In The Cultural Life of Intellectual Properties: Authorship, Approbation, and the Law (1998) Rosemary Coombe draws on ethnography, anthropology, and cultural theory to forge a “critical cultural studies of law.” Examining “struggles around cultural forms” is crucial, she asserts, because the cultural dimensions and the political implications of intellectual property law have gone largely ignored in the scholarly literature (p. 7). In the many examples she considers where intellectual property disputes are sites of contested culture and identity, she highlights how certain groups invested with IP rights, such as corporations, have a monopoly over the meaning of certain signifying forms that they “own” (such as trademarks).

Coombe’s analysis of the cultural politics of trademark law leads to three major observations: 
[1] The cultural politics of recoding commodified cultural forms—arts of approbation, recodings of trademarks, detournements of advertising texts, and improvisations upon the celebrity image—are neither readily appreciated using current juridical concepts nor easily encompassed by the liberal promises that ground our legal categories.

[2] Nor, within this Enlightenment framework, may the aspirations of indigenous peoples to protect the cultural indicia of the heritage and the harms experienced by virtue of the circulation of stereotypical representations be adequately acknowledged.

[3] The nexus of these difficulties may be located at the heart of the liberal legal discourse itself, its contradictions, instabilities, and ambiguities—aporias ever more apparent in late twentieth-century conditions. (p. 248)
Like Boyle, Coombe doesn’t simply advocate for either more or less restrictions on intellectual property rights. Rather, she argues that we need to revise our legal categories in ways that acknowledge trademarks and other signifiers as sites of identity negotiation. Coombe’s book is different from Boyle’s not only in its ethnographic approach to IP and the scholarly conversations she situates her critique within, but also in her emphasis on free speech in her recommendations for change.

I’d like to focus on free speech because it is what I see as ultimately at stake in a “critical cultural study of law.” Plus I hope to connect issues of free speech back up with Annita’s question in her post below on Chief Keef and respectful use.

In pointing to the trend of white consumers’ ironic covers of “ghetto rap,” Annita asks:
Aside from interrogating deep-seated racism and classism in order to treat rappers as artists and black people as human (something both monied suburban whites and the US government seem to be continuing to struggle with), what could an alternate nexus of copyright law/understanding of authorship, that is mindful of these kinds of pitfalls, look like?
My first reaction to Annita’s question was “yes, clearly these are examples of disrespectful use. But wouldn’t any legal policing of such use be easily blocked by appeals to the first amendment? Wouldn’t we have to speak out against these racist and classist approbations through non-legal means?”

But after reading Coombe I think there is a way to negotiate issues of respectful use in legal contexts. Coombe speaks directly to the issue of free speech/freedom of expression in her final two chapters on “Dialogic Democracy.” She points to the ways in which the Enlightenment understanding of free speech equates liberty with freedom from government intervention (258-9). This Enlightenment understanding is no longer relevant in a postmodern society where governmental regulation of media is necessary for ensuring a democratic political system. While the traditional, dominant conception of free speech operates through the Enlightenment dichotomies of public/private and citizen/state, a postmodern understanding of free speech would emphasize social context and dialogue:
A dialogic theory of human social life provides a means to reconceptualize and reorient the law of free speech or freedom of expression so that it focuses more on the conditions of interaction than on the interacting individuals—freedom not as a lack of all constraints but as an ability to participate in engaged conversations. The autonomy of the speaker from all social constraint is seen as illusory, because social situatedness is the very precondition for human speech. Instead, the conditions for maximum participation of all people in the ongoing negotiation of the social good must be promoted. (p. 266)
So yes, I think that we can make room for a consideration of “respectful use” in the legal system, but that task would require us to reframe the dominant conception of free speech. Free speech as Coombe imagines it could be would not just involve protecting an individual’s right to say anything, but would involve the consideration of how “speaking” is social event that takes place in a specific context. In emphasizing social contexts and the greater social good, the law would be positioned to recognize, for instance, how white covers of hip hop songs like the one Annita posted are situated within a long history of systematic white approbation of black cultural products and expressions.         

Discussion questions:

1. To extend Annita’s original question, what might a legal enforcement of “respectful use” look like in regards to the example of the white covers of "ghetto rap" songs? In regards to Coombe's example of Crazy Horse malt liquor? In what ways, if any, would "respectful use" have to differentiate itself from “fair use”?  
Left: Black and White, Man Ray, 1926. Right: Portrait Mask (Gba gba), Côte d'Ivoire, Baule peoples, before 1913.
2. In chapter five Coombe spends some time examining the categories of “authentic artifact” and “authentic masterpiece” that are at play in the European Art system. She specifically mentions the 1984 MOMA exhibition Primitivism in 20th Century Art (p. 217). As someone who has seen exhibitions on similar themes (how “primitive” or “oriental” art has influenced Man Ray, Monet, Picasso, Van Gogh, etc), I wonder how these exhibits might have been redone to foreground the “particular histories, local contexts, indigenous meanings, and the very political conditions that enabled Western artists and authors to seize these goods for their own ends” rather than just reproducing the image of indigenous art as decontextualized “artifacts” or “sources” for Western creation. How might the exhibition space be organized to open up the possibility of a historical and political analysis of this intertextuality? How might the exhibition work against the binary of “authentic masterpiece” and “authentic artifact”?  

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