D 'n' me at the Accademia in June. RJ Peltz-Steele CC-BY-NC-SA 4.0
David's genitals are all the rage in Florentine touristic fashion, and some observers see a kind of intellectual property (IP) problem.
Italian law has pioneered the protection of cultural heritage since the 15th century (Mannoni), centuries before Italian unification. Medici rulers limited the export of art in the 19th century (Calabi). In the 20th century, a 1909 law asserted a public interest in protecting items "at least 50 years old and 'of historical, archaeological, paleo-anthropological interest'" (N.Y. Times).
Italy continued to lead in protective legal measures in modern times. A public responsibility to safeguard the national patrimony was enshrined in the post-war constitution in 1948 and became the basis of a "complex public organization" (Settis). According to Giambrone Law, Italy was the first nation to have a police division specially assigned to protect cultural heritage. Italy embraced a 2022 European treaty on cultural protection with aggressive amendments to domestic criminal law (LoC). Woe be to the Kazakh tourist who carved his initials into a Pompeii wall this summer (e.g., Smithsonian).
Italian legal protection has extended beyond the physical. A 2004 code of cultural heritage limited visual reproductions of national patrimony without prior approval by the controlling institution and payment of a fee to the institution.
That measure caused more than a little hand-wringing in copyright circles, as the law seemed to reclaim art from the public domain. The Italian Ministry of Culture doubled down with regulations in 2023, even as the EU moved to strengthen the single-market IP strategy.
Probably needless to say, images of famous works of Italian art are sold widely, in Italy and elsewhere, on everything from frameable prints to refrigerator magnets. Enforcement of the cultural heritage law is thin on the ground, but the government has scored some significant wins against high-profile violators.
A recent AP News story by Coleen Barry described the latest outbreak of this IP-vs.-free-speech conflict, this time over images of David. Cecilie Hollberg, director of the Galleria dell’Accademia, where David resides, has decried vendors who profit from "debase[ment]" of David's image.
I saw David in late June. It was the second time I visited him; my first visit was in 1996. I don't well remember Florence from that long ago. But this time I surely was surprised by the quantity and variety of David gear available for sale on the streets around the Accademia, especially the sort of gear that Hollberg is talking about. David has become a character in every variety of indecent meme and crude joke about drinking and sex. David's penis is a favorite outtake.
These uses of David's image especially implicate moral rights in copyright law. Moral rights aim to protect the dignity of creators against distasteful uses and associations. However, as such, moral rights typically end with the life of the creator. Michelangelo died in 1564. The theory behind the cultural heritage code is indicated by the very word "patrimony": that there is a kind of inherited public ownership of classical works, thus entitling them to ongoing moral protection.
Copyright in U.S. law and in the common law tradition in the 20th
century was slow to recognize moral rights, which have a storied history
in continental law, especially in France and in the civil law
tradition. But common law countries came around, at least most of the
way. Broader recognition of moral rights was motivated principally by
treaty obligations seeking to harmonize copyright. A secondary
motivation might have been a proliferation of offensiveness in the
multimedia age.
Hollberg has been the complainant behind multiple enforcement actions. Barry reported: "At Hollberg's behest, the state's attorney office in Florence has
launched a series of court cases invoking Italy's landmark cultural
heritage code .... The Accademia has won hundreds of thousands
of euros in damages since 2017, Hollberg said." Not a bad side hustle.
David's shapely backside is not to be underestimated. RJ Peltz-Steele CC-BY-NC-SA 4.0
EU regulators are looking into the legal conflict between free artistic expression and protection of cultural heritage, Barry wrote. My inclination to classical liberalism puts a thumb on the scale for me in favor of the commercial appropriators. I'm uncomfortable with inroads on the public domain. There already is excessive such impingement on creative freedom: inter alia, abusively lengthy copyright terms, chaos around orphan works, prophylactic notice and take-down, and publisher-defined fair use. The idea of removing permissible uses from the public domain is antithetical to liberal norms.
At the same time, I get the frustration of authorities. The average family visiting the dignified Accademia, eager to induce a much-needed appreciation for history and art in the youngest generation, first must navigate the cultural gutter.
I like hip-hop and rap, but not as much as I used to. My taste in music, I admit, has been softened in middle age by nostalgia and an inexplicable draw to indie pop, AJR being my current fave (see "Bang!" on Today in August, on Ellen in October, and at the Macy's Thanksgiving Day Parade in November). But I like to think that I still can appreciate a broad range of music, and for various reasons. I like Karlae because she's a woman innovating in a genre that has been dominated by male artists (she's not just Young Thug's fiancée), and she represents the multiracial Atlanta arts scene on the contemporary cutting edge. (HT@themorgansteele, without whose aid I would not know Karlae.)
