Posted on 2016/10/25 by

Napster, the Memory Remains: the Evolution of Digital Piracy

In his article “Piracy as a Business Force”, Adrian Jones presents us with a detailed history of pirate radio and its ambitious goal of challenging the public monopolies of its time. When it was first created, one such monopoly was the BBC, which acted as a “single, public-service broadcaster” that Jones argues “restrict[ed] the ability of individual citizens to experiment in the ether” (48). Essentially, pirate radio was a form of protest against the standardization policies set in place by the BBC. People wanted more freedom in what they listened to, and when they listened to it. Thus, supporting pirate radio became a way for the public to unite and rebel against an overbearing corporation. However, over the years musical piracy has evolved. With the arrival of the Internet and the creation of music sharing programs, piracy has become more about free music rather than ‘sticking it to the man.’ Though some may argue that pirating music online is a way to further avoid filling greedy music labels’ pockets, artists’ outright frustration towards pirated music proves that pirating music is no longer the form of rebellion it once was. This frustration is evident in the many court cases filed against popular pirating programs, such as metal band Metallica’s decision to sue Napster.

Prior to the dawn of digital culture, pirating music was neither very common nor very easy to do – at least not on the scale we know today. One could sit by the radio all day waiting to record one’s favourite songs off a local station in order to make a mixed tape, or borrow a cassette from a friend and copy the tracks onto a second blank cassette. Both were lengthy processes that produced low quality copies. Yet copying music was only a difficult practice until the arrival of digital recording and, primarily, the Internet, which revolutionized the world with peer-to-peer sharing. Whereas Jones states that “pirate listening [of pirate radio] threatened to create a population of autonomous, individual agents” (48) so too did the advent of peer-to-peer sharing – simply on a much grander and more economically-centred scale. Pirate radio offered people the chance to undermine the BBC’s censorship and control, while peer-to-peer sharing allowed individuals to listen to the music of their choice, all the while undermining the profits generated from it – for both labels and artists.

However, even with the arrival of the Internet, sharing music files remained a relatively unorganized process. That is, until a college student by the name of Shawn Fanning created a peer to peer sharing service, called Napster:

 “Napster’s system allowed music on one computer hard drive to be copied by other Napster users. Digital MP3 files are created from an audio compact disk CD by a process called “ripping.” Ripping software allows a CD user to compress the audio information on the CD into the MP3 format, and copy it directly onto a computer’s hard drive. Napster users used Napster’s centralized servers to search for MP3 files stored on other computers. Then, exact copies of the MP3 file could be transferred from one computer to another via the Internet.” (USlegal).

Even though Napster greatly facilitated music sharing across the Internet, the program still came with a fair amount of issues. For one, downloading the program onto a computer immediately made all files (such as videos, MP3s, and pictures) available on the internet for other users to download (thus the ‘sharing’ part of peer-to-peer sharing). This ultimately left one’s computer open to viruses – a threat that most Napster users remember well. However, the greatest issue by far was that most of the music being downloaded fell under copyright law, and thus constituted an illegal action. Piracy was no longer about listening to shadow radio stations but about actively searching and copying music onto a computer.

Image taken from Pinterest

Image taken from Pinterest


As to be expected, both record labels and artists quickly revolted against this type of file sharing as a potential threat to their profits. The first ever band to sue Napster for copyright infringement was Metallica, with their drummer Lars Ulrich as leading spokesperson. After hearing one of their unreleased songs playing on the radio, the band was able to trace the source back to Napster (United States Senate Committee on the Judiciary, Testimony of Lars Ulrich). It was not so much that Napster had Metallica’s music available on their website, but rather that they put the band’s music there without consent or permission. During his testimony, Lars states,

“But just like a carpenter who crafts a table gets to decide whether to keep it, sell it or give it away, shouldn’t we have the same options? My band authored the music which is Napster’s lifeblood. We should decide what happens to it, not Napster — a company with no rights in our recordings, which never invested a penny in Metallica’s music or had anything to do with its creation. The choice has been taken away from us (United States Senate Committee on the Judiciary, Testimony of Lars Ulrich).”

Some may argue that this testimony sounds like the complaint of a rich artist creating a problem for users who want to be able to listen to their favourite songs but who do not want to pay for it. Much of the backlash against Metallica’s lawsuit followed this line of thinking, stating that the big artists or record labels are simply trying to squeeze every penny possible from their fans, and how much money can they possibly be losing anyway? Yet Lars responds to these critics, stating “you have an industry with many jobs–a very few glamorous ones like ours — and a greater number of demanding ones covering all levels of the pay scale for wages which support families and contribute to our economy” (United States Senate Committee on the Judiciary, Testimony of Lars Ulrich). With this in mind, piracy no longer seems like a rebellion against a big, controlling corporation, but rather an overstepping of boundaries. With the rebellious aspect removed, we are left with a push and pull between fair use and intellectual property rights. Though some might argue the spirit of rebellion that inspired the original pirate radio might seem alive in sites like Napster, the scale to which pirating programs negatively affects the entire music industry – from the big, established icons like Metallica, to the less glamorous but equally important jobs – contributes to the overall decline of said industry.

Napster’s initial response to backlash from the record labels was to plead fair use in their engagement of the copyrighted material (USlegal). Section 107 of US copyright law states four determining factors of whether or not use of material can be constituted as fair:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work (USlegal).

Napster argued that their users were simply sharing music they had already purchased in CD format, and that the songs they downloaded for free were samples to be listened to temporarily before purchasing the full product. These arguments were rejected by the court on the grounds that sampling is in fact still considered commercial use, as well as the concrete evidence that the market had been affected by their program (USlegal).

In 2001, Metallica took Napster to court, and a settlement was reached, wherein Napster was forced to make some changes to the way they ran their program, as well as to what kind of music they were allowed to make available to their users. As Metallica’s issue was never with the sharing of music between their fans but rather the use of their material without permission, they agreed to offer some of their work for Napster to include in their services. For their part, Napster was to stop sharing copyrighted material, and could only use music with permission from the artists. Furthermore, it was up to Napster to alert the authorities if any infringed material entered their network (United States District Court Northern District of California, C 00-4068). It is this last directive that was to lead to Napster’s downfall, as they simply were not able to completely block the transfer of copyrighted material. Thus, in 2002, Napster was taken down for good, and Shawn Fanning’s 15 minutes of fame came to an end.

Several other similar programs were to step in and take Napster’s place, such as Kazaa, Limewire, and Frostwire to name a few, but none lasted for very long as they were always unable to find a way around copyright infringement. Yet the closure of these programs is never a true disappointment on the part of their users, as people always find new way to download music illegally. Nevertheless, in recent years, the public’s attitude towards musical piracy seems to have shifted. There is a movement towards buying music in order to support artists, and, as always, artists are willing to make some of their material available for free for their fans. Furthermore, programs like iTunes enable users to buy individual songs from artists by way of sampling – a fair middle ground between purchasing an entire CD and downloading a song illegally. These developments allow for the creation of a “population of autonomous, individual [legal] agents” (Johns 48, emphasis added), with the ability to listen to what they want when they want.

Ultimately, digital music pirates do not have the same legacy as radio pirates and their listeners. The latter had a significant and beneficial cultural goal that sought to undermine monopolies and corporations, allowing for more cultural freedom. The former see music as a commodity than can be freely distributed, ultimately limiting the market value of any such creative work – and in essence stifling that same creative freedom. Piracy is no longer about making a political or social statement, but is in fact akin to distributing black-market goods, which undermine both the market and intellectual property. Society clearly does not view these two types of pirates equally. Radio pirates have a “Pirate Radio Hall of Fame” and a list of movies that capture the spirit of their rebellion, while musical pirates are still being hunted down as deceivers of the law.



Works Cited

Johns, Adrian. “Piracy as a Business Force” Culture Machine [Online], 10 12 Jan 2009

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA.  METALLICA, a California general partnership; E/M VENTURES, a New York joint venture; and CREEPING DEATH MUSIC, a California general partnership v. Napster Inc. 5 March 2001. Legal document. Accessed 24 October 2016

United States Judiciary Committee. Hearing on “Music on the Internet: Is There and Upside to Downloading?” Testimony of Mr. Lars Ulrich. July 11, 2000. Accessed October 24 2016.

US legal, Inc. “Napster.” Web page. Accessed 24 October 2016.

Posted on 2016/10/25 by

From Pictographs to Pixels: Exploring Cultural Appropriation in Virtual Worlds

The virtual worlds of video games offer a unique landscape wherein cultural heritage comes into contact (and tension) with new and emerging technologies as well as a plethora of other cultures: fandom culture, internet culture, consumer culture, and so on. It’s a landscape that is relatively new and that offers a veritable cultural quagmire to navigate, and as evidence continuously suggests with alarming frequency, we’re just not adequately equipped to do that.

There’s a lot to parse; for the sake of focus, here is what I hope to explore in this probe:

  • The unique form cultural appropriation takes on in the medium of the digital game (or, an attempt to illustrate why cultural appropriation in video games is a uniquely sensitive issue)
  • The travails involved in navigating discussions of cultural heritage, complicated by the platform on which these discussion are staged (or, why the internet is both wondrous and terrifying)

I will be drawing on, mainly, George Nicholas’ chapter “Indiginous Cultural Heritage in the Age of Technological Reproducibility: Towards a Postcolonial Ethic of the Public Domain”; in addition, I have spent time researching various online communities and publications and poring over forum threads (GameFAQs, N4G, Gamer Professionals, Heatstreet, Tumblr, Reddit, etc.).

Cultural Appropriation in Games

In short: it happens. In her essay “The Appropriation of Aboriginal Cultural Heritage: Examining the Uses and Pitfalls of the Canadian Intellectual Property Regime”, Vanessa Udy reiterates the United Nations Educational, Scientific and Cultural Organization’s definition for cultural heritage: “the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity […]” (Udy). She then goes on to define cultural appropriation as such: “the unauthorized ‘borrowing’ of expressions, artistic styles, symbolism, myths or know-how from a dominated culture by a member of the dominant culture” (Udy). Video games, being a huge global industry and a chief site of contemporary popular culture, “offer insight into dominant ideologies, as well as the deployment of race, gender, and nationalism” (Leonard 1). Scholar David Leonard, in his paper “”Live in your World, Play in Ours: Race, Video Games, and Consuming the Other”, offers the following reminder: “According to Omi and Winant (1994), racial formation takes place through a “process of historically situated projects in which human bodies and social structures are represented and organized” (p. 55) Video games are one such project.” (Leonard 3)

What interests me is the ways in which appropriation is integrated into gameplay; there are, I observe, two different levels of cultural appropriation occurring in many instances: (1) the representational level – the inclusion of an object, symbol, or material from a particular cultural heritage that is mirepresented within the game, as per decisions made by the game designer, and (2) the interactive level – the appropriation that takes place when a player chooses to interact with the culturally appropriative material. Given the wide variety in style, dissemination, and playability of games, it is perhaps easiest to regard such instances on a case-by-case basis. I’ve compiled a selection of cases with which I’m familiar in the hopes of illustrating my point:

  • Overwatch (2016, Blizzard Entertainment) – On at least two separate instances, the multiplayer online FPS was called out for appropriating cultures: The character Symmetra received a skin – an optional alternate appearance for the character – known as ‘Devi’ (the Sanskrit term for ‘goddess’), which reimagined her character as a Hindu goddess. President of the Universal Society of Hinduism, Rajan Zed, urged the game developers to remove the skin:

“Rajan Zed indicated that reimagining Hindu scriptures, symbols, concepts and deities for commercial or other agenda was not okay as it created confusion. Controlling and manipulating Devi with a joystick/ button/keyboard/mouse was denigration. Devi was meant to be worshipped in temples and home shrines and not to be reduced to just a “character” in a video game to be used in combat in the virtual battleground.”

