Scary monsters: hybrids, mashups, and other illegitimate children.

Author:Tushnet, Rebecca
Position:Creativity and the Law

She didn't really make it. She made it but she shouldn't have. She made it but look what she made it about. She made it but she isn't really an artist, and it isn't really art. She made it but it's derivative. She made it but it's infringing. She made it but it violates the DMCA. She made it but she's a thief and a pirate. She made it BUT .... (1)

History has many themes. One of them is that women should be quiet. (2)

[S]ometimes a scream is better than a thesis. (3)


Reproduction means two things: In copyright, we generally use the term to mean duplication. But sexual reproduction is not duplication. It is the creation of something new from something old. And it's perhaps this double meaning that often makes reproduction seem uncanny, whether because of its exactness or because of its divergences from the original. Human creativity, like human reproduction, always makes new out of old in ways that copyright law has not fully recognized. The genre of vidding, a type of remix made mostly by women, demonstrates how creativity can be disruptive, and how that disruptiveness is often tied to ideas about sex and gender. The most frightening of our modern creations--the Frankenstein's monsters that seem most appropriative and uncanny in light of old copyright doctrine--are good indicators of what our next generation of creativity may look like, especially if creators' diversity in gender, race, and economic background is taken into account.


Mary Wollstonecraft Shelley spawned a monster. Frankenstein: or, The Modern Prometheus (1818) introduced Dr. Frankenstein as well as his creation, who shares his name. Frankenstein's monster is put together out of parts of other people, given new, independent life by men through science. (5) Dr. Frankenstein is the creator/repurposer in the narrative, but Mary Shelley is the puppetmaster behind him. (6) Frankenstein is still timely two centuries later; anxieties about reproduction, who gets to control it, and whether appropriate reproduction can consist of cutting and pasting what's gone before are central both to this key early science fiction text and to current debates over fair use, especially with respect to so-called "user-generated content."

The connection between copying and horror has been noted before. Michael Newman, for example, discusses the "uncanny" appropriation art of Richard Prince, who re-photographed mainstream ads. To Newman, Prince's works "have the quality of deja vu, of repetition, which renders them strange, like the cadaver brought back to life in a horror story." (7) Note the implication that the source was dead before being revived. The intervention of the artist brought it back to life, but that is not unqualifiedly a good thing. It raises the issue of whether dead, commodified things should stay dead. Reproduction is uncanny because it creates life where there was none, and because of its double meaning: reproduction results in an entity that is the same/not the same as the original/its mother.

Today, a largely female community of artists creates in similar fashion to Dr. Frankenstein and Richard Prince, though we tend to call the overall genre "remix" or "mashup." Vidders make vids: reedited footage from television shows and movies, set to music that directs viewers' attention and guides them through the revisioned images. This practice, growing out of media fandom, can trace its genealogy starting in the early 1970s with slideshows carefully coordinated with music. (8) A vid, Francesca Coppa has written, is an argument made through quotation and narrative. (9) This type of creativity foregrounds its constructedness, its debts to earlier works, with editing ("cutting") taking the place of the stitches used to suture the limbs of Frankenstein's monster. "Whatever their explicit themes and narratives, [vids] represent a queer form of reproduction that mates supposedly incompatible parents ('original' media source and 'original' creativity) to spawn hybrid offspring." (10)

Tisha Turk draws attention to the ways in which re-editing visuals and changing the soundtrack serve to transform the original narrative in ways that conventional text-based literary theories find difficult to recognize:

