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Everything I needed to know I learned during college. Not all of it came from books, or my teachers, although they were
Quarterly Journal of Speech Vol. 96, No. 4, November 2010, pp. 421426

Everything Is Connected Kembrew McLeod

Everything I needed to know I learned during college. Not all of it came from books, or my teachers, although they were certainly important. During my undergraduate years, I learned to experiment and mix it up, literally and metaphorically. I augmented my intellectual interests with other modes of expression: publishing in college and alternative newspapers; staging public spectacles, or pranks; and making multimedia work, including graphic design, video production, and audio collage. (I was a sociology major and an art minor, a plan of study that turned out to be eerily prescient.) Out of those formative experiences, I gained insights that I continued to carry with me in my role as a teacher, researcher, and cultural producer. In my own work, I seek to blur the distinction between scholarship, everyday life, and the arts (or, as my university employment contract refers to it, ‘‘creative work’’). Working alone and with other people, I have written books, published articles, and*in an attempt to translate my scholarship for a wider audience*I also make educational documentaries. One recent example is Copyright Criminals, which aired on PBS’s Independent Lens series (January 23, 2010). The film shares its name with, and derives much of its research from, the second chapter of my book Freedom of Expression† : Resistance and Repression in the Age of Intellectual Property (Minneapolis: University of Minnesota Press, 2007). The title refers to the fact that I successfully trademarked the phrase ‘‘Freedom of Expression† ,’’ which was one of my pranks*but more on that later. By turning a chapter from my book into a documentary, I wanted to tell the same tale, but in an audiovisual medium. As a music critic, I know how difficult it can be using words to express sounds. Instead of describing the evolution of a musical genre on the printed page, from a storytelling perspective, it makes more sense to play actual music for an audience. Show; don’t just tell. However, from a legal perspective, documenting the history of sampling makes us a target for the same kind of copyright infringement lawsuits endured by our documentary subjects. This is one reason why the film’s smart-aleck logo consists of a copyright symbol made to look like a bull’s-eye. (Any similarity to the Target corporate logo is purely coincidental.) Why did we use so many clips? My documentary partner Benjamin Franzen and I wanted the film’s aesthetic to reflect its subject matter: collage, hip-hop sampling, Kembrew McLeod is Associate Professor in the Department of Communication Studies at the University of Iowa. Correspondence to: Kembrew McLeod, Department of Communication Studies, University of Iowa, BSCB 105, Iowa City, IA 52242, USA. Email: [email protected]. ISSN 0033-5630 (print)/ISSN 1479-5779 (online) # 2010 Kembrew McLeod DOI: 10.1080/00335630.2010.521178

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and the rise of remix culture. Copyright Criminals documents how hip-hop producers have, since the genre’s origins, cut and pasted portions of old records into their music. For years, this genre stayed beneath the commercial radar, which gave artists a lot of creative freedom to make their art however they wished. The music that emerged in the late 1980s and early 1990s often featured densely layered musical collages that were groundbreaking. Groups like Public Enemy pushed technological and creative boundaries to the limit, crafting elaborate collages that might layer dozens of nearly unrecognizable aural quotations over the course of one song. But when the copyright clearance system was applied to a once-marginalized musical subculture, it became economically and bureaucratically impossible for them to make music the way they used to. The contemporary copyright clearance system is grounded on belief that one needs to license even the most minor of quotations. It asserts that every atom of a particular work belongs to the original creator or copyright owner, regardless of the way it has been recombined with elements of other works to create something new. This amounts to a one-drop rule*where a new work containing a fragment of another work is legally tainted, no matter how it has been transformed or recontextualized. Our documentary is not as good as a classic Public Enemy album, but it shares a key characteristic: it is made from fragments of a few hundred copyrighted sources. If Ben and I tried to clear everything in the film, Copyright Criminals would be prohibitively expensive to make (costing between, at least, two and four million dollars). In other words, we made a film that tries to educate people about the ill effects of today’s copyright clearance system, but that very same system muzzled our ability to show how crazy this state of affairs really is! Something is fundamentally wrong when an intellectual property specialist has problems making and distributing a documentary because the film’s subject*copyright*stands in the way. But after a lot of hard work, our film made it into the world. How? Two words: ‘‘fair use.’’ The fair use statute is a provision of US copyright law that allows one to quote from copyrighted works without permission, for the purpose of education, commentary, criticism, and other transformative uses. As a scholar who regularly cites others when working in print media, I was not about to stop quoting just because I was ‘‘writing’’ in an audiovisual medium. It was important for me to make a stand and push back against this clearance culture, demonstrating that fair use does not just exist in theory, but also in practice. However, there were very material institutional obstacles that stood in the way. When we first started Copyright Criminals in 2003, there would have been no way to air the film nationally, even on PBS. That’s because the companies that insure broadcast documentaries did not cover a film if it contained a fair use (and ours had over four hundred unlicensed uses). Fortunately for us, the ground beneath our feet shifted in the intervening years. During this time, the Washington, DCbased Center for Social Media worked with documentarians and their professional filmmaking organizations to develop and publish an influential document that strengthened fair use. Documentary Filmmakers’ Statement of Best Practices in Fair Use*a mouthful of