Secondly, the character Pharah, of Egyptian heritage, was given two skins with the names ‘Thunderbird’ and ‘Rain Dancer’, the likes of which reimagine her design with Native American aesthetics, including face paint and native regalia. Naturally the inclusion of such an aesthetic risks stereotyping and diminishing Native culture, but additionally the grafting of one marginalized culture’s heritage onto a character from another marginalized culture is doubly concerning. As Blizzard has previously removed content that was deemed inappropriate, there exists a precedent for this game to change its content based on player feedback, which is not the case for many other games for a number of reasons.

  • The Elder Scrolls V: Skyrim (2011, Bethesda) – PhD candidate Victoria Cooper (University of Leeds) asserted in her paper, “Playing Politics: Exploring Nationalism and Conservatism in Fantasy Video Games”, that Skyrim misappropriated the middle ages.
  • Animal Crossing: New Leaf (2012, Nintendo [1]) – A ‘war bonnet’ accessory exists which can be bought with virtual currency and used to customize the player’s avatar.


    Source: New Leaf HQ, a fansite

  • Final Fantasy XIV (2010, Square-Enix) – A similar accessory can be used to customize the player’s avatar, which was deemed inappropriate by some players.
  • Various Fantasy Roleplaying Games – Games like Skies of Arcadia, Final Fantasy, Golden Sun, Pokémon, and more take place in fantasy worlds meant to be analogous to our own – this often means depicting a number of cultures rather shoddily. Skies of Arcadia (2000, Sega) for example, includes the Ixa’takans (pictured below), a ‘Culture Chop Suey’ of North, Central, and South Native American cultures.

The cases described above are examples of what I referred to as representational appropriation: the creators willingly chose to integrate materials from particular cultural heritages that were not their own and over which they had no authority. Games, however, being a largely experiential and interactive medium, requires one to look beyond surface representation. In the cases of Overwatch, Animal Crossing, and Final Fantasy XIV’s (mis)use of cultural materials, the objects in question (Symmetra’s or Pharah’s skins, the war bonnet accessories) function in a similar way to real-world popular costumes worn to music festivals or sold during Halloween: their existence is, in itself, unfortunate, but the choice to purchase and adorn them rests with the player. The game, as an interactive medium, gives the consumer some agency and ability to sidestep the cultural appropriation taking place, leaving it out of their own personal experience or narrative. While not a remedy, it is an element worth noting in order to understand how cultural appropriation exists among different media. This participatory element is echoed in Zed’s condemnation of Symmetra’s alternate skin, in which he emphasized the controlling and manipulating of the avatar as denigration, not simply the character’s graphical representation.

The general reaction to claims of cultural appropriation is often frustratingly limited. The very suggestion is seen as an attack, a result of a society overly concerned with appearing “PC”, and an attempt to quash creative freedom. Comment threads were rife with snark and sarcasm, with quotation marks haphazardly thrown around words like appropriation, racist, problematic, trigger, etc. in an obvious attempt to discredit and dismiss. As one contributor on Medium.com laments, “Are people so selfish that they can’t allow some-one else to find joy in their culture? Should someone be yelling at me because I’m a white guy who likes Chinese and the odd curry? By eating that food am I somehow some evil monster stealing from a culture?”.

A simple Google search for Cooper’s paper offered, instead, disheartening and often knee-jerk reactions.

A simple Google search for Cooper’s paper offered, instead, disheartening and often knee-jerk reactions.

This anguished catechizing is representative of an idealism Nicholas remarks on:  “The idea that we are the product of everything and everyone that has come before us fuels the notion that society does (and, indeed, should) benefit from mutually shared ideas and information” (Nicholas 213). It is a notion that is quite far from reality. If the aforementioned contributor was interested in an answer, Nicholas readily provides a possible one, at least in the context of Indigenous peoples: Western society considers cultural heritage in terms of dichotomies, whereas many Indigenous societies do not: “There may be more than two genders; time may be viewed as cyclical; and there may be no perceived distinction between the tangible and intangible elements of cultural heritage. Thus, many Indigenous peoples perceive their world as one in which material objects are more than just things, and in which ancestral spirits are part of this existence, rather than some other realm” (Nicholas 216, original emphasis). Nicholas offers the example of pictographs painted on rock surfaces: in the western world these may be considered nothing more than historical documents or artistic creations, yet under a First Nations perspective they depict a “possibly still active world view and spiritual interactions” (Nicholas 216). Thus, it is clear that at the core of this tension are “fundamental cultural differences between Western and Indigenous societies” (Nicholas 216). In addition to the damage caused by spreading stereotypes and assuming a role of authority to which one does not belong, there is a fundamental rift between how cultural materials are even perceived between two different societies, and this makes the use of such materials troubling – particularly if the two cultures exist in the dichotomy of dominant and dominated, in which the dominant culture has undue power that risks reconfiguring or effacing the cultural significance of said material. As Nicholas points out, that many skeptics of cultural appropriation fail to grasp, “A key point is always that each group has the right to venerate, care for, or use its heritage as they see fit, whether or not this agrees with Western expectations” (219).


Stray thoughts/Things to consider, going forward:

  • The RPGMaker scene – independent games that are steeped in a community that rips and redistributes resources from commercial games (sprites, tilesets, sound bites, etc.) for the use of independent game-makers to create their own RPGs, often as pastiches of the games whose resources they’re using. These resources, often the work of Japanese artists, being reappropriated non-consensually for western game-makers – how might this unique (and, admittedly, fading) trend fit into discussions of cultural appropriation?
  • Games like Child of Light, Earthlock, etc. – western-made “JRPGs”, in which JRPG becomes a genre based less on geography and more on a set of themes, mechanics, and tropes popularized by Japanese role-playing games. These games are often described as “love letters” to the JRPG genre, from those who grew up playing games from Japan and consequently want to emulate a similar game design philosophy that, by their own admission, is uniquely Japanese.


[1] – It is worth noting that some of the games mentioned, like Animal Crossing, Final Fantasy XIV, Skies of Arcadia, etc., were developed in Japan and are thus subject to different cultural outlooks. While this argument doesn’t hold as much water as it once did, with video games quickly becoming a global industry and many of these games being developed with global audiences in mind, it is still worth bearing in mind, particularly as it complicates the dichotomy of dominant/dominated societies.

Cover Art from Views, 2016.
Posted on 2016/10/23 by

Views on the 6: Toronto, Drake, and Multicultural Appropriation

Who is Toronto?

Toronto seems to lack a city-identity that other Canadian cities effortlessly claim. It’s not historic like Quebec, friendly like St John’s, artsy like Montreal, family-friendly like Calgary, or even mild and temperate like Vancouver. Worse still, this ostensible lack of identity seems to draw the ire of pretty much everyone else in Canada; according to the late Jack Layton, hating on Toronto might just be” the national gravitational force holding our country together”    (Nerenberg and Spence 2:57-3:00)

And truthfully, aside from being disdained by other Canadians, Toronto’s most well-known feature is that it isn’t singular or unified at all. Ask a Torontonian for a fact about their city, and they will likely tell you that Toronto is one of the most multicultural cities in the world. If they’re particularly well-versed in Toronto facts, they might go on to tell you that the city is home to more than 2.79 million people who speak more than 140 languages and identify with more than “200 distinct ethnic origins”   (Toronto Facts). Toronto uses these facts to brand itself as a cosmopolitan microcosm of the world at large, as if each small community were a representative of its culture of origin. Rather than one unified city, it is a city of cities and villages.   People are proud that you can borrow books from the public libraries in Cantonese, call city hall in Korean, or watch the Leafs in Punjabi. During the summer months, you can attend food and dance festivals celebrating every continent, and even during the winter, you have the option of ordering in from dozens of countries’ cuisines.  Given this multicultural environment, many Torontonians feel that they are not just a part of the city, but a part of the world. Music critic Leon Neyfakh sums up this attitude, saying “to be influenced by Toronto … is to be influenced by cultures from all over the world” (Peak Drake).

This attitude is embodied by Degrassi alumnus, NBA Ambassador, and self-appointed Toronto spokesman Aubrey Graham, better known as Drake. Drake has become a worldwide sensation thanks to his relatable lyrics, infectious rhythms, incredibly meme-able face, and his unabashed love for “the 6”. Whether it was a calculated business move, or an earnest love, the rapper “has spent most of his career taking personal ownership of Toronto and its brand” (Kelly King of Toronto).  Drake has taken it upon himself to represent the city, and present its multicultural vibes to the world. But when he is speaking for Toronto’s multicultural residents, whose voice is he using? Is there a risk of cultural appropriation?

Multicultural Appropriation?

Intellectual Property lawyer Vanessa Udy defines cultural appropriation as “the unauthorised ‘borrowing’ of expressions, artistic styles, symbolism, myths or know-how from a dominated culture by a member of the dominant culture” (Appropriation).  Udy goes on to explain that this borrowing disconnects people from their culture, perpetuates stereotypes, and trivialises the presence of a living and evolving cultural community. Cultural appropriation can sometimes be easily identified when it’s a clear case of one cultural group disrespectfully using the images and symbols of another, for example, models wearing First Nations head-dresses as a ‘fantasy character’ in a lingerie fashion show. It’s clear to most people that caricaturing and amalgamating multiple cultures into a sexy costume is offensive and reductive.  But in a city like Toronto that aggressively brands itself as “multicultural”, there is a difficult negotiation between taking pride in and taking ownership of different cultural properties and practices. The dominant culture insists that every other culture is a part of it, and it seems that the lines between “mine” and “ours” are very blurred.

As a Torontonian trying to embody the city’s multiculturalism, it makes sense that Drake  is a bit of a chameleon. Part of his appeal, like Toronto itself, is that he doesn’t seem to quite belong to any one group, but crosses over boundaries of culture and class. To almost anyone, he feels like “one of us”.  As one journalist puts it, “if you’re up, he’s up. If you’re street, he’s street. If you’re someone’s uncle or accountant, he can sound like an ambulating TED talk” (Kelly King of Toronto). Drakes ability to code-switch means gives him a unique opportunity to influence and connect to multiple audiences, but is this opportunity exploitative appropriation, or just part of his “authentic” identity?

Drake has been criticized for co-opting Jamaican culture by “dabbling in the dancehall, reggae and Patois” even though he has neither Jamaican nor Caribbean heritage (Taylor Dancehall)   He has also used Yoruba phrases in his songs, despite not speaking that language nor having Nigerian roots, and rapped about growing up in poverty, even though his experience of being broke meant that his mother could “only” afford an apartment (and not a house) in one of the most expensive neighbourhoods in Toronto.    Drake has said that he copies and interprets what he grew up with, and that his aim was to put his own spin on other rappers’ rag-to-riches tales, or other musician’s exotic sounds. He doesn’t see a problem with this at all.  Describing how he’s covered or reworked other artists’ songs and narratives, he’s said: “It’s just, literally, I’ve recognised the potential and the greatness in this piece, and I want to take my stab at it too” (Neyfakh Peak Drake).  He doesn’t feel that he is appropriating the work, but rather acknowledging and building on a tradition.