I was a 2 Live Crew fan in secondary school and university, and it wasn't all about the music then, either. The group's breakthrough album As Nasty as They Wanna Beand its curious companion album, As Clean As They Wanna Be, both came out in 1989, in my last semester of high school. There was a lot to like about 2 Live Crew. I liked the music, which had the imprimatur of my best friend, a musician with discernment decidedly superior to mine. But 2 Live Crew's dispositive selling point for me was a tendency to precipitate First Amendment litigation.
A student journalist in the wake of Hazelwood v. Kuhlmeier (U.S. 1988), I was learning a lot about the First Amendment, sometimes in the classroom and sometimes in the vice principal's office. Meanwhile, in 1989, 2 Live Crew, through its Skyywalker Records, sued the sheriff of Broward County, Florida, for declaratory relief from obscenity prosecutions over As Nasty As They Wanna Be. And in 1990, Roy Orbison's record company sued 2 Live Crew's Luther Campbell, a.k.a. "Luke Skyywalker," for copyright infringement in As Clean As They Wanna Be's "Pretty Woman," a parody of Orbison's 1964 classic. 2 Live Crew prevailed on appeal in both cases, the former in the Eleventh Circuit and the latter in the U.S. Supreme Court. Reluctantly, Campbell did back down on the use of "Skyywalker" when the DJ stage name ruffled Lucasfilm feathers in trademark.
Lately, I've eagerly read more about 2 Live Crew and Luther Campbell in the latter's 2015 memoir, The Book of Luke. The book is full of intriguing revelations from behind the scenes about the band and the author.
Campbell's recounting of his Miami youth is thought provoking on the subjects of desegregation and diversity. Characterizing busing's mixed legacy, Campbell describes a black neighborhood, Liberty City, devastated by the dispersal of its youth, and, at the same time, a broadened cultural competence derived from school and sports with some of the first non-black people Campbell knew. He writes:
Being on Miami Beach, even though the school was using us and just passing us along, I still got an education in how the world works outside the ghetto. Most of the guys from my experience, the guys who never left Liberty City, they didn't learn the same things I did. ... They didn't see how to transform themselves into something more than that. ...
Going to Beach High also made me realize that all white people aren't bad. The system is bad, the game is rigged, but not all people are bad. By going there and playing with white friends, Jewish friends, Cuban friends, it just broadened my horizons. There are good people and bad people in every walk of life. There are racist white people and prejudiced black people, and every individual is his own person.
He drills down further into the rigged game to describe the socioeconomic conditions that undermined the civil rights movement in the long term. In plain language, Campbell explains:
Malcolm X and Stokely Carmichael and the Black Panthers, their whole message was about economic self-sufficiency, about how blacks needed to own and patronize our own businesses, to lift up and take care of ourselves. And I believe that. The problem was that the government had denied us our property rights for so long that we didn't have much to work with. The small value of what we did own, our business district, they destroyed when they put that expressway through. Most blacks didn't own any assets or property to borrow against. Banks discriminated, so we didn't have access to business loans or financial capital that you need to run a business.
Campbell capably carries through with this theme of systemic racism to illustrate its impact on the music industry. Nicknamed "Luke Skyywalker" for his Jedi-like mastery of the DJ table, Campbell and 2 Live Crew, each, were already successful acts when Campbell joined the band and brought it within the sphere of Miami's unique cultural mélange. Rather than navigating the infamously insular and monopolistic world of white-owned record labels, Campbell created Skyywalker Records to be the band's own publisher. He recounts a climate in the media business even more hostile than one might expect to the evolution of music by black artists:
The white executives didn't get us, or just didn't want us. But it was really the black executives, the ones who'd been brought up to run the R&B imprints, who tried to kill hip-hop at the start. To them, rap was too black, too ghetto. It reminded them of life in the streets, the world they'd spent their whole lives running away from. They were caught up playing that respectability politics game for those white-owned companies. They wanted to make R&B into upscale, sophisticated music, show how far blacks had come, show how we were becoming high class. It was the same in the black media. Black radio stations didn't call themselves black anymore. They were "Urban Contemporary." They barely gave rap any airplay at all, or if they did it was only in special shows on the weekends. Ebony didn't put a hip-hop artist on its cover until 1991, twelve years after "Rapper's Delight" sold eight million copies. The white folks over at Rolling Stone had Run-D.M.C. on their cover in 1986, five years ahead of Ebony.