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a title*helped provide clear guidelines for quoting copyrighted content in ways that that this creative community considered fair.1 Given that courts pay attention to a community’s standards when deciding a copyright infringement case, this document was a key factor in persuading underwriters, broadcasters, and DVD distribution companies to relax their stringent rights clearance policies. Recently, the Center for Social Media worked with the International Communication Association to produce a similar document for communication scholars. This document was in turn modeled after a best practices document produced in the early 1990s by the Society for Cinema and Media Studies. It addressed the use of frame enlargements in scholarly work, and as a direct result of SCMS’s actions, film journals loosened their rights clearance policies. It is important to note that these changes did not come from the top down from a legislative body, but rather from the ground up through grassroots organizing. I am scholar; hear me roar. As someone who focuses on intellectual property issues in my academic work, it was important for me to boldly (but not stupidly) employ fair use throughout Copyright Criminals. I did so even though it makes me liable for up to sixty million dollars in statutory damages. Yikes. Most significantly, it creates a good precedent. I am fairly certain PBS, or any other network for that matter, has never aired a program that contained so many unlicensed uses. Despite the concern on the part of some in PBS’s business and legal affairs departments*and trust me, some people were pulling their hair out*no one has been sued since its broadcast. And if we were sued, I believe we would have a very strong case. By disseminating my film in a fairly mainstream venue, I hope to have pried open the door a little bit wider for other likeminded people to storm through. I should also point out that my interest in copyright and free speech is the primary reason I publish my academic work under a Creative Commons license and other forms of open access publishing, whenever possible. One of the stupidest ways scholars can limit their engagement with the public is to block it behind a passwordprotected firewall. There are also very practical, self-interested reasons why we should fight for openness. By all accounts, scholarly work published through an open access model has a far greater impact*in terms of citations*than those that don’t. This has definitely been my personal experience. Plus, open access saves our libraries from having to rent the rights to access our work*which our universities essentially subsidize with our salaries. Talk about alienated labor! Returning to the idea of using different modes of expression, my multifaceted sampling project is an example of that approach. While working on the film, I began a collaboration with Peter DiCola, a law professor at Northwestern, that resulted in Creative License: The Law and Culture of Digital Sampling (Durham, NC: Duke University Press, forthcoming). This book brought my music criticism and media studies background into conversation with DiCola’s training as a lawyer, economist, scholar, and musician. The book is far greater than the sum of the parts we individually brought to it. It was also a reminder that scholars should not merely pay