Drake doesn’t seem to be worried about his incorporation of other cultures, and many of his supporters aren’t either. He’s been described as “a kind of cultural importer-exporter, or translator” who provides the people he copies with “the invaluable boost that accompanies his co-sign” and who has brought “one new sound after another into the mainstream” (Neyfakh Peak Drake). Indeed, rather than being posited as an appropriator, he’s usually seen as a benefactor and patron of less widely-known musicians and musical styles, whom he promotes through his OVO label. In his opinion, he doesn’t appropriate other cultures; he incorporates and represents them. However, it should be noted that while artists like Wizkid (his collaborator on One Dance)  enjoy a bump in notoriety when collaborating with Drake, they don’t necessarily enjoy the same success that he does. “One Dance” has made Drake the most streamed artist on Spotify, but it has made Wizkid known as “Drake’s Nigerian collaborator”.  The borrowing of a new fresh sound (e.g. Wizkid’s well-known-in-Nigeria sound) makes Drake seem like an innovator and a curator, which he is, but what is he trading in return? Is this really a fair transaction?

Final Views on the 6

The city of Toronto IS very multicultural, but that doesn’t mean that every culture is open and belongs to everyone. Critics have said that the city’s “vacant celebration of cultural hybridity veils gendered and racialised power dynamics” (Mahtani 74). For those living in the dominant culture, it’s easy to overlook that using elements of other people’s cultures isn’t sharing: it’s a one-way transaction. The views from the top are sweet: Toronto looks like an exotic smorgasbord of cultures; ready to be sampled at will. But the reality is that things look different from the bottom of the hierarchy. Recent immigrants struggle to fit in, and cultural and language barriers prevent them from accessing services and overcoming challenges. They can’t borrow the dominant culture, and it can be frustrating to be portrayed from another group’s point of view, which may reinforce and perpetuate stereotypes. Rather than helping minority groups to represent themselves, “cultural appropriation dispossesses people of their identity” and effectively silences them. (Udy Appropriation). When Drake speaks in Jamaican Patois, or samples a dancehall beat in one of his number one hits, he is possibly taking that possibility away from the very cultures or people he is imitating. Rather than supporting diversity, he’s effectively suppressing it. Drake may be trying to promote Toronto’s authentic feel and multiculturalism, but he fails to realise that the city’s culture is only “multi” for those at the top. If he had really started from the bottom, he might have known that.


Works Cited

“Diversity”. Toronto Facts. City of Toronto, n.d. Online. 20 October 2016. 

Kelly, Cathal. “King of Toronto.” The Globe and Mail. 13 Feb 2016. Online. 22 October 2016.

Let’s All Hate Toronto. Directed by Albert Nerenberg and Robert Spence. Elevator Films, 2007. Online.

Mahtani, Minelle. “Interrogating the Hyphen-Nation: Canadian Multicultural Policy and ‘Mixed Race’ Identities. Social Identities, Vol 8 No 1. Taylor and Francis: 2002 . Online. 18 Oct 2016.

Neyfakh, Leon. “Peak Drake”. The Fader. 24 Sept 2015.  Online. 19 Oct 2016.  

Taylor, Sharine.  “Dancehall is Pop Now, but We Can’t Let Pop Stars Steal Dancehall”. Noisey. 27 Jul 2016. Online. 18 Oct 2016.

Udy, Vanessa. “The Appropriation of Aboriginal Cultural Heritage: Examining the Uses and Pitfalls of the Canadian Intellectual Property Regime.” _IPinCH – Intllectual property Issues in Cultural Heritage: Theory, Practice, Policy, Ethics._ November 19, 2015.

Posted on 2016/10/21 by

Knitpicking over Ownership: Cultural Heritage Ethics and the Coast Salish Cowichan Sweater

Aided by the advent of the internet, knitting has enjoyed a resurgence over the past two decades, particularly among younger generations drawn to the craft as a stress-relieving and potentially eco-friendly pastime. The growing number of knitting blogs and the popularity of the online platform Ravelry allows patterns and objects to circulate on- and off-line with ease, generating both economic and cultural capital for a number of craftspeople and communities.

Like recipes and similar artisanal practices, knitting patterns and knitted objects frustrate easy classification with respect to their position as intellectual property under the current regime of copyright law. As a tangible medium, the paper or PDF pattern is covered by copyright as an image, but the process outlined in either the visual knitting charts or the technical descriptions—which themselves often repeat a vocabulary of knitting terms understood by a particular interpretive community—is not eligible for protection under Canadian copyright (Murray & Trosow 171). Although Susan Belyea addresses glassmaking in particular when she states, “we’re all working with the same tools” (qtd in Murray & Trosow 170), the claim to technical universality extends to numerous artisanal practices, including knitting, which, as a process, is comprised of merely two fundamental stitches, the knit and the purl.

As an object, it is difficult to even begin to untangle the question of who owns a piece of knitwear, given that it is indebted to a number of interwoven components that extend beyond the aesthetics produced by the pattern, such as fiber content, dye lot, needle size, product size, knitting technique, seaming technique, and gauge among other elements. A knitter may look at an existing scarf pattern that specifically calls for bulky weight yarn and adapt it to whatever they have on hand. Although this new scarf is indebted to the original bulky scarf, it is fundamentally its own object and, unless this new user re-uploads the original pattern with notes scrawled over it in pencil, no copyright infringement has occurred.

While such a system greatly benefits craftspeople who “envision their artistic practice in terms of sharing and giving” (Murray & Trosow 168), it produces a climate wherein cultural and aesthetic appropriation—though not explicitly sanctioned—is not prevented or regulated by copyright legislation. Overwhelmingly at risk of cultural appropriation under Canada’s current system are First Peoples, whose words, imagery, and patterns have long been defined and subsequently appropriated by the dominant colonial culture, which has “negative impacts on the health, wellbeing and capacity for economic self-sustenance of Aboriginal peoples” (Udy). This probe examines the fraught relationship between an influence-sharing craft community and the ethics of appropriation of cultural heritage through a study of Coast Salish Cowichan sweaters.

A Brief History of Coast Salish Knitting

The Coast Salish are a group of ethnically and linguistically related First Peoples along the Pacific Northwest coast, living in what Canadian colonizers call British Columbia, as well as the states of Washington and Oregon. In an article titled “The Coast Salish Knitters and the Cowichan Sweater: An Event of National Historic Significance,” Marianne P. Stopp provides a detailed account of the history of Coast Salish knitting, the most significant moments of which I summarize in the following paragraphs.

Long before European colonization, Coast Salish women wove mountain goat hair, dog hair, and plant fibres into valuable trade commodities, such as ceremonial blankets. Weaving was achieved by twisting spun fiber strands into each other using fingers. Until the 1970s, all wool was prepared by hand, a process that took seven months to complete, beginning with the shearing of the sheep and followed by numerous washings, dryings, and spinnings in order to make the yarn unusually durable, weatherproof, and warm.

In the 1860s, the Coast Salish women were introduced to two-needle and multiple-needle knitting by the sisters of the Catholic missions. Through a process of unravelling settler sweaters and copying their construction through trial and error, the Coast Salish reproduced the Fair-Isle style of knitting presented to them. Retaining their unique wool preparation process, the Coast Salish paired aspects of settler knitting with common motifs and symbols often found in their wordworking and basketweaving.

The entwining of traditional Coast Salish wool spinning with European knitting styles and techniques resulted in a distinct sweater that became known as the Cowichan, and demand for the quality garment was high. Although profit margins for the knitters were minimal, it nevertheless provided Coast Salish women with opportunities for economic stability:

Women were introduced to wool-working by the time they were seven or eight years old. This practice was borne partly out of economic necessity, but it also aligned with traditional Coast Salish practices of training young girls to become skilled textile producers and to live productive lives. (Stopp 15)

In a detailed study of Coast Salish knitting, Sylvia Olsen notes that, when asked how a family retained economic stability until the 1980s, most Coast Salish people would answer, “My mother knit” (7). Knitting was not only a way to make ends meet but also an important avenue for women’s agency.

Historic Cases of Appropriation

The 2010 Vancouver Olympics were rife with instances of appropriation of First Peoples’ culture. The games not only appropriated and misused depictions of sacred knowledge, such as the inukshuk, but also “commercialized products based on traditional knowledge or expressions of culture, without sharing the profits with the community from which such knowledge originated” (Udy). When the Hudson’s Bay Company revealed their Olympic clothing line, they were critiqued for appropriating the Cowichan aesthetic while outsourcing production to a third party who used cheap materials and machine-based knitting. To add insult to injury, the Bay then trademarked this inauthentic design.

The Bay is far from being the only group to engage in appropriation of the Cowichan sweater: Roots, in collaboration with Mary Maxim and Ralph Lauren have also released lines of sweaters heavily inspired by Coast Salish design, and popular yarn brands, such as Patons and Pierrot yarns, offer patterns for Cowichan sweaters that can be downloaded for free or for a minimal fee in order to entice knitters to purchase their particular yarn.

Moreover, a Ravelry search returns 202 patterns that define themselves as Cowichan or Cowichan-inspired, the majority of which are not posted by Coast Salish users. These patters serve a particular economic function related to cultural capital in the interpretive community of knitters who find their patterns online. If a knitter is introduced to a designer through free patterns that are easy to follow and yield promising results, the consumer is likely to purchase their paid patterns as well.

Online knitting platform Ravelry yields 202 results for the search term “Cowichan.”

The ease of access of such patterns allows thousands of knitters not only to begin making Cowichan sweaters for themselves but also for others in either the gift economy of craftwork or for profit—depending on the pattern’s license and /or whether knitters choose to adhere to such a legally unenforceable license. Using cheap materials from the local Michael’s rather than hand processing the yarn themselves, knitters saturate the market with appropriative knockoffs that are cheaper to produce and cheaper to ship to consumers.

Unravelling Ethical Knots

The rights of peoples with respect to cultural heritage goods pose new and pressing challenges in terms of balancing the exercise of intellectual properties with individual freedoms of creativity, collective rights, and international human rights obligations. (Coombe & Aylwin 201)

Frustratingly, nothing in the appropriative practices discussed above is actually illegal under copyright law. From a perspective grounded solely in intellectual property rights, neither the Bay nor the individual users on Ravelry posting Cowichan-inspired sweaters have transgressed any obvious legal lines.

In an article on Indigenous Cultural Heritage, George Nicolas considers how cultural “borrowings” (214) are justified as “an appreciation of the great ‘vanished race’” (214), even though their cultural heritage and expressions are still critically important in their extant culture. On the other side of the coin is dominant culture’s insistence on enforcing their own understanding of what aspects of a given marginalized people’s culture is authentic.  The popularity of Cowichan sweaters led non-native consumers to expect a certain aesthetic associated with the garment, namely that they would be made with undyed wool. When the Coast Salish women were introduced to brightly colored cotton and acrylic yarn and used this yarn in their sweaters, the designs did not sell because the sweater no longer conformed to the aesthetic expectation imposed upon the Coast Salish peoples by the settler consumer. In other words, it upset the colonizer’s notion of a distinct “Native brand.”

