 PM on December 5, 2015
eforcing it equally will prevent the spreading of the phrase and hence it will never become big enough to be of any consequence.
This is the funny thing about intellectual property in the public domain-- on one hand, the originator can't make money off of it based on personal rights, but if it were proprietary or copyrighted it would be worthless because no one would use those properties.
posted by deanc at 10:49 PM on December 5, 2015 [1 favorite]
This is the funny thing about intellectual property in the public domain-- on one hand, the originator can't make money off of it based on personal rights, but if it were proprietary or copyrighted it would be worthless because no one would use those properties.
posted by deanc at 10:49 PM on December 5, 2015 [1 favorite]
Regarding Wikimedia's alleged "antagonism", there have been efforts to make documentation projects for mostly oral cultures which can then be used as sources. This isn't some aggressive stance against someone being black or any type of cultural transmission.
What would the alternative be? If you have suggestions, we'd like to know.
posted by koavf at 6:56 AM on December 6, 2015 [2 favorites]
What would the alternative be? If you have suggestions, we'd like to know.
posted by koavf at 6:56 AM on December 6, 2015 [2 favorites]
This isn't some aggressive stance against someone being black or any type of cultural transmission.
What would the alternative be? If you have suggestions, we'd like to know.
posted by koavf at 6:56 AM on December 6 [+] [!]
My impression of Wikipedia/the Wikimedia Foundation is that it's an institution that really wants to be decent and smarter than it is, but that really doesn't know exactly how, and is unfortunately stuck with the problem of wrangling large numbers of the sort of intensely focused crank who is way better at gumming up other peoples' initiatives than at actually accomplishing anything themselves — and I say this as an intensely focused crank who is way better at gumming up other peoples' initiatives than at actually accomplishing anything myself.
So anyway, these are the things that come to mind off the top of my head:
What would the alternative be? If you have suggestions, we'd like to know.
posted by koavf at 6:56 AM on December 6 [+] [!]
My impression of Wikipedia/the Wikimedia Foundation is that it's an institution that really wants to be decent and smarter than it is, but that really doesn't know exactly how, and is unfortunately stuck with the problem of wrangling large numbers of the sort of intensely focused crank who is way better at gumming up other peoples' initiatives than at actually accomplishing anything themselves — and I say this as an intensely focused crank who is way better at gumming up other peoples' initiatives than at actually accomplishing anything myself.
So anyway, these are the things that come to mind off the top of my head:
- Approach cultural creators who have good reason to keep their stuff off of wikipedia/out of licenses that allow for commercial reuse, listen to their arguments, and take their advice.
- Be prepared to prioritize their needs over the wikipedia project's ideas about proper licensing — acknowledge that the same licenses don't have the same real-world effect when used by different people from different contexts, and be prepared to make exceptions to the licensing rules. If I'm a BSD developer with a sweet day job doing tech consulting, I rather like it when a big company like Apple reuses my work. If I'm not from a position of privilege, and if my community has been for centuries strip-mined for profitable cultural trends, but never actually seen any of those profits, I have very good reason to not want my work under a license that allows for commerical reuse.
- Adjust overall evidentiary standards to better account for other types of evidence (evidence from oral traditions, etc.) Possibly consider hiring academics (anthropologists, historians of information, library scientists, and so forth) to help with devising the new standards. I don't just say this because I know anthropologists and historians of information who'd like a sweet gig with Wikipedia but uh if you're looking for an anthropologist I can totes hook you up with one.
- Ban or demote wikipedians who have idiosyncratic and exclusionary standards for what counts as evidence.
- Understand that media and platforms tend to shape the content of those media and platforms in incredibly subtle ways, and that when platforms are designed without the conscious intent to counteract our ongoing history of white supremacy, those platforms will tend to in certain ways recapitulate the white supremacist views of the societies around them. In early 21st century America, It doesn't take an "aggressive stance" to result in exclusionary practices toward Black people; all it takes is a passive, uncritical stance.
Oh and finally:
- Abandon the stance that Wikipedia can be an unbiased, neutral, complete compendium of all human knowledge. Market Wikipedia as one source of information among many, be open and honest about its weaknesses, direct Wikipedia visitors toward other projects when necessary, and (ideally) provide financial support and technical advice for people setting up good projects that the Wikimedia Foundation would like to do, but that the Wikimedia Foundation is structurally or constiutionally incapable of doing.