Contrary to rap's stereotype, new music was not about new lows in "nasty" for Campbell. The dichotomous debut of As Nasty and As Clean in 1989 was in fact a label equivalent of how Campbell always had run his DJ business. At least according to his own retelling in the book, Campbell worked hard to put on all-ages shows with security employed to keep out alcohol, drugs, and violence, and then to put on adult-restricted shows later at night. The band proactively labeled its music for indecent lyrics, and Campbell personally communicated to distributors and retailers the admonition that under-age consumers should be permitted to buy only clean content.
Predictably, the dirty content received more media attention and generated more commercial success than the clean; certainly eighteen-year-old me was more interested in the former. Yet in the harsh reaction of public officials to indecency, and in media ignorance of the band's efforts at social responsibility, Campbell saw more than mere market forces at work. In 1988, Alabama record store owner Tommy Hammond was arrested on obscenity charges for selling the 2 Live Crew album Move Somethin' from behind the counter to an undercover police officer. Campbell dates "[t]he legal war against hip-hop" to that arrest and explains further:
The cops, apparently, had been getting complaints from Christian fundamentalist groups about the sale of offensive and vulgar material, and the Alexander City sheriff Ben Royal was, I suppose, a real God-fearing, Bible-thumping, easily offended type of guy.
At first I wasn't even mad. I was genuinely confused. Dolemite and Skillet & Leroy and all these comedy records we were sampling, those had been around for years. They were filthy as hell, real nasty, and nobody had ever tried to censor them. Andrew Dice Clay was doing his stand-up act and putting out his albums at the same time we were, and his routines were just as raunchy as what we were doing. Nobody was getting arrested for selling his albums. What was going on? My father and my uncle Ricky taught me a lot about racism and how it works, but I was about to learn a lot more. ...
Dice is white, you see, so he could say whatever he wanted. Parents might protest him, and they did, but he was a white man making a lot of money for a white-owned corporation; nobody was going to take away his right to free speech. All those old chitlin circuit albums we sampled, they were dirty, but white people never listened to them. They didn't cross the color line, so nobody really cared. ... Nobody cared if we were corrupting young black minds with our evil jungle music. ... But Tommy Hammond's record store was the record store serving the white side of town. 2 Live Crew had done the one thing you're never supposed to do. We were black men coming across the color line talking about sex. We were black men in the company of whites, and we'd forgotten to lower our heads and shuffle away.
Campbell in the book goes on to trace his 2 Live Crew and Luke Records career through gang violence bleeding into the concert arena, stand-offs with law enforcement and protestors, and famous and less famous lawsuits. He reflects ultimately on contented family life and the privilege of giving back to Liberty City. I won't spoil all the fun; the ride is worth the cover price.
For my part, it's gratifying to better know the real Luke Skyywalker, both the Jedi knight who inspired me when I was a kid, and the Luther Campbell he became. His tastes have changed, too: as he puts it in the book, a little less groupies and Hennessy, a little more football practice, fretting over SATs, and "raising hell about housing and education." Every individual might be his own person, but there sure seem to be some universal truths to getting older.
Luther Campbell turns 60 today, December 22, 2020. The book is Luther Campbell, The Book of Luke: My Fight for Truth, Justice, and Liberty City (Amistad 2015).
A Tyler County, Texas, grand jury has indicted Netflix for lewd depiction of TV girls in the French film, Cuties (2020). Sadly, the indictment says more about Texas and American criminal justice dysfunction than about Netflix or contemporary media.
The film plainly is protected by the First Amendment, rendering the indictment more political stunt than serious legal maneuver. I wasn't going to watch Cuties, but now I feel like I should, so score one for Netflix, nil for District Attorney Lucas Babin. Or, I should acknowledge, this might be good campaign fodder for an elected D.A. in East Texas, so it's win-win, minus transaction costs.
Using the criminal justice system as a means to political ends is a deeply disturbing phenomenon; John Oliver featured the issue in 2018 commentary on Last Week.
The September 23 indictment (image from Reason) relies on Texas Penal Code § 43.262, Possession or Promotion of Lewd Visual Material Depicting Child. The statute reads:
(b) A person commits an offense if the person knowingly possesses,
accesses with intent to view, or promotes visual material that:
(1) depicts the lewd exhibition of the
genitals or pubic area of an unclothed, partially clothed, or clothed
child who is younger than 18 years of age at the time the visual
material was created;
(2) appeals to the prurient interest in sex; and
(3) has no serious literary, artistic, political, or scientific value.