Of course, the obvious element undermining accusations of Western cultural appropriation of First Peoples’ craftwork that this probe has so far danced around is the fact that cultural productions are constantly being inspired and influenced by what came before, particularly in the knitting community where patterns are continuously being exchanged, modified, re-exchanged, and re-modified. The Coast Salish women adapted the settlers’ Fair Isle knitting style into the Cowichan sweater through a process of copying, and introduced their wool and spiritual symbols into an existing process. By the same logic that reproductions of the Cowichan sweater can be called appropriative, the Coast Salish can, theoretically, be accused of appropriating an existing design themselves. The prevailing attitude that knitting patterns and techniques cannot be owned is, paradoxically, that which legitimizes Coast Salish knitting as a unique variation on the craft even as it also legitimizes reproductions.

Nevertheless, “cultural heritage is the result of a dynamic, expressive, and productive practice of dialogue,” argues Rosemary Coombe and Nicole Aylwin (203). The difference therefore, between Coast Salish development of the Cowichan sweater and the Bay’s appropriation of the product is that the former were engaged in a process of creating through dialogue—a non-consensual dialogue, I might add, whereby settlers “educated” Coast Salish women in catholic missions. Rather that present Fair-Isle knitting right back to the colonizer, the Coast Salish women wove their own pre-existing culture into the designs. Conversely, the Bay branded their sweaters as being Cowichan when, in fact, it neglected much of the processes which make Cowichan sweaters distinctive—that is to say, the fact that the sweaters are handmade and one of a kind.

Face Of Native is a small indigenous business that produces and ships authentic Coast Salish goods worldwide.

Moreover, the Cowichan sweater is more than just a knit object. As Nicholas argues, “many Indigenous peoples perceive their world as one in which material objects are more than just things, and in which ancestral spirits are part of this existence, rather than of some other realm” (216). The fibre production that was an important component of the original Cowichan sweaters was part of the fabric of Coast Salish spirituality: “The action of spinning the wool into yarn is presumed to have held transformational elements [and] goat hair and goat hair blankets were central to spirit quest dances” (Stopp 13). By calling a sweater produced by overseas machinery a Cowichan sweater, the Bay fails to account for the deeply spiritual processes involved in the authentic garments’ production. It also fails to acknowledge the ways in which, as previously mentioned, the sweater held a central place in the Coast Salish economy. To call a knit object Cowichan is therefore to imbue it with historical, cultural, and economic significance unique to Coast Salish heritage.

Finally, for close to a century, the “Indian Act” made it illegal for First Peoples to practice their traditions in an effort to assimilate the First Peoples to colonial culture (Udy). Forced into residential schools and subject to assimilative policies, knitting the Cowichan sweater was a subversive act; although colonial consumers implicitly sanctioned the practice through their continuous purchase and fetishization of the sweater, the knitting practice—imbued with traditional and spiritual significance—was itself illegal, and thus the sweater’s continual production a refusal to be silenced.

It is a difficult thing to disentangle the ethics of appropriation when it comes to something as unregulated by legislature as knitting patterns and knitted objects, and thinking about this quandary likely raises more questions than answers: As descendants of the colonizer, what are the ethics of wearing a Cowichan sweater? What if it was purchased from a Coast Salish artisan? What about knitting a Cowichan sweater while using a pattern purchased by someone of Coast Salish heritage? Copyright law fails to provide an answer that meaningfully addresses the cultural history buried beneath these questions.

Cultural oppression and racism against the Coast Salish and other First Peoples are not merely a stain on Canadian history, but an ongoing issue that continues to have a negative impact on these communities. It is therefore vital that craftspeople and consumers of hand-crafted objects remain vigilant over their own practices and refuse to contribute to the ongoing disenfranchisement of these communities by claiming ownership over cultural property they have no claim to.

Resources exist for those who wish to buy an authentic Cowichan sweater and ensure that the economic and cultural capital is awarded to the right people: Cowichantribes makes accessible the contact information of numerous Coast Salish craftspeople, and Face of Native, a small Indigenous business based in British Columbia, ships high quality authentic Coast Salish goods worldwide, while ensuring that artisans are paid fairly for their work.

Works Cited

Coombe, Rosemary and Nicole Aylwin. “The Evolution Of Cultural Heritage Ethics Via Human Rights Norms.” Dynamic Fair Dealing: Creating Canadian Culture Online. Ed. Rosemary J. Coombe, Darren Wershler, and Martin Zeilinger. University of Toronto, 2014. 201-12.

Murray, Laura and Samuel Trosow. Canadian Copyright: A Citizen’s Guide. 2nd ed., Between the lines, 2013.

Nicholas, George. “Indigenous Cultural Heritage in the Age of Technological Reproducibility: Towards a Postcolonial Ethic of the Public Domain.” Dynamic Fair Dealing: Creating Canadian Culture Online. Ed. Rosemary J. Coombe, Darren Wershler, and Martin Zeilinger. University of Toronto, 2014. 213-24.

Olsen, Sylvia. “‘We Indians Were Sure Hard Workers’: A History of Coast Salish Wool Working.” MA thesis, University of Victoria, 1998. University of Victoria Libraries, http://hdl.handle.net/1828/1340. Accessed 17 Oct. 2016.

Ravelry. 2008. ravelry.com. Accessed 17 Oct. 2016.

Stopp, Marianne P. “The Coast Salish Knitters and the Cowichan Sweater: An Event of National Historic Significance.” Material Culture Review, vol. 76, Fall, 2012, https://journals.lib.unb.ca/index.php/MCR/article/view/21406/24805. Accessed 17 Oct. 2016.

Udy, Vanessa. “The Appropriation of Aboriginal Cultural Heritage: Examining the Uses and Pitfalls of the Canadian Intellectual Property Regime.” Intellectual Property Issues in Cultural Heritage: Theory, Practice, Policy, Ethics, 19 Nov. 2015. http://www.sfu.ca/ipinch/outputs/blog/canadian-intellectual-property-regime/ Accessed 17 Oct. 2016.

Posted on 2016/10/21 by

Vaporwave and Appropriation

Siva Vaidhyanathan’s “Hep Cats and Copy Cats: American Music Challenges the Copyright Tradition” provides us with rich starting points for thinking about American music history and its frequently fraught relationship with copyright mechanisms. In particular, I find his treatment of rap’s history to be especially nuanced, with important attention paid to Dick Hebdige’s work on Jamaican “versioning” in the 1960s and DJ Kool Herc’s use of breaks. We should also keep in mind, however, that Copyrights and Copywrongs was published in 2001, and, as such, accounts for only part of the story that has led us to our current historical cultural moment. In the fifteen ensuing years – at least a few millennia in internet years – we’ve seen a series of cases that have served to complicate music copyright discourse and notions of fair use even more. From Danger Mouse’s The Grey Album and “Grey Thursday,” through Gregg Gillis’ rampant sampling under the Girl Talk moniker, the plethora of culture now available to us with a few clicks and keystrokes and the resulting remix culture have arguably rendered a case like Grand Upright Music, Ltd v. Warner Bros. Records Inc., that Vaidhyanathan analyzes in his book, somewhat alien to us.

As an illustration of how culture has morphed in ways that further complicate some of the issues addressed by Vaidhyanathan in his text, I would like to introduce a recent internet-born musical genre into the conversation: vaporwave. Although to seek a rigid definition of the genre seems to run against its ironizing, ad hoc-ly theorized ethos, vaporwave can be roughly characterized as a style of music, arising around the turn of this decade, propagated by a loosely defined, largely pseudonymous group of creators/collaborators across Tumblr, YouTube, Bandcamp, and various music subreddits. Sonically, as Adam Harper puts it in a genre overview from 2012, “the typical vaporwave track is a wholly synthesized or heavily processed chunk of corporate mood music, bright and earnest or slow and sultry, often beautiful, either looped out of sync and beyond the point of functionality or standing alone, and sometimes with a smattering of miasma about it.” (“Comment: Vaporwave and the Pop-Art of the Virtual Plaza”). Aesthetically, its iconography clusters around a fetishistic treatment of 1980s and 1990s consumer culture – particularly, and frequently, the utopian futures imagined in period technology advertising – along with, among many other signifiers, “roman busts, tropical sunsets, low-quality graphics, and Japanese text” (Hardeman).

The cover of Macintosh Plus’ 2011 フローラルの専門店 (Floral Shoppe), a seminal early vaporwave release. https://upload.wikimedia.org/wikipedia/en/e/e9/Floral_Shoppe_Alt_Cover.jpg

Ascertaining the intentions behind vaporwave producers’ specific sonic and aesthetic choices has proven to be a fraught critical endeavor in discursive spaces associated with the genre online. Harper, in 2012, sees a clear through-line between the genre and the accelerationist philosophy of thinkers such as Nick Land, whereas others, such as Michelle Lhooq, have framed it more generally within a punk lineage: “vaporwave is actually ‘punk,’ in that it’s driven by a subversive political objective: undermining the iron grip of global capitalism… by exposing the alienating emptiness underneath its uncanny sheen” (“Is Vaporwave The Next Seapunk?”). Scott Beauchamp, writing more recently this summer in Esquire, falls on the side of Lhooq’s analysis, arguing, “vaporwave has obvious antecedents in American music and culture. And although it might mimic the aesthetics of capitalism, the anti-place of the American mall, and the sounds of a tranquil permanent present, it has more in common with punk. It’s political” (“How Vaporwave Was Created Then Destroyed by the Internet”). Others shy away from the overtly political characterization of the genre as “appropriative critique,” feeling that this is reductive and has only been undertaken because it “eases the [genre’s] ‘path to legitimacy’” (Noack).

What does all of this have to do with Vaidhyanathan and the ideas explored in “Hep Cats and Copy Cats”? Vaporwave is generally conceived of as having two “founding documents” (Beauchamp) from around the turn of this decade: Chuck Person’s Eccojams Vol. 1 (2010) and James Ferraro’s Far Side Virtual (2011). Each project, I would like to argue, is fascinating to consider within the historical cultural context established by Vaidhyanathan, and offers us unique opportunities to query our present moment in light of issues identified by him.

Eccojams Vol. 1 is actually a pseudonymous cassette release by acclaimed electronic producer Daniel Lopatin who typically releases material under the name Oneohtrix Point Never. The basic practice of “eccojamming” is intentionally quite simple[2], consisting of the isolation of a small excerpt from a pop song, which is treated with an enormous amount of echo/reverb, and then looped and paired with accompanying visuals sourced from YouTube (Reynolds 81). The most “famous” of Lopatin’s eccojams is an excerpt from art pop singer Chris de Burgh’s hit “The Lady In Red” entitled “nobody here.” For just over two minutes, an isolated section of de Burgh singing “There’s nobody here” is looped over low-resolution graphics of rainbow road – sourced from a 1983 commercial for a laser disc game (Dummy Magazine Staff) – itself overlaid atop an anonymous and impersonal visual of a skyline. Although it lacks an accompanying “official” visual like “nobody here,” a deeply nostalgic personal favourite of mine from Eccojams Vol. 1 is simply known as “A3,” an eccojammed version of a chorus excerpt from JoJo’s 2006 hit “Too Little Too Late.” According to the critic Simon Reynolds, my pangs of nostalgia may not be completely arbitrary responses to Lopatin’s Person project, as he interprets it as “relat[ing] to cultural memory and the buried utopianism within capitalist commodities, especially those related to consumer technology in the computing and audio/video entertainment area” (81).