The big irony about Wikimedia's license in this case is it turns out to be pro-commercial because one of the biggest venues for their content is organizations which resell Wikimedia content in order to provide it to places where internet connectivity is poor -- like Africa.
I'm not even kidding. Here's a Wikimedia discussion page where contributors hash out why non-commercial CC licenses are not allowed on Wikimedia content.
posted by gusandrews at 8:13 PM on December 8, 2015 [1 favorite]
I'm not even kidding. Here's a Wikimedia discussion page where contributors hash out why non-commercial CC licenses are not allowed on Wikimedia content.
posted by gusandrews at 8:13 PM on December 8, 2015 [1 favorite]
I'm only belatedly getting around to actually reading it, but that main article is really interesting. Thank you for posting it.
posted by LobsterMitten at 3:52 PM on December 10, 2015
posted by LobsterMitten at 3:52 PM on December 10, 2015
@You Can't Tip a Buick: Your point about cranks is well-taken. Unfortunately, it's seen as obscure or weird to want to work on free culture and education without being paid. Sad but true. And venues like Wikipedia also attract some share of those on the nerd/shut-in spectrum and some of those are inevitably going to be Flat Earthers or Truthers or somesuch. As far as I'm concerned, the only solution for that is just more eyes on the projects.
Who? How? There is a lot of outreach to individuals and institutions: there is even a wiki explicitly for Outreach. Now that venue is hardly flawless but I think there has been a large push for reaching out to everyone regardless of language, location, ability, etc. to try to convince them that they all have something to add. It's fine and well to say to listen to their arguments and take their advice but some of that advice will be contradictory to one another or to the very mission of Wikimedia. One of the backbones of that is that the content is all free: anyone can use it for any purpose. Creating non-free educational materials is a fine enough goal but one inherently at odds with what the Wikimedia Foundation does.
Granted. Content creators have certain rights which are enshrined in law and which are decent to protect. But spreading your work using free licenses doesn't stop you from also profiting off of that work as well. If someone is selling books and optical media containing Wikimedia content, then so can you. As you are probably familiar simply from your example about code, once you mix content of different (and incompatible) licenses it becomes very difficult to "untangle" that content. Right now, the best solution as far as I can see is fair use for full copyrighted material (which itself has a fairly high standard) and external linking for non-commercially licensed content. Projects such as Wikilivres.ru can complement Wikimedia materials but not be integrated directly into them.
Something like that is happening now with recording mostly oral traditions but the problem is one of verifiability. The solution here would be for credible publishers, educational institutions, non-profits, etc. to act as content publishers with fairly flexible standards for this material which can then be quoted or reused wholesale. As you pointed out above, projects like this can draw cranks and so if self-published or fringe publications are allowed, then the floodgates are open to all kinds of wingnuttery.
This seems like it contradicts what you wrote before. Do you have an example of this problem coming up in the past?
This is doubtlessly true in myriad ways. The medium is the message and the ways in which we express ideas cannot be divorced from the ideas themselves. This is an extremely difficult problem—in a sense even intractable. While your larger point discusses white supremacism (surely an insidious and widespread problem), it also applies to issues related to linguistic minorities, accessibility to those who are disabled, etc. I what kind of data there are about Wikimedia being inaccessible to blacks in particular but from my vantage point, I think that they have tried very hard to be welcoming to everyone who has good faith. There have been constant attempts to court women, for instance. I don't know how productive they are but I think they are sincere. Your point is well-taken and basically ongoing: if you want to provide the world's knowledge to the world, you will have to keep on actively pursuing inclusion of everyone.
I don't know the extent to which this is the case anyway. In the English Wikipedia, there is a subtle but vital distinction between truth and verifiability, for instance and there are guidelines regarding fringe points of view. These are pretty explicit acknowledgements about the boundaries of an encyclopedia.
Agreed. Do you know of good projects that are referrals for certain topics? I definitely see users in relevant WikiProjects referring others to learn about "x" in your local library and there has been a big push to include authority control data on the bottom of hundreds of thousands of articles in the past couple of years.
@gusandrews: But what could we do differently? There are no legal or practical instruments for making a license that says "this content is non-commercial if you are black or you live in the global South/Third World but it's commercial acceptable to charge for it if you are white" or whatever kinds of caveats we would like to add to Creative Commons (CC) licenses. I don't think that CC is flawless but I am not sure how that issue could be resolved in principle. Do you have suggestions?