[A]vid always represents at least two stories: the story contained within the original source text, and the story of the vidder's response to and transformation of that text at the level of narration. H. Porter Abbott has observed that the burden of narration in film and television is borne not by a speaker but "by the camera (the angles, duration, and sequencing of what it sees) and not uncommonly by music"; these elements of discourse are exactly what vidders alter. A ridder chooses which camera angles to keep or discard, how long each clip should be, and what order those clips should be presented in; and of course she also adds a soundtrack, a song that provides a voice for a character or in some cases for the vidder herself. (11) For example, Vogue, (12) by Luminosity, takes footage of violence and suffering from the film 300 and sets it to Madonna's hit song, transforming the homoeroficism of the original into something blatant and ludicrous (the vid ends with a caption directed at the comic artist and writer responsible for the story: "Fuck you, Frank Miller!"). Vogue is a useful work not only because of the criticism of the film it offers--the vid argues that the movie provides us in the end only the pornography of violence, fetishizing the (white) male body and its suffering while pretending to be about some principle of honor--but also because of the way Luminosity mixes and matches. (13) Why shouldn't a woman's voice, strongly associated with the 1980s and referencing classic American film stars, guide us through this feast of male flesh set in an imaginary Greek prehistory? The one is no more artificial than the other, and possibly more honest about its performativity. As Luminosity told New York Magazine, Vogue "was my chance to do a bait and switch, and turn the 'male gaze' back onto itself." (14) Behind Madonna, Luminosity is the puppetmaster, changing the narrative, taking on the role of the unseen director/auteur.

As Turk explains, "Luminosity uses the lyrics of 'Vogue' to force us to recognize the possibility of seeing the bodies onscreen as 'objects of erotic display.' The vid's humor is grounded in the tension between this possibility and the movie's refusal of it; that refusal is framed as both anxious and pointless." (15) The song is vital to the vid because it celebrates female sexuality, dancing, and the female gaze, all of which the original film attempted to suppress or ignore. Vogue's editing and manipulation of the 300 footage is also aesthetically pleasing and plays on the meaning of the song Vogue "Beauty's where you find it," (16) Madonna sings, and the vid finds beauty in the monstrousness of the initial images as well as in the juxtaposition between visual and audio. (17)

In mid-2010, the Register of Copyright released her recommendation for new exemptions to the prohibition in the Digital Millennium Copyright Act (DMCA) on circumventing technologies that control access to copyrighted works, (18) In the course of explaining a recommendation for an exemption for noncommercial remix video--allowing vidders and other creators to "rip" small portions of encrypted DVDs for reuse in their own new works--the Register mentioned Vogue twice: once as using so much of the original that it might not count as a fair use, (19) and once to illustrate the extensive editing that vidders perform. (20) Because such editing results in some visual degradation with every generation of manipulation, vidders must start with high-quality source in order to end up with effective vids, and this need for high-quality source was a major justification for granting the exemption. (21) The recommendation also discussed several other vids in the course of concluding that noncommercial remix was likely enough to be fair use to justify an exemption and that remixers could not reasonably use non-circumventing methods to achieve the same result.

The treatment of Vogue is noteworthy because the Register both relied on the vid and others like it to show that an exemption was necessary to enable fair use and simultaneously disavowed any such reliance. The exemption was justified because the proponents had shown with evidence that substantial numbers of fair uses were subject to interference by the DMCA. And yet, although the only artist to testify before the Copyright Office was a vidder, and although vids were the only examples discussed in the text of the recommendation to show that substantial numbers of fair uses were implicated by the DMCA, the Register nonetheless insisted that the Copyright Office's ruling was not a statement that even the specific vids discussed were fair uses. (22)

The Register's conflicted reaction exemplifies a general legal discomfort with the unauthorized creativity expressed by vids (23): their critical interventions are understandable as transformative, as fair use doctrine has defined transformativeness, yet at the same time they may seem to copy excessively. It is no accident that excessiveness and femininity have been associated in Western culture, as have copying and femininity. (24) From the dominant perspective, vids take too much; they are created by people (women) who care too much about popular culture: their imaginations at once too fertile and too close to home. Anxiety about female creativity and denigration of domains where women are active creative forces have a long history. From the exclusion of intellectual property protection for cooking, fashion, and other traditionally feminine endeavors to concern over whether novels, or reading generally, were too female, women's subordinate status has transferred to their intellectual creations as easily as to their actual...

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