Ferraro’s Far Side Virtual is very different from Lopatin’s Eccojams, but still a seminal source text for the development of the vaporwave genre. Sonically, it is significantly different, consisting of 16 tracks – initially intended as 16 ringtones (Red Bull Music Academy) – of airless, uncannily melodic music bearing discomforting, quasi-sensical names like “Global Lunch,” “Palm Trees, Wi-Fi and Dream Sushi,” and “Condo Pets.” Take “Solar Panel Smile” as an example, where Ferraro conducts a 4-minute mini ensemble comprised instrumentally of the Nintendo Gamecube “Menu Theme,” the Windows XP “Shutdown Sound,” the Nintendo Wii “Startup Sound,” and Garageband preset instruments. According to Harper, Far Side Virtual “pastiched techno-capitalist stock promotional music for the era of the personal computer and of bum-bags full of Apple devices, forcing us to confront the kitsch that’s used to make us excited about brands and their technological possibilities” (“Comment: Vaporwave and the Pop-Art of the Virtual Plaza”).

As can hopefully be intuited at this point, Lopatin and Ferraro’s work serve to contrast our cultural moment greatly with some of the cases treated by Vaidhyanathan in his text. As he argued back in 2001,

[t]here could be room for unauthorized sampling within American copyright law. It could and should be considered fair use. Digital samples are more often than not small portions of songs. These portions are being used in completely different ways in the new songs. Because they are not working in the same way as in the original song, they are inherently different from their sources. (145)

This holds largely true of Lopatin and Ferraro’s sampling choices across these two projects,[3] but, more broadly, what is perhaps more interesting to contemplate in considering these remarks is how little fair use rhetoric has informed this movement of cultural creation on the internet. Perhaps this can be explained, in part, by vaporwave being, for the large part of its lifecycle, niche or small-scale enough as to not attract significant litigation as a result of its works. Or, as another explanation, perhaps litigation has not been pursued – and, consequently, fair use not been invoked – because we live in a different age of savvier, more cool-attuned brands[4] and rights holders that are eager to leverage associations with hip nascent underground microtrends. In this world, JoJo is no Gilbert O’Sullivan to Chuck Person’s Biz Markie, vociferously protesting the minuscule snippet of her eccojammed vox. Instead she’s sitting back, maybe reveling in, and perhaps furiously consulting on how to, in some way, monetize, her unanticipated fifteen microseconds of microfame. That is, of course, if she is aware of it at all.

One last idea that I want to put vaporwave in dialogue with from this week’s readings is the concept of appropriation, as defined early on in Rosemary J. Coombe and Nicole Aylwin’s “The Evolution of Cultural Heritage Ethics via Human Rights Norms.” As Coombe and Aylwin outline,

when creativity involves a practice described as appropriation, an assertion is being made that a text has been moved or removed from its authorizing context, or that it has, in some significant sense, been taken (Meurer and Coombe 2009). In some cases, this decontextualization may be deliberately and critically intended – [1]to challenge the fields of meanings in which the object properly figures, [2]to assert an alternative ownership over it, and/or [3]to consider the importance of other realms of connotation in which it might signify. (201-2)

Clearly, appropriation is also very useful to bring into any consideration of vaporwave – indeed, the three intentional decontextualizations that Coombe and Aylwin list in their last sentence above could each be posited as motives underlying the vaporwave ethos, if such a thing even exists. But, what I want to highlight in particular, here – via Lopatin’s, Ferraro’s and other vaporwave artists’ work – is how muddied ascribing intentionality to works can become, especially works born out of, and elaborated on/through the digital ether. It’s also why, I would like to argue, we haven’t seen nearly as much outrage at vaporwave’s appropriation of Japanese characters and signifiers as in other cases of cultural appropriation in recent years – whatever intentionality exists behind their use, it is too oblique and distancing to spark direct offence.

This applies, similarly, to Vaidhyanathan’s discussion, near the end of “Hep Cats and Copy Cats,” of copyright infringement defenses won on the grounds of parody. Following a brief discussion of 2 Live Crew’s “Pretty Woman,” he states, “[f]or a work to qualify as a parody, it must make some critical statement about the first work. It’s not good enough to be just funny. The critical statement must be directed at the source text itself” (146). Here again, I have a feeling that vaporwave might fail this intentionality test, as it rarely, if ever, feels entirely parodic. As Lopatin puts it in the liner notes to a 2009 DVD release, Memory Vague, “no commercial work is outside of the reach of artistic reclamation” (quoted in Reynolds 81). To me, the most oddly affecting vaporwave music works at once to ironize and sentimentalize its source material, complicating any kind of clear parodic interpretation.

As Coombe and Aylwin remark, “[t]he tendency to treat all cultural forms in digital media ecology as mere ‘information’ enables everyone to access and make use of cultural goods” (201) – vaporwave is a specific example of this idea borne out online in all of its confused, splintered polyphony. I hope by bringing it, and several of its most well known works into this conversation, I have provided a contemporary digital context in which to discuss ideas such as Vaidhyanathan’s, Coombe and Aylwin’s, and, more broadly, many of the others from our course. To me, it is exciting to see issues that we discuss in class playing out culturally around us online in something close to real-time.

[1] As with any cultural micro-genre/trend operating on the internet in the age of postmodernism, there has been significant argument over the last several years around whether vaporwave, as a genre category, is even still alive/operative. The movement’s “death” was being called as early as three years ago by some of its practitioners.

[2] When asked about the Eccojams release and its relation to vaporwave in a Reddit AMA from October 2013, Lopatin aligned eccojamming, provocatively, with folk practice, remarking, “im glad people like the eccojams stuff, i always hoped it would be something people would just do — its kinda folky by nature” (“I’m Daniel Lopatin, pka Oneohtrix Point Never. AMA”).

[3] Where Vaidhyanathan’s length stipulation becomes less defensible is in a consideration of slightly later vaporwave works, such as PrismCorp Virtual Enterprises’ Home™, which seemingly repurposes dated corporate muzak tracks wholesale, or, at least, sounds very convincingly like it could be doing so.

[4] If this is true of brands in particular, this, in itself, would be a significant attack on any of vaporwave’s (assumed) political efficacy, demonstrating, yet again, capitalism’s insidious, seemingly limitless capacity to absorb and resell any critique of it. Curiously, one of the more recently theorized death knells for the genre came when Tumblr and MTV unveiled rebranding efforts that bore striking resemblances to vaporwave aesthetics.

Works Cited

Beauchamp, Scott. “How Vaporwave Was Created Then Destroyed by the Internet.” Esquire, 18 Aug. 2016. http://www.esquire.com/entertainment/music/a47793/what-happened-to-vaporwave. Accessed 18 Oct. 2016.

Coombe, Rosemary J. and Nicole Aylwin. “The Evolution of Cultural Heritage Ethics via Human Rights Norms.” Dynamic Fair Dealing: Creating Canadian Culture Online. Eds. Rosemary J. Coombe, Darren Wershler and Martin Zeilinger. Toronto: University of Toronto Press, 2014. 201-12.

Dummy Magazine Staff. “2010: Why Oneohtrix Point Never Is Our Artist of the Year.” Dummy Magazine, 31 Dec. 2010. http://www.dummymag.com/Features/2010-why-oneohtrix-point-never-is-our-artist-of-the-year. Accessed 18 Oct. 2016.

Hardeman, Steven Lewis. “Our Weird Internet: Understanding Vaporwave.” Odyssey Online, 19 Sept. 2016. https://www.theodysseyonline.com/weird-internet-understanding-vaporwave. Accessed 18 Oct. 2016.

Harper, Adam. “Comment: Vaporwave and the Pop-Art of the Virtual Plaza.” Dummy Magazine, 12 July 2012. http://www.dummymag.com/features/adam-harper-vaporwave. Accessed 18 Oct. 2016.

Lhooq, Michelle. “Is Vaporwave The Next Seapunk?” Thump, 27 Dec. 2013. http://thump.vice.com/en_us/article/is-vaporwave-the-next-seapunk. Accessed 18 Oct. 2016.

Lopatin, Daniel. “I’m Daniel Lopatin, pka Oneohtrix Point Never. AMA.” Reddit, 9 Oct. 2013. https://www.reddit.com/r/Music/comments/1nzjqm/im_daniel_lopatin_pka_oneohtrix_point_never_ama/ccnk6x0/. Accessed 18 Oct. 2016.

Noack, Tristan. “Vaporwave: Completely Vapid?” KCPR.org, 28 Apr. 2016. http://kcpr.org/2016/04/28/vaporwave-completely-vapid/. Accessed 18 Oct. 2016.

Red Bull Music Academy. “Interview: James Ferraro and His Music Multiverse.” Red Bull Music Academy Daily, 6 Mar. 2012. http://daily.redbullmusicacademy.com/2012/03/james-ferraro-fireside-chat. Accessed 18 Oct. 2016.

Reynolds, Simon. Retromania: Pop Culture’s Addiction to Its Own Past. New York: Faber and Faber, 2011.

Vaidhyanathan, Siva. “Hep Cats and Copy Cats: American Music Challenges the Copyright Tradition.” Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2001. 117-48.

Posted on 2016/10/13 by

Other People’s Preserves: The Citation Economies of a Canning Blog

Unlike most methods of preparing and cooking food, preserving — the practice of canning, pickling, fermenting and drying food — allows for the long-term storage seasonal produce. This temporal dimension specific to preserving has its roots in “historical” practice: these processing methods pre-date the widespread availability of refrigeration technologies, agro-industrial supply chains, and the perpetual harvest of modern supermarkets. The practice relies on biological and thermodynamic processes to stabilize perishable food. As such, while recipes for jams, jellies, pickles and chutneys may vary in terms of their ingredients and flavor profile, processing methods remain consistent: high sugar content for preserves, a low pH for pickles; processing in a hot water bath or pressure cooker; and a good seal. To a certain extent, these recipes change little over time and prove resistant to changing culinary tastes. At the same time, changing USDA food safety regulations and technological innovation (like pressure cookers and the Kerr canning ring) drive republication. The favored guide, the Ball Blue Book Guide to Preserving was first published in 1909 and is currently on its 37th edition.

As a descriptive and instructional form of writing, recipes pose a particular problem in terms of intellectual property vis-à-vis their relationship to real objects. Due to their short length and shared techniques, recipes tend to repeat formal characteristics and whole segments of text. In practice, any deviation from an existing recipe that results in a new object can be claimed as a new recipe. Apple cider vinegar will be substituted for white vinegar in pickles or honey for refined sugar in jams. Two recipes will be combined to create a new variation on the iconic red pepper jelly. A French compote recipe will be updated to American food safety standards. For food blogs and online recipe caches, this issue is compounded by the medium’s lack of fixation. Ostensibly, the blogging platform serves as the “tangible medium” described by copyright’s fixation requirement (Murray & Trosow 42), however the shifting position or that of a blog entry on an infinitely scrolling page or of a blog in a search index confers a sense of impermanence on these works. At the very least, this impermanence impedes a user’s ability to locate and exploit the entry over time. To compensate, canning blogs operate within a citation economy where authors routinely link a recipe with previous entries. This practice reveals both a recipe’s genealogy and a network of recipe producers.