As an aside, I'll PM both of you since this thread will probably become archived soon. Thanks a lot for your interest—I'm excited to have your feedback about how these projects can be stronger.
posted by koavf at 8:25 PM on December 21, 2015
Approach cultural creators who have good reason to keep their stuff off of wikipedia/out of licenses that allow for commercial reuse, listen to their arguments, and take their advice.
Who? How? There is a lot of outreach to individuals and institutions: there is even a wiki explicitly for Outreach. Now that venue is hardly flawless but I think there has been a large push for reaching out to everyone regardless of language, location, ability, etc. to try to convince them that they all have something to add. It's fine and well to say to listen to their arguments and take their advice but some of that advice will be contradictory to one another or to the very mission of Wikimedia. One of the backbones of that is that the content is all free: anyone can use it for any purpose. Creating non-free educational materials is a fine enough goal but one inherently at odds with what the Wikimedia Foundation does.
...acknowledge that the same licenses don't have the same real-world effect when used by different people from different contexts, and be prepared to make exceptions to the licensing rules... I [may] have very good reason to not want my work under a license that allows for [commercial] reuse.
Granted. Content creators have certain rights which are enshrined in law and which are decent to protect. But spreading your work using free licenses doesn't stop you from also profiting off of that work as well. If someone is selling books and optical media containing Wikimedia content, then so can you. As you are probably familiar simply from your example about code, once you mix content of different (and incompatible) licenses it becomes very difficult to "untangle" that content. Right now, the best solution as far as I can see is fair use for full copyrighted material (which itself has a fairly high standard) and external linking for non-commercially licensed content. Projects such as Wikilivres.ru can complement Wikimedia materials but not be integrated directly into them.
Adjust overall evidentiary standards to better account for other types of evidence...
Something like that is happening now with recording mostly oral traditions but the problem is one of verifiability. The solution here would be for credible publishers, educational institutions, non-profits, etc. to act as content publishers with fairly flexible standards for this material which can then be quoted or reused wholesale. As you pointed out above, projects like this can draw cranks and so if self-published or fringe publications are allowed, then the floodgates are open to all kinds of wingnuttery.
Ban or demote wikipedians who have idiosyncratic and exclusionary standards for what counts as evidence.
This seems like it contradicts what you wrote before. Do you have an example of this problem coming up in the past?
Understand that media and platforms tend to shape the content of those media and platforms in incredibly subtle ways...
This is doubtlessly true in myriad ways. The medium is the message and the ways in which we express ideas cannot be divorced from the ideas themselves. This is an extremely difficult problem—in a sense even intractable. While your larger point discusses white supremacism (surely an insidious and widespread problem), it also applies to issues related to linguistic minorities, accessibility to those who are disabled, etc. I what kind of data there are about Wikimedia being inaccessible to blacks in particular but from my vantage point, I think that they have tried very hard to be welcoming to everyone who has good faith. There have been constant attempts to court women, for instance. I don't know how productive they are but I think they are sincere. Your point is well-taken and basically ongoing: if you want to provide the world's knowledge to the world, you will have to keep on actively pursuing inclusion of everyone.
Abandon the stance that Wikipedia can be an unbiased, neutral, complete compendium of all human knowledge.
I don't know the extent to which this is the case anyway. In the English Wikipedia, there is a subtle but vital distinction between truth and verifiability, for instance and there are guidelines regarding fringe points of view. These are pretty explicit acknowledgements about the boundaries of an encyclopedia.
...direct Wikipedia visitors toward other projects when necessary
Agreed. Do you know of good projects that are referrals for certain topics? I definitely see users in relevant WikiProjects referring others to learn about "x" in your local library and there has been a big push to include authority control data on the bottom of hundreds of thousands of articles in the past couple of years.
@gusandrews: But what could we do differently? There are no legal or practical instruments for making a license that says "this content is non-commercial if you are black or you live in the global South/Third World but it's commercial acceptable to charge for it if you are white" or whatever kinds of caveats we would like to add to Creative Commons (CC) licenses. I don't think that CC is flawless but I am not sure how that issue could be resolved in principle. Do you have suggestions?
As an aside, I'll PM both of you since this thread will probably become archived soon. Thanks a lot for your interest—I'm excited to have your feedback about how these projects can be stronger.
posted by koavf at 8:25 PM on December 21, 2015
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Even some of the internet community's most valued educational resources are antagonistic to Black culture.
posted by gusandrews at 11:37 AM on December 5, 2015 [15 favorites]