As mentioned in my post beforehand, the topic of discussion this month was negative spaces in copyright. I missed Shannon’s introduction but we re-visited the definition of just what is a negative space a couple of times as the conversation ranged very far afield.
Kevin, apparently the child of two generations of clowns, discussed the uniqueness of clown faces as an example. He also gave us a lot of information on how clowns self organize and the very old culture that informs how they enforce their internal norms. He wasn’t sure if any “alleys” (so called because clowns being traditionally on the lower runs of performers were forced to prepare literally in the alleys) had actually participated in or recommended trademarking of the face paint designs. Regardless, it is clear that law, public or private, is a far lesser concern in this space.
Kevin also suggested that Mennonite and Amish communities may constitute another negative space. The questions to him from the group ran to what he felt they used their well cultivated cultural norms to protect in terms of crafts and goods. Again, he didn’t have much in the way of detail but it is easy to imagine that artisans are less concerned with law than they are with the principles that guide their communities.
Language as a possible form of intellectual property came up with an example of the Chilean Mapuche Indians suing Microsoft. The idea is that apparently they felt a sense of ownership over their own language, one used by a very small, geographically concentrated group. This one is probably an inverse of a negative space, an IP law being used for some information, such as facts about the real world, well beyond its usual scope. An interesting case, nonetheless.
Several questions around performance based examples arose. Ballet apparently has at least one form of written notation in which a choreography can be fixed in addition to specific video recordings of live performances. In this vein, martial arts were also discussed. Someone cited Bruce Lee’s decision to teach gong fu to Westerners and the reprisals he faced from the immigrant community that previously kept these practices very tightly controlled.
There was also mention of the Bikram Yoga case that apparently started with a copyright claim but ended up securing some rights as a trademark claim. The changing nature of the claim points out the trouble with some negative spaces trying to become positive spaces. It reminded me of the story of software, that back when hardware was prohibitively expensive, the cost acted as a more or less sole regulator on distribution of software. There was an implicit negative space that didn’t change until the advent of personal computing and we saw publishers experiment with both copyright and patent protections for software, the remains of which are still being tested today.
The last note I have that I found interesting is the question of when negative spaces are actually damaging to innovation and creativity. One of the participants, a musician, mentioned a particular instructor who insisted all of his students perform identically to him. He used the tools of negative spaces, norms and shaming, to enforce this to the detriment of the students’ individual creativity.
This instance and many of the more well known examples definitely indicate that negative spaces aren’t any better or worse than law. Even in restrictive negative spaces, though, creators find ways to express themselves. The only lesson I took away was more about positive spaces, that certain developments, in particular the DMCA, have seen dangerous enablements of overly restrictive private law.
The consensus of the discussion seemed to be that where positive laws are proven a necessary evil, public laws that foster a clear and common expectation of what is allowed and what is protected are probably best. That seems to be a common component of negative spaces, that communities do an excellent job of ensuring their members understand the boundaries and the consequences. Where public law does the same, it seems to operate better.
0 Responses
Stay in touch with the conversation, subscribe to the RSS feed for comments on this post.