“Internet links are one endless chain of footnotes, only handier. Blogs invite their readers to trace back through their sources like any good academic historian.” (Murray 177-78)


Consider the linking practices of a popular canning blog, Food in Jars, run by Marisa McClellan. In her Red Currant Jelly recipe, McClellan refers to a published recipe book, Pam Corbin’s The River Cottage Preserves, as a source for specialized knowledge for processing hard-to-find fruit in North America, in this case the red currant. As a published author of several canning books, McClellan uses links in her recipes to refer readers to other equally authoritative sources or to similar recipes she has published on other platforms (such as the recipe for Spicy Peach Barbecue Sauce on Ball’s canning blog, Freshly Preserved Ideas, or the Garlic Dill Refrigerate Pickles tutorial and recipe she wrote for The Kitchn).


In addition to these references, McClellan also provides her readers with a “weekly roundup” of links: new recipes, affiliate links, and canning inspiration. These lists consist of 10-12 recipes found on other canning blogs, lifestyle blogs, or a publisher’s site; or recipes digitally reproduced from print collections. Occasionally, one of these links will come from a posted recipe in which McClellan is referenced by an author, as is the case here and here.

In her chapter on the gaps and overlaps between citation economies and copyright law, Laura Murray characterizes the citation system used by bloggers as a “reputation economy” in which cultural capital is bestowed on identified “sources” through hypertext links (174). Cultural capital, rather than economic capital as in the copyright system, because attribution relies on free, cited circulation and “does not result in direct payment” for the source (174). In this sense, citation systems intersect and interact with market systems but function independently of intellectual property law (174-75). Her use of blogging and hypertext practices as examples of a citation economy is interesting considering how monetized blogging has become. If attribution does not directly result in monetary compensation for the original source, monetized linking practices can directly influence the income of the blogger, as well as benefit their reputation.

Search Engine Optimization (SEO) theory — the set of rules through which bloggers “understand” the algorithms running search engines and could affect their placement on search results — dictates that an website’s influence and authoritative value is governed in part through the number of third-party websites which link back to the site. Whether or not this is the case, this aspect of SEO has shaped the way in which blogging communities relate to one another — driving a “gifting” or exchange economy. In this economy, bloggers are encouraged to write guest posts to other sites and link to peer blogs through profile pieces and weekly link round-ups to encourage these blogs to “link back.” Furthermore, professional bloggers have monetized these peer-to-peer relationships: guest posting has turned to paid ambassadorships or publicity; links and recommendations have turned into affiliate links, wherein the author is remunerated for reader click-throughs and purchases; and blog posts are interspersed with native advertising and sponsored content.

Effectively, within this “reputation economy,” it becomes impossible to discuss a citation economy divorced or extracted from a market economy as Murray argues. The monetization of blog citations moves beyond the co-opting of a citee’s authority by the citer and highlights the paradox of Bensman’s 1988 essay on citation economies: whether one considers the ideological or economic context a factor in the construction of citation networks, there is no unbiased perspective from which to ascertain their possible objectivity through our own implication in these systems. (Or, in his words: “Whether a theme is proven or disproven by a self-conscious distortion of documents referred to in a text is not merely a matter of technical proficiency, but one which strikes at the heart of the entire scholarly enterprise. But when ideologies are involved, judgment as to what constitutes an accurate representation of the evidence and of particular sources, is itself conditioned by the ideologies and ideological causes which may lie outside of scholarly proficiency and even self-conscious dishonesty” (449).)

At the heart of this concern, is the relationship between author and the field of production — and its expression through citation networks. What troubles Bensman on a practical level is an author’s ability, through these citation networks, to misrepresent a field of knowledge through “elitist” references or “deviant” citations. Underlying this concern is the troubling realization that a field of knowledge is a virtual construction produced by citation practices — the “social construction of reality” of a scholarly field.

“Yet because of the range of choices available to the citer (and the ongoing structure of citing behavior) this input [citation] can determine, if only in part, the output, the continuously emerging structure and culture of a field, also seen as a social reality.” (443-44)

Bensman’s article is an interpretive declension of the relationship between an individual author and a field of knowledge through the lens of citation practices. For him, the vertical or horizontal stratification of a field and legitimation is not solely produced by citations, but by ideological factors and personal motivations in a biased network of shifting relationships.

Interestingly, Bensman does not use the term “network” to describe the “input” and “output” of citations (nor is he gesturing towards actor-network theory in the way that I’m implying), but he does apply the term to the “social networks that exist in a field,” in the same sense as “networking” that in his understanding functions similarly to the “academic structures” or “‘party’ lines” that affect an author’s citation economy. Writing thirty years later, Murray draws the comparison between academic citation and networked hyperlinks in her essay: “Internet links are one endless chain of footnotes, only handier” (Murray 2008 177). What does it mean, then, to say that citation economies function conceptually as linked networks in academic writing?

My interest in discussing the citation economies of a canning blog has been to consider — along the lines of Bensman’s problematization of the relationship between individual author and field of knowledge — how the remediated relationship between author, publisher and platform affects citation practices. Murray’s comparison of academic citations to hyperlinks makes an example like the canning blog so compelling as the mediated network can be followed, travelled, and interrogated. However, as a platform blogging remediates the relationship between author and publisher since authors also fulfill the roles of publishers. In the case of Food in Jars, McClellan determines the form, serialization and style of all content on her blog and negotiates her own relationship to advertising interests as well as produce content. This rearticulation allows the singular author full control over the citation networks published on her blog. It is this authorial-editorial control that sets the canning blog or lifestyle blog apart from publications such as the culinary section of other digital media.


Bensman, Joseph. “The Aesthetics and Politics of Footnoting.” International Journal of Politics, Culture, and Society 1.3 (1988): pp. 443-70.

Murray, Laura. “Plagiarism and Copyright Infringement: The Costs of confusion.” In Originality, Imitation, and Plagiarism, edited by Caroline Eisner & Martha Vicinus. Ann Arbor: University of Michigan Press, 2008. pp. 173-180.

Murray, Laura & Samuel Trosow. Canadian Copyright: A Citizen’s Guide. 2nd Rev. Edition. Toronto: Between the Lines, 2013.

Posted on 2016/10/12 by

Mosaic and Collage in Jonathan Lethem’s “The Ecstasy of Influence”

Jonathan Lethem’s essay “The Ecstasy of Influence”—a tissue of appropriated passages from writers ranging from Sandra Day O’Connor to Mary Shelley—bears the subtitle “a plagiarism,” but it is an odd word to describe the piece. Reading through the assiduous inventory of references in Lethem’s closing “Key: I Is Another” (68), the reader recognizes that the one thing “The Ecstasy of Influence” is not is an act of plagiarism, at least in the usual sense of the term, such as in the definition offered by Laura Murray: a “use or reuse of [another’s] words or ideas without acknowledgement” (174, original emphasis). At one point in his notes, Lethem reflects on what would have been the case in the text “had I been an ordinary cutting-and-pasting journalist” (70), and indeed it is clear that he is doing no mere cutting and pasting here; he even includes a “Key to the Key” (71) in which he acknowledges those who have had the mere idea of a text collage before him, among them Walter Benjamin in his unfinished Arcades Project. Lethem writes that “[a]ny text is woven entirely with citations, references, echoes, cultural languages. . . . The citations that go to make up a text are anonymous, untraceable, and yet already read; they are quotations without inverted commas” (68), but of course there is nothing “anonymous” or “untraceable” at all about the passages borrowed here.

Lethem places his essay in the context of the multivocal works of pastiche that it discusses, framing the work itself as likewise “ecstatically” reveling in and integrating the catholic context of the writers who have influenced it. He writes of the “‘open source’ culture” (60) of jazz and blues, the “allusion and sublimated collaboration” that are the “sine qua non of the creative act” (61), and the problematic ways in which intellectual property figures in both the “market economies” and “gift economies” (65) that are so basically at odds with one another. Lethem’s text is thus an anthology of the creatively liminal, radical, and egalitarian. To suggest that the text is in some way also a “plagiarism,” though, is to suggest at least one of two further things about it: first, that Lethem intends to deceive in some way, that he would have the reader assume that at least some of the appropriated material is his own, and second, that he intends to confuse or obscure the distinction between his text and its context—not just an appropriation but a sort of absorption of these other voices and works, smoothing over the lines between his own words and those of others. We can dismiss the first of these, as with the thoroughness of its documentation Lethem’s piece is clearly intended to deceive no one: he means to leave us in no doubt about the source of any of the lifted passages. He does not actually “plunder” either the editions or the visions of anyone: he attributes everything, operating within a citation economy rather like the one in place in academic writing, clearly laying out what belongs to him and what does not, what remains unchanged and where he has altered things and intruded upon the text.

What is at stake here, then, is the relationship between text and context, between the individual textual fragments and the work as a whole that Lethem constructs. I want to suggest that he deals in the essay with two quite different forms of composite construction, one of which is quite unlike the collage form with which he explicitly identifies “The Ecstasy of Influence”; the riot of assimilations and appropriations that he describes is, to borrow another metaphor from the visual arts, more like a process of mosaic construction, a subsuming of fragments into a unified whole to which each fragment is subordinate. Without the key at the end of the text, that is indeed exactly what “The Ecstasy of Influence” itself seems to be, as Lethem modifies his borrowings to dovetail them seamlessly with what is ultimately a continuous piece in terms of voice, tone and perspective. Only by incidental recognition of one or another passage along the way could readers know that the text is a mosaic comprising fragments rather than a homogeneous work, a little like the effect of viewing a mosaic at a distance rather than up close. The effect of the “key” at the end of the text, though, is more than just to bring the viewer close enough to the mosaic to view the fissures between the fragments; it is to destroy the unity of the text altogether, to break the pieces apart and resituate each within its original textual and authorial context. This is ultimately the effect of collage rather than mosaic construction, of fragments “placed in juxtaposition” (“collage,” OED Online) rather than uniting to comprise a “variegated whole” (“mosaic,” OED Online 2b). My goal in highlighting these ideas of collage and mosaic composition in this probe is to point out the manner in which Lethem’s text underscores the differences between these two kinds of composite creation by embodying and demonstrating both ways of understanding text and context, and to offer us a potentially useful vocabulary for talking about fragments in compositional context more generally.

Lethem refers to his work here—the result of a process by which he “stole, warped, and cobbled together as [he] ‘wrote’” (68)—as a “collage text” (71). This metaphor aligns Lethem’s text with notable works of visual collage such as those by Picasso, Schwitters and Braque in which fragments are “placed in juxtaposition” (“collage,” OED Online) and “photographs, news cuttings, and other suitable objects are pasted onto a flat surface, often in combination with painted passages” (Chilvers, “collage”).



