This autumn, I am privileged to serve as a new member of the Freedom of Information Act (FOIA) Advisory Committee, a U.S. federal entity constituted under the Federal Advisory Committee Act (FACA) and administered by the Office of Government Information Services (OGIS), within the National Archives and Records Administration (NARA).
If that alphabet soup has your head spinning, then you have some sense of what it's been like for me to get up to speed in this role. That said, I'm thrilled to have the opportunity and humbled by the expertise of the committee members and OGIS staff with whom I'm serving.
I'll have more to say in time, as we have accomplishments to report. Meanwhile, though, a bit of parody art. At a meeting yesterday of the Implementation Subcommittee, ace OGIS compliance officer and former journalist Kirsten B. Mitchell related an anecdote.
A youthful person had wondered aloud that Fresca is quite old, perhaps dating to the 1980s! And Mitchell said she felt compelled to note that it is even older. In fact, the niche-beloved Coca-Cola Co. soft drink dates to the same year the FOIA was signed into law: 1966. That modest revelation prompted me to generate the above art, based on a contemporary Fresca ad that capitalizes on the drink's age ("Delicious Never Goes Out of Style"). (Above art by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying work of Coca-Cola Co.)
The inaugural public meeting of the 2024-2026 FOIA Advisory Committee, at NARA in September, is posted on YouTube.
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.
In case about fantasy sports, the Delhi High Court in India ruled in late April that satire, news, and art must enjoy protection from right-of-publicity liability.
The case involves athlete likenesses in fantasy sport leagues. Plaintiffs are a Singapore-incorporated fantasy sport provider that invested big money to develop non-fungible token and other electronic products making licensed use of the names and likenesses of co-plaintiff cricket athletes. The defendant business operated a less fancy but "explosive[ly]" popular online fantasy league service using the players' name and likenesses without licenses.
The court determined that Indian law does recognize right of publicity, inspired in part by the example of statutory tort actions in the United States. Accordingly, "passing off" is essential to infringement, the court held, meaning that customers must reasonably understand the defendant's proffered product as bearing the subject's endorsement.
The court denied preliminary injunction. In the instant case, evidence was lacking that the defendant made such a representation or that reasonable users made such a mistake. To the contrary, the defendant online disclaimed any affiliation with or license from the depicted players.
The court also recognized a constitutional dimension to the position of the defense in the case, opining that "use of celebrity names, images for the purposes of lampooning, satire, parodies, art, scholarship, music, academics, news and other similar uses would be permissible as facets of the right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India and would not fall foul to the tort of infringement of the right of publicity."
The case is Digital Collectibles Pte. v. Galactus Funware Technology Pte., 2023:DHC:2796, CS(COMM) 108/2023, 2023 LiveLaw (Del) 345 (Delhi High Ct. Apr. 26, 2023) (India), decided by Judge Amit Bansal, who holds an LL.M. from Northwestern University.
Katrin Göring-Eckardt Heinrich-Böll-Stiftung CC BY-SA 2.0
In August 2022, a German court rejected a politician's claim that a satiric "fake interview" violated her rights.
Attorney Roman Brtka reported on the case for Bird & Bird Munich, and I rely on his report at Media Writes. The case is compelling because the fact scenario, and usually the same outcome, arises periodically in American law from the likes of an Onion "exclusive interview."
The plaintiff in the German case was Katrin Göring-Eckardt of the German Green Party. The defendant was Tichys Einblick(TE), a wide-ranging opinion magazine sometimes identified with right-wing populism. The content at issue was a wholly fictitious interview that mocked Göring-Eckardt's liberal position on pronouns. TE flagged the piece expressly headlined, "Achtung Satire" ("Attention Satire").
Brtka provided a helpful explanation of pronouns in the German language and how they play out in hot-button gender identity politics. The interview employed "extremely exaggerated ... gender-neutral language" to mock Göring-Eckardt.
The plaintiff invoked the German constitutional "right of personality," an outgrowth of broad European privacy law and close cousin of data protection. In this context, the right comes perhaps closest in American tort law to false light invasion of privacy. A better analogy would be a marriage of the right of personal autonomy, as known to medical decision-making in American constitutional law, to the interest of anti-disparagement, as known to trademark law.
The Hamburg regional court concluded, according to Brtka, "that the unbiased and reasonable audience could ... recognise, from the
hyperbolic use of gender forms and the exaggerated demands mentioned in
the article, that these were not actual statements made by the
plaintiff. The mere fact that individual readers might come to a different understanding did not change this." Without any asserted truth, there could be no misrepresentation of the plaintiff's person, so no infringement of the plaintiff's personality right.
Brtka commented that "[i]t remains to be seen" whether the courts would protect satire that is not so plainly labeled, such that the satiric nature must be inferred from the content itself.
Unlike TE, The Onion, "America's Finest News Source," is satire through and through, even as it has been sold between media companies with other properties. The Onion's non-satirical supplement The AV Club was always branded distinctively and spun off in 2012. Taken in context, it's very difficult to mistake Onion content as true, though people sometimes infamously do.
Like the German regional court, American courts, heeding the First Amendment, cut a wide berth for satire, likewise employing objective reasonableness to examine both content and context. Without an assertion susceptible of being proved true or false, there can be no winning claim of false light or defamation.
For satirists, closely related legal problems can arise from real interviews under pretenses the interviewee alleges were false: think Rudy Giuliani in Borat Subsequent Moviefilm. The Borat films and media enterprises such as The Daily Show use releases to help protect themselves. Even a well worded release is not ironclad against a claim that acquiescence was procured through fraud. But whether upon the release or lack of falsity, claims are almost invariably dismissed. The practical problem for plaintiffs is that what the camera captures is true, and the judgment that frames it is merely opinion.
Evidencing American courts' deference to hyperbole, Fox News prevailed in a 2020 lawsuit in part upon the theory that reasonable viewers did not regard the recently newsworthy Tucker Carlson as a source of facts. In 2022, the Sixth Circuit denied recovery to a man who satirized the Facebook page of his local police, and then was charged with and acquitted of a crime. Police were entitled to qualified immunity from the man's civil rights claim, the court concluded. The U.S. Supreme Court denied review amid a set of engaging amicus briefs, including one from The Onion.
Since the E. Jean Carroll verdict against former President Donald Trump, there has been a flurry of commentary suggesting that defamation law is the way out of the misinformation quagmire. It's really not, for a bunch of reasons that are beyond the scope of this post. Relevant here, the understandable thirst for accountability in the misinformation age might push against the traditionally wide berth of protection for satire. Let's hope the courts resist that push, because satire itself is a vital accountability mechanism.
Is any blog complete without aBernie mittens meme?
The source photo for the now world-famous Bernie mittens meme is hardly
in the public domain, despite what one sees in social media. The photo
was taken by D.C.-based Agence France-Presse photojournalist Brendan Smialowski. As The New York Timesreported in January, Smialowski also took one of the well circulated photos (via N.Y. Times) of a cyclist flipping off the Trump motorcade in 2017. He's had a good attitude about his latest claim to fame, the Times tells:
"I
genuinely enjoy the fact that people are having a lighthearted moment
from a political photo," he said. "Things have been pretty tough for the
last year and politics can be pretty nasty, and here are people just
having fun."
Analyzing
the case under Canadian law, Larose and Zener concluded that
non-commercial memes are safe from infringement liability, but mittens
merch makers had better watch out. I'm lookin' at you, Etsy.
I am not so sanguine about U.S. fair use analysis, and I think the
hypothetical case spotlights the too often yawning gulf between IP law and the reasonable
expectations of real people, especially in the internet age.
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.
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).