The latter conjunctive element (3), lacking in serious value, is a typical savings provision meant to bring the law into conformity with the First Amendment, which certainly protects the film.
Promotional image of Cuties French release
Cuties, or Mignonnes in the French original, is a 96-minute drama about a Senegalese-French girl coming of age in contemporary Paris. She struggles to reconcile her conservative Muslim upbringing with the popular culture of her schoolyard peers in the social-media era.
A Sundance 2020 award winner in dramatic world cinema, the film was written and directed by Parisian born Maïmouna Doucouré, herself of Senegalese heritage. In a September 15 op-ed in The Washington Post (now behind pay wall), Doucouré wrote:
This film is my own story. All my life, I have juggled two cultures:
Senegalese and French. As a result, people often ask me about the
oppression of women in more traditional societies. And I always ask: But
isn't the objectification of women's bodies in Western Europe and the
United States another kind of oppression? When girls feel so judged at
such a young age, how much freedom will they ever truly have in life?
The sexualization of the girls in the film is already familiar in the life experience of an 11- or 12-year-old, Doucouré further wrote. Still, a counselor was on set, and French child protection authorities signed off on the film.
Some of the flap over Cuties, and probably precipitating the Texas indictment, was Netflix's initial promotion of the film with an image of the child stars in sexually suggestive outfits and pose (see Bustle). Netflix apologized publicly and to Doucouré and withdrew the portrayal.
Here is the trailer for Cuties.
The case is State v. Netflix, Inc., No. 13,731 (filed Tex. Dist. Ct. Tyler County Sept. 23, 2020).
I had a profound privilege the week before last to visit and speak at SUNY Oswego. I am indebted to the Political Science Department and the Pi Sigma Alpha (PSA) chapter there, especially Dr. Helen Knowles and PSA chapter officers Nicholas Stubba and Kristen Igo. Oswego is a charming town, and the warmth of the people at SUNY more than made up for the lake effect snow.
Pi Sigma Alpha, the political science honor society, inducted a new class of members from among juniors and seniors, based on their coursework and academic achievement. The students' faculty in the Political Science Department and friends and family joined the ceremony. I made remarks on the subject of PSA's 1920 founding and similarities and differences in our contemporary political landscape as we approach the organization's 100th anniversary.
The evening after the induction, SUNY Oswego kindly hosted me to present my research on "dirty language" and censorship. In the talk, titled "WTF?
Proliferating Profanity Under a Conservative FCC," I examined indecency doctrine in FCC television and radio regulation, especially in the three most recent presidential administrations. The talk was held in a beautiful conference room of the Marano Campus Center, with windows overlooking the campus ice hockey rink (above). Faculty and students from various departments attended, including a journalism student reporter for the campus newspaper, The Oswegonian.
In the course of the visit, I had ample time to meet, and be impressed by, dedicated SUNY Oswego students, who don't let a little lake-effect snow keep them from class. Here I am with Dr. Knowles and her civil liberties class. They are lucky to have a seminar led by Dr. Knowles, an expert on various topics in civil rights, especially the jurisprudence of Justice Kennedy and the Lochner-era history of economic due process. She is the author of The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (2009, updated 2018) and co-editor (with Steven B. Lichtman) of Judging Free Speech: First Amendment Jurisprudence of Supreme Court Justices. She is at work currently on four more books, all under
contract: Making Minimum Wage: Elsie Parrish v. The West Coast Hotel Company (U. Okla. Press), Lights, Camera, Execution! Cinematic Portrayals of Capital Punishment (co-authored with Bruce E. Altschuler and Jaclyn Schildkraut, Lexington Books), Free Speech Theory: Understanding the Controversies (co-edited with Brandon T. Metroka, Peter Lang), and The Cascadian Hotel (co-authored with Darlene L. Spargo, Arcadia Publishing).
Particular thanks to Mr. Stubba, who indulged my desire to brave the bitter wind and see Lake Ontario from the shoreline. Watch how the ice undulates on the waves!
Kitty Bruce cuts the ribbon on the Lenny Bruce archive at the Brandeis University Goldfarb Library.
There is indecent language in this post.
In the last week of October, Brandeis University hosted a
conference, “Comedy and the Constitution,” celebrating the life and work of
comedian Lenny Bruce (1925-1966).The
conference marked the accession in the Brandeis University Library of Lenny
Bruce’s papers, donated by his daughter Kitty Bruce, who participated in the
conference.The program was organized by
Professor Steve Whitfield in American Studies and Sarah Shoemaker in Goldfarb Library Special
Collections. Featured speakers included Christie Hefner, former chairwoman and CEO of
Playboy Enterprises, and “outrage” comedian Lewis Black, known to many through
his long-running Daily Show segment,
“Back in Black.”
My own paper for the academic part of the program concerned
free expression and communication regulation.Specifically, I looked at Bruce's technique of
repeating indecent words with the aim of disempowering them.If one repeats fuck again and again, the tenth repetition doesn’t sting the
ear as much as the first.George Carlin was there
at least once when Bruce was arrested for “obscenity” based on the use of
discrete words.There can be little
doubt that the experience directly influenced Carlin’s famous “seven dirty
words” routine.This comedic tradition
at least tracked a strengthening of free expression in U.S. culture and
law—think “Fuck the Draft” on Cohen’s jacket, 403 U.S. 15 (1971)—and might moreover have been a precipitating force.For better or
worse, the power today that attaches to many favorites in the pantheon of bad words is not what it
used to be.Ruth Wajnryb observed in her
2005 book, Language Most Foul,
“[N]owadays it takes several fucks to
achieve what one lone fuck would have
achieved ten years ago.”
The lodging of Bruce’s legacy at Brandeis is a good fit for
a couple of reasons.The university is
named for Justice Louis Brandeis, an associate justice of the U.S. Supreme
Court from 1916 to 1939.Brandeis was a
key contributor to modern First Amendment law.In the wake of World War I, he laid the groundwork for a more vigorous
model of speech protection than had been known in the prior century.Even amid the Red Scare, Brandeis recognized
that if freedom of speech means anything, then minority perspectives on
politics must be protected, however distasteful to the establishment.
Brandeis also was the first Jewish member of the U.S.
Supreme Court, an experience that informed his views on social justice and antimajoritarianism.Judaism played a key role
in the founding of (non-sectarian) Brandeis University and remains today an
omnipresent part of the university’s social culture.Bruce was a Jewish comedian, and his cultural experience shaped his comedy.
A
number of academic papers at the conference focused on the role of Yiddish in
the comedy of Bruce and also in the wider tradition of Jewish comedy. I was ignorant on this
point.But presenters made a compelling
case that the Yiddish tongue is especially well suited to comedic devices such as double
entendre and nuanced word play. In broad strokes, the particular
compatibility of Yiddish with comedy seems a function of the truism that
people have always turned to comedy to relieve suffering.
Christie Hefner
In terms of political commentary, Christie Hefner traced a direct legacy from Lenny Bruce to
the sharp witted comedy of TheDaily Show and Last Week with John Oliver.I think she’s right.Jon
Stewart and Stephen Colbert routinely scoffed at the notion that they
produce news, despite serious research showing their influence on
popular
thinking about politics.Stephen
Colbert’s SuperPAC bits on The Colbert
Report spoke volumes on the very real role of money in politics. John Oliver eschews the label of
journalist, but his work at HBO has at least raised awareness, if not effected
reform, on critical social issues such as net neutrality.
Someone at the Brandeis conference pointed out that some of
our attribution to Lenny Bruce of a desire to make the world a better place--by cursing of all things--has
got to be a posthumous fiction. I
think that’s right too.Bruce was just a
person, not a legend.He wanted to
sustain himself with his flair for the funny, to fill seats at shows, and to take care of his
family.Arrests for obscenity--the more
absurd the state's case, the better--were good for business.
I’m not troubled by any dissonance in the legend and the
man who was Lenny Bruce.The Old Testament is replete with the sea changes of unlikely messengers.
Lately I have been doing research on "bad language" in anticipation of the Lenny Bruce conference that will dedicate his archive to Brandeis University libraries (see Comedy and the Constitution, and join us on October 27-28!). A couple of sources have taught me that the vulgar word "turd" shares an origin with the legal term "tort." As explained by Professor Geoffrey Hughes in his Encyclopedia of Swearing (2006), page 467:
TURD. This ancient term has followed the same basic semantic route historically as shit, being first recorded in Anglo-Saxon times in a plain literal sense, leading to various metaphorical extensions of coarse abuse from the medieval period onward. Etymologically the word turns out to be a distant relative of legal tort, both rooted in the concept of being twisted or crooked.
So the next time I'm told, "You're full of shit," I will say, "Why, thank you. I am indeed a torts professor."