Pablo Picasso, Still Life With Chair Chaning (1912): http://www.arthistoryarchive.com/arthistory/cubism/images/PabloPicasso-Still-Life-with-Chair-Caning-1911-12.jpg




Kurt Schwitters, Das Undbild (1919):





Georges Braque, Violon et Pipe (Le Quotidien) (1913-1914): https://www.wikiart.org/en/georges-braque/violin-and-pipe-le-quotidien-1913


In each of these collages, the frame around the canvas unites the gathered fragments in a sense, but they do not form a single coherent image. Their differences of origin, medium, shape, style, etc. remain in place, and in fact it is precisely this emphasis on juxtaposition and discontinuity that establishes the form of the collage itself, what Lethem in his piece calls “the art form of the twentieth century” (59, original emphasis).

“The Ecstasy of Influence” is not constructed like a collage, though, at least in its main body. Lethem carefully trims the edges of these textual cuttings so that they fit seamlessly with the rest, coming together as if produced by one voice. He obscures the discontinuities, the harsh lines and overlapping corners of the constituent elements of the text, and what emerges here instead has more affinities with a mosaic image than a collage, “a variegated whole formed from many disparate parts” (“mosaic,” OED Online 2b) rather than a juxtaposition of discontinuous fragments:



Christ Pantocrator mosaic, Hagia Sophia: https://commons.wikimedia.org/wiki/File:Christ_Pantocrator_mosaic_from_Hagia_Sophia_2240_x_3109_pixels_2.5_MB.jpg




Perso-Roman floor mosaic, Iran: https://commons.wikimedia.org/wiki/File:Mosaic01.jpg




Mosaic, Dome of the Rock: https://commons.wikimedia.org/wiki/File:Arabischer_Maler_um_690_002.jpg


In a mosaic, the “variegated whole” is a coherent, consistent image in the aggregate; even in cases in which each fragment of a mosaic is itself a complete photographic image, each is nonetheless fully integrated into the larger image, comprising it harmoniously alongside all the others. Where the context of collage fragments is one of discontinuity and contrast, of visual cacophony, the context of mosaic fragments is one of pictorial unity, of visual consonance.

Lethem writes of works with both mosaic and collage constructions in “The Ecstasy of Influence”; the “freely reworked” (60) mosaic composites of blues and jazz and other musical mash-ups contrast with collages like the “vertiginous mélange of quotation, allusion and ‘original’ writing” (61) in Eliot’s The Waste Land. Dealing with both of these forms, Lethem’s own text is a mosaic until the appearance of the key at the end, where, with the inclusion of the citation apparatus, the lines between the textual fragments become visible, and the text breaks apart, with each text attributed to its original author and the piece as a whole reframed as an anthology, a collected and arranged miscellany. What had been a mosaic construction dissolves into a collage of juxtaposed textual fragments, and while there are common themes among these passages to be sure, their discontinuity and polyphony is apparent in the various diverse discourses from which they are drawn: literature and literary criticism, law, the writings of experimental musicians, filmmakers, political figures, and so on.

The text describes and represents both of these contrasting forms of composite construction, as the key at the end restructures the whole by reframing the relationship between text and context throughout, isolating the fragments and dissolving the illusory image of the coherent essay by a single author. This is ultimately why the formal and structural distinctions between mosaic and collage construction are of interest to us here, as we address the questions of authorship, reproduction, and attribution at work in the discursive “confusion” between different modes of integration, such as the conflict between plagiarism and copyright infringement that Laura Murray describes. Lethem’s piece prompts us to consider how different methods of incorporation and attribution construct different text/context relationships that prove consequential for the interpretation of composite works and the assessment of the specific roles of fragments in context. We might consider, for example, the politics of Lethem’s shifting relationships with these other writers, whose grandmothers he has been careful not to appropriate (69), but whose works he has nonetheless modified as part of a relationship that recruits and subordinates them. Lethem operates within a citation economy, but he does so only after sustaining the illusion that these secondary materials are his own, and the two ways of appropriating contextual material on display here—assimilation into a mosaic, even with peripheral attribution, on the one hand, and inclusion, with distinctions of authorship and voice nonetheless documented and preserved, in the clamour of a collage on the other—highlight what is at stake when, to various textual and political ends, we quote and integrate the contextual discourse surrounding our work.


Works Cited


Chilvers, Ian. “collage.” The Oxford Dictionary of Art. : Oxford University Press, 2004. Oxford Reference. 2004. Web. 8 October 2016.

“collage” OED Online. Oxford University Press, September 2016. Web. 8 October 2016.

Lethem, Jonathan. “The Ecstasy of Influence: A Plagiarism.” Harper’s (February 2007): 59-71.

“mosaic” OED Online. Oxford University Press, September 2016. Web. 8 October 2016.

Murray, Laura. “Plagiarism and Copyright Infringement: The Costs of Confusion.” Caroline Eisner & Martha Vicinus, eds. Originality, Imitation, and Plagiarism. <http://quod.lib.umich.edu/d/dcbooks/5653382.0001.001/1:4/–originality-imitation-and-plagiarism-teaching-writing?g=dculture;rgn=div1;view=fulltext;xc=1 – 4.2>




Posted on 2016/10/10 by

Happy Birthday to…Who?: Contested Copyrights and Creative Ownership

In his article, “The Ecstasy of Influence: A Plagiarism”, Jonathan Lethem recounts a story wherein he describes the ‘invention’ of a song by blues legend Muddy Waters. When asked where the inspiration for the song arose, Waters cites five different sources: his own personal creation, sudden inspiration, he heard “a version by Johnson”, his mentor taught it to him, and finally it is simply “a song from the cotton field” (Lethem 60). This anecdote exemplifies what many experts in copyright argue – that the creation of something “new” is always based off inspiration from old. Lethem writes, “blues and jazz musicians have long been enabled by a kind of “open source” culture, in which pre-existing melodic fragments and larger musical frameworks are freely reworked” (60). Lawrence Lessig also says much the same: “Music in particular…has always been about using what went before in a way that empowers creators to do something new” (9). In a similar vein, sisters Mildred and Patty Hill, who taught kindergarten in the late 1890s, provided the inspiration for what was to become one of the most popular songs of all time, Happy Birthday to You.

Though relatively little known to the general population, there is a great deal of controversy surrounding the copyright laws applicable to a song that is no doubt sung often across the globe. Had the usual rules of copyright law been enforced, the song would have been set to enter the public domain on January 1st, 2017, yet Warner/Chappell, the company who owned the song up until earlier this year, expected to hold rights to it until 2030 (Brauneis 3). The history of the copyright surrounding “Happy Birthday to You” is convoluted at best, and is the case most often cited by those who argue that copyright law is too exaggerated and intricate. Though Warner/Chappell have amassed thousands of dollars in movies and television rights every year since 1935 (the year they are said to have first published the song’s sheet music), it is Jennifer Nelson’s lawsuit against Warner/Chappell in 2014 (Good Morning to You Productions vs. Warner/Chappell Music Inc.) that caused the debate to resurface and finally come to a conclusion.

This story begins in 1894, when Mildred and Patty Hill published a book of songs entitled “Song Stories for the Kindergarten” – a collection of relatively simple pieces, easy for young children to learn and sing along to (Brauneis 10). Among the collection was a song by the name of “Good Morning to All”, whose melody would later provide the music for “Happy Birthday to You.” Some critics argue that the sisters borrowed heavily from earlier songs with similar tunes, yet closer inspection reveals that the music and lyric combination were entirely original – a necessary component for the sisters to acquire copyright protection. It is perhaps safe to say however that the sisters were inspired by either folk melodies, or earlier music from various other artists, for as Lethem states, “all ideas are secondhand, consciously and unconsciously drawn from a million outside sources” (68). Nevertheless, the sisters knew enough about copyright law to ensure their booklet of songs fell under copyright protection.

"Good Morning to All" sheet music

“Good Morning to All” sheet music

Though after the sisters’ deaths the rights for the song fell to Jessica Hill, another of their sisters, current copyright laws for created works state that copyright protection terminates 70 years after the death of the author. As Patty Hill, the second of the sisters to pass away, died in 1946, this would mean the song should enter public domain at the end of this year. However, at the turn of the century, in 1907, a company by the name of Summy Co. filed a copyright application for the rights to the song “Good Morning to All” (California Central District Court, Document 187.28) and it is from this point forward that things become tricky. A few years later, in 1911, and seemingly for the first time, the lyrics to “Happy Birthday to You” were paired with the Hill sisters’ melody:

“Upon information and belief, the lyrics to Happy Birthday to You (without the sheet music for the melody) were first published in 1911 by the Board of Sunday Schools of the Methodist Episcopal Church…in The Elementary Worker and His Work, by Alice Jacobs and Ermina Chester Lincoln as follows:…[NOTE: The songs and exercises referred to in this program may be found in these books:…”Songs and Stories for the Sunday School” by Patty Hill]” (California Central District Court, Document 187.28).

Summy Co. decided not to extend the copyright to “Songs and Stories for the Sunday School”, and thus “Good Morning to All” became part of the public domain in 1924. Thus, the foundation and inspiration for the song most widely sung today became available for any and all to use without the need to purchase a license. The same cannot be said for “Happy Birthday to You”, as the joining of new lyrics with old melody precipitated a need for an entirely new copyright license (Brauneis 23).

Over the course of the next few years, the sheet music and lyrics for “Happy Birthday to You” found its way into many different compilations, yet each time without acknowledgement or identification of author. In 1934-35, Jessica Hill “sold and assigned to Summy Co III [a subsidiary of Summy Co.] certain piano arrangements of Good Morning to All, including publishing, public performance, and mechanical reproduction rights, copyright, and extension of copyright” (California Central District Court, Document 187.32). It is important to note here that it is simply the musical arrangement to the original song, and not the lyrics to “Happy Birthday to You” that were under copyright protection at this time. These circumstances were to cause difficulty for Summy Co. III when applying for copyright for the blended version of the song that included both music and lyrics, as the lyrics were never appointed authorship. In 1962, it came time for the renewal of the rights to “Happy Birthday to You”, and it is unclear whether Summy Co. III managed to obtain the proper and necessary renewal for the song to still be considered under copyright protection. That is, they obtained a renewal, however, given that there was never a specific author assigned to the lyrics, it seems the renewal only applies to the piano arrangements sold to the company by Jessica Hill back in 1935 (California Central District Court, Document 187.38). In 1998, Warner/Chappell bought Summy Co. III, and in doing so obtained the rights to “Happy Birthday to You”. It is this company that Good Morning to You Productions took to court.

In 2012, Jennifer Nelson began producing a documentary about the song “Happy Birthday to You”, and filed a request with Warner/Chappell to play the iconic ditty in her film. They agreed, but insisted she pay a 1500$ license fee (California Central District Court, Document 187.39). Though she did end up paying the fee, and entered into the required synchronization agreement license, in 2014 Good Morning to You Productions filed a class action lawsuit against Warner/Chappell. The process called into question both the authorship of the lyrics, as well as the renewal procedure of 1962. The first round at court resulted in judge George H. King declaring Warner/Chappell’s copyright invalid, as the original 1935 copyright applied solely to the musical arrangement which borrows from the 1894 version of “Good Morning to All” – yet he he neglected to declare whether the song is in the public domain (Blistein). Nevertheless, rather than continue the court proceedings, Warner/Chappell and Good Morning to You Productions came to a settlement, wherein the former avoided the possibility of punishment for demanding a fee for use of the song for the last 25 years. Instead, the “lawyers for the plaintiffs will seek a third of the $14 million fee, while the rest will be divided among those who paid the proper fees for “Happy Birthday” in the past and met the other criteria of the proposed class” (Blistein) – mere pennies for the company that has amassed more than 50 million dollars over the course of its ownership of the song. As of earlier this year, the song is now available in the public domain (Blistein)

It is interesting to learn of the controversial history surrounding the song that started out as a simply schoolroom melody and turned into what is thought to be one of the world’s most popular songs. To this day, proper authorship of the lyrics is still not appointed. It is difficult to say whether Warner/Chappell was avoiding the issues of authorship in order to hold on to the rights for as long as possible. Nevertheless, it seems only fair that the big corporation be obliged to pay back those they charged for licensing fees when the origin of their product was so uncertain. Let this telling history be a lesson for what Lethem argues: “we have to remain constantly vigilant to prevent raids by those who would selfishly exploit our common heritage for private gain” (67).