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lip service to interdisciplinary work; we need to do it, even if it means moving out of our comfort zones. Another dimension of this interconnected sampling project is pedagogical. I produced a teaching and discussion guide for Creative License that is aimed at media and communication instructors*along with those in the humanities, more broadly. DiCola did the same for law professors. These guides will make it easier for university teachers who have no background in music, media, technology, or copyright to be able to use the book and the documentary in their classes. PBS’s Community Classroom program has also produced similar instructional resources for Copyright Criminals, which are aimed more generally at both college and high school students.2 PBS’s Community Classroom curricula are far more extensive than the ones DiCola and I made. They include dozens of pages of suggested classroom exercises, discussion guides, and teaching resources. These print and video materials*which contain scenes from the documentary reedited to facilitate classroom discussion*are freely available on the Web. Also, a DVD version containing clips from the documentary is available at no cost, directly from PBS. All of these resources create articulations between Creative License and Copyright Criminals with the hopes of engaging a wide range of teachers and students. Lastly, after Copyright Criminals aired, I used the broadcast as a springboard to publish an essay in The Atlantic magazine of March 31, 2010, titled ‘‘How to Make a Documentary about Sampling*Legally.’’ This circulated widely and prompted a healthy public discussion about the free speech implications of the existing copyright clearance system. I have written similar op-ed pieces for the New York Times (June 25, 2004) and the Los Angeles Times (September 18, 2007), which were only published after several rejected submissions. The secret to public engagement is persistence; there is no magical formula. In concluding, I want to discuss pranks*which are among the more idiosyncratic ways I try to intervene in the world outside the academy. And by ‘‘pranks,’’ I’m not talking about stupid hazing rituals and the like. Thoughtless practical jokes do nothing more than reinforce unfair and unequal power dynamics, and are just plain mean. A good prank uses deception to speak truth to power, or at least crack jokes that expose fissures in power’s fac¸ ade, often using the news media to do the work. It’s a way of messing with media*kind of like throwing a rock in the pop culture pond to study the ripple effect. If these acts could be reduced to a mathematical formula, they might be expressed as Pranks SatirePerformance Art x Media. In its most basic form, a prank is performed criticism amplified through media. One example of this was my ‘‘Freedom of Expression†’’ prank. On January 6, 1998, the United States Patent and Trademark Office granted me ownership of the phrase. This trademark was assigned its own serial number (#75235164), and it was approved the same year Rupert Murdoch’s Fox News became the steward of another iconic phrase: ‘‘fair and balanced’’ (#75280027). When I submitted my application, it was a kind of dare. Even though I hoped I did not live in a world where freedom of

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expression could be privatized, the bureaucracy that processed my application believed otherwise. My private joke went public when I paid an attorney to go after AT&T after it used the phrase*without my consent!*in a newspaper advertisement. (One of my undergraduate students brought it to my attention, the class joked that I should sue the telecommunications giant, and so I ran with it.) On January 23, 2003, the New York Times broke the story in Nat Ives’s article, which began with the sentence, ‘‘Freedom of expression, it turns out, may not be for everyone.’’ Although AT&T refused to formally respond to the cease and desist letter, the point was made. I used the news media as my megaphone, and the story spread virally, especially on the Internet. I suspect the prank resonated because it contained such a glaring, absurd internal contradiction. Plus, the sentence*‘‘Did you hear about the guy who trademarked freedom of expression?’’*performs my critique about the privatization of culture with little effort. By generating these sometimes-humorous, sometimes-serious spectacles, I hope to create compelling narratives that will prompt an interesting discussion. As a teacher and researcher, I have learned the value of storytelling, and I inject it into my classroom lectures, multimedia work, and writing. Of course, pranks will not change the world, nor do they have the same efficacy as organized direct actions, but they can have an important pedagogical value. Pranks prompt unsuspecting audiences to pause and hopefully reflect*even if it is only for a few seconds. At their most savvy, these acts of deception can also help draw back the curtain, exposing how the culture machine works. A well-executed prank gives us a unique opportunity to trace a story as it moves through the mediascape. There are downsides to this strategy. Once a story becomes a mediated meme, it takes on a life of its own, and you lose control of how it is taken up, which can be both exhilarating and troubling. To poorly paraphrase Stuart Hall, it is pranksterism without guarantees*but there are ways of countering misappropriation. Perhaps the most important stage of an effective media prank is the moment when the prankster reveals and publicly explains the purpose of the intervention. It’s not good enough merely to trick or surprise people. The ultimate value of a good prank is not in the final product or event, but in the ongoing process of educating, storytelling, and occupying the contested world of popular culture. In closing, I should underscore the fact that the particular techniques I use to engage with the world are unique to my own personal quirks. I certainly do not hold myself up as a model that others should follow, because the path I chose has much to do with my biography and individual interests. However, when viewed at a more abstract level, I do believe that other scholars can gain from this approach. Finding creative ways to connect our scholarly interests with the things we are passionate about is one key to breaking through university walls and starting conversations. By blurring the divisions of labor that fracture our professional and interior identities, we will become better teachers, researchers, and citizens.

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Notes [1]

[2]

Association of Independent Video and Filmmakers, Independent Feature Project, International Documentary Association, National Alliance for Media Arts and Culture, and Women in Film and Video (Washington, DC, chapter), Documentary Filmmakers’ Statement of Best Practices in Fair Use, Center for Social Media, School of Communication, American University, November 18, 2005, http://www.centerforsocialmedia.org/sites/default/files/fair_ use_final.pdf. ‘‘Copyright Criminals,’’ PBS Independent Lens, http://www.pbs.org/independentlens/ copyright-criminals/classroom.html.

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