Works Cited

Blistein, Jon. “Warner Music Settles ‘Happy Birthday’ Lawsuit for $14 Million”. Rolling Stone, Feb. 9. 2016.  http://www.rollingstone.com/music/news/warner-music-settles-happy-birthday-lawsuit-for-14-million-20160209. Date Accessed 10 Oct. 2016.

Brauneis, Robert. “Copyright and the World’s Most Popular Song” Journal of the Copyright Society of the U.S.A. 335 (2009) ; GWU Legal Studies Research Paper No. 392. Web. 10 Oct. 2016

California Central District Court. “Rupa Marya v. Warner Chappell Music Inc. Case No. 2:13-cv-04460-GHK-MRW” 17 December. 2014. gov-uscourts-cacd-564772-187-0. Legal document. Date accessed 10 Oct. 2016.

Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. Random House, 2001.

Lethem, Jonathan. “The Ecstasy Of Influence.” Harper’s Magazine 314.1881 (2007): 59-71. Academic Search Complete. Web. 10 Oct. 2016.

Posted on 2016/10/08 by

Jonathan Hay’s Discourse in “The Value of Forgery”

[Please allow me to post this incomplete version of the probe (I still don’t know what Hay is talking about), the final version of which will be up by Monday. As can be seen, my main concern is that Hay’s thought process needs explaining; not how he got to his conclusions, but how he got to how he got to his conclusions.]

Two things stand out from Jonathan Hay’s masterpiece, The Value of Forgery. First, that a forgery is still a forgery once it is recognized as such. Second, that a forgery can be visually detected. I shall start with the second point.

The detection of forgery is complex and infraempirical. “The visual effect of a forgery is by definition always at least slightly off” (14). Moreover, the connoisseur’s detection of this itself can be misrecognized. But the bottom line is that the connoisseur first senses that something is amiss – i.e. “The connoisseur registers visual effect as affect, sensing a gap between the claim of affect that a work makes and its actual effect” – and then recognizes the empirical proofs of forgery. However, we must not omit that visible clues also come before this sensing, “because the connoisseur’s instinct is based on the internalization of a long experience of visible clues of forgery” (14).

In other words, Hay’s theoretical masterpiece affirms that there are empirical characteristics in the work itself which make it a forgery, and that these aspects are there before there is even a doubt as to whether the work is genuine or not. Interestingly, the connoisseur at first only communicates with the superempirical of an artwork (15).

A forgery, therefore, is always a forgery. Connoisseurs merely misrecognize their experience of the forgery; though they may sense that something is “slightly off” (14) because of their precognitive recognition of the visual markers of forgery, they may not cognitively be capable of ascertaining that this sensation is caused by the work’s being a forgery, or even so, they might be unable to cognitively identify the visual characteristics of forgery which are always there.

The conditions of success of a forgery are therefore either of the following:
a) a connoisseur will not feel disjunctive affect when he should; not a single connoisseur will ever feel disjunctive affect (a statistical anomaly);
b )all connoisseurs will feel disjunctive affect, but won’t identify the forgery;
c) some connoisseurs will feel disjunctive affect, but won’t identify the forgery;
d) some connoisseurs will identify the forgery, but won’t be believed by others (the work for some, a forgery, for others, genuine).

Let us be reminded that in response to the communication of a genuine work, a connoisseur may still feel a disjunctive affect, which the genuine work would ”declare” (14) as theatricality or irony. This is in contrast to the “undeclared affective disjunction” resultant from a forgery. We are put in the situation where what is termed a forgery might in fact be an as-of-yet unidentified genuine work (as the declaration of the disjunctive affect remains unheard).

In the case of an affective disjunction, then, when does the search for a declaration end? If the disjunctive affect is identified as undeclared, does that leave the work in a limbo between genuine and forgery? It would not simply be “under review”; the review would have been done: thus the work would have no possibility of being identified as genuine, yet would not yet have been identified as a forgery. For this not to be the case, it would have to be accepted that the undeclared disjunctive affect felt as a result of the communication of a forgery can also be felt as a result of the communication of a genuine work, which itself would imply one of the following two: either that this sensation is a legitimate component of the experiencing of a genuine work, a situation which would dismiss Hay’s argument altogether as delusional; or, that the disjunctive affect is simply not a particular characteristic of the connoisseur’s experiencing either of a forgery or for doubt as to the genuineness of a work, a situation which simply dismantles Hay’s argument and leaves us without any means of identifying a forgery.

My argument hinges here on Hay’s claim that the undeclared disjunctive affect can never be identified positively as undeclared, and that the final giving up and acceptance of a disjunctive affect as undeclared Hay has not positively stated as in itself (the acceptance) a positive characteristic of the forgery, Hay saying rather that the only way a forgery can be positively identified is by the empirical features in the artwork itself.

How here should we think about Hay’s thought? Should I describe it in positive characteristics?

Hay does not take into account this situation of acceptance of the undeclared nature of a disjunctive affect by connoisseurs. (What do I imply here? That there is a group of connoisseurs who decide for the human language which object “is” a “forgery”, which is “genuine”, and that a same object’s term of reference may be changed at their will. I also imply that there is a universally accepted notion, first, of universal acceptance, second, of object and sign.). Second, for Hay the way to identify a forgery is not to start out looking for signs of forgery in an artwork. Hay also does not specify whether, after experiencing a non-disjunctive affect – a junctive affect? – one should then look for the empirical features of a genuine work in order to identify the work as genuine. Furthermore, if the empical features of a genuine work were different from those of a forgery, one would be hard-pressed to figure out the rationale for Hay’s insistence on its being essential to the identification of forgeries for the precognitive registering of disjunctive affect to preceed any investigation into a work’s empirical features.

How, then, is Hay thinking? The empirical features of a forgery do not then seem to be positive ones. (It seems that the undeclared disjunctive affect proves the existence of the forgery, but, that only the empirical features of the forgery, once recognized (if not identified, which would be a whole new set of problems, because what are the empirical features specific to the empirical features specific to forgeries) do finally make true the identity of the work as forgery: and also it was a forgery all along.

Hay is operating one two levels: the level of the connoisseur’s experience, and the level of the object (the forgery); and the identification of the forgery must proceed first through the experience of the connoisseur (is this itself an empirical feature), though this experience was already caused by the empirical features which can only have any significance (should I use that word?) in Hay’s thought after the experience which they directly cause (“the connoisseur’s instinct is based on the internalization of a long experience of visible clues of authenticity and forgery” (14). Notice how, though Hay says that visible clues come before the registering of affect, he does not explicitly say that in this specific instance of looking at the work the visible clues cause the connoisseur’s sensation. There is therefore a fundamental disconnect between the artwork as empirical object and the connoisseur. Hay puts it this way:

the connoisseur’s first impression can be said to establish a direct relation between the superempirical (the indeterminacy and potential that is channeled into form by the artifact) and the infra-empirical (bodily perception, nonconscious sensation). It brackets out empirical observation and conscious perception as such, even as it makes use of them. What the connoisseur registers affectively [in a forgery] is a mismatch betwen the superempirical that she senses infra-empirically and its channeling into form that she sees empirically. (15, emphases mine)

These notions look all too much like get-out-of-jail-free cards.



Hay, Jonathan. “Editorial: The Value of Forgery.” RES: Anthropology and Aesthetics 53/54 (2008): 5-19

Posted on 2016/10/05 by

The Strange Case of Holbein and Lockey: Sir Thomas More and His Descendants and Its Descendants

In his “Editorial: The Value of Forgery,” Jonathan Hay argues that the presence of forgeries in the canon alongside putatively legitimate artworks calls into question the category of genuine on which the valuation of art depends. He argues that “the coherence of the modernist history of genuine art depends on elision of the feedback loop through which forgery intervened and continues to intervene in the space of the genuine” (6), suggesting that the conventional view of the art canon is that it is indeed such a “space of the genuine,” that there should be no place within it for works of dubious or problematic origin, whatever their intrinsic aesthetic value or substantive contribution to the discourse of art history. Hay’s project is in part, then, to challenge traditional Western notions of art and artist: that only “genuine” and unproblematically attributed works have a place in the authorized canon, and that decisions about value and placement within the canon can be made with reference to a reliable, stable and uncomplicated conception of the author function.

Hay intends to “make a case for seeing forgeries as art” (5), acknowledging the need to “conceptualize artistic value differently from usual. . . . potentially decentering our understanding of the history of art in general” (5). He points out that “[t]he understanding of the artistic past that artists and artisans possessed has often been contaminated by the unrecognized presence of forgeries in the artistic archive” (6)—that there is a pure concept of the author function that we attempt to bring to art but that art somehow defies or resists. The relationships between makers and made objects are too fraught to permit such a pure notion of the sanctioned, identifiable artist and the fully attributable art object.

Hay’s theorization of forgery in art rests on a conception of the artwork’s relationality that acknowledges these complicated relationships between art and artist, and his consideration of the status of forgeries as art involves a fluid and elaborate idea of the author function. The salient aspect of Hay’s relational theorization of art for our purposes here is the suggestion that

every explicit copy is coauthored. It makes no difference whether the copyist is unknown, can be identified, or made his identity known. Coauthorship is equally indifferent to whether the original artist is known, unknown, or misidentified. Nor does it matter where the copy is located on the spectrum that runs from replica to free copy. “Copyist,” like “artist,” is a potential fulfillment of the author function, and the only feature that separates copy cultures where artworks reiterate a rare artistic event from cultures in which such events have become the norm is that copy cultures did not make a clear distinction (or sometimes any distinction) between these two contrasting conditions of authorship. (6)

An artistic canon that includes forgeries is one that admits a more complex definition of the author function such as the one at work in the sort of “copy cultures” that Hay refers to here. While Hay is specifically focused on forgery, “an artwork that fraudulently passes itself off as genuine” (5), I am interested in looking at how we might extend some of the claims he makes about relationality and “coauthorship” to cases of reproduction that do not involve such “deceit in the space of art” (6). Hay’s ideas, brought to bear on an intriguing case of duplication “outside the frame of criminality . . . or deviance” (6) might lead us to more elastic conceptions of the author function and the means by which works whose authorial derivations are dubious or problematic might nonetheless cross through the liminal territory of the “paramedium” (10) and into the “authorized” canon of the genuine—a concept we might also reframe so that it denotes the products of more complex relationships between artist and art object.

As a case study with which to explore these ideas, I’ll offer a painting, rather a constellation of discrete but related paintings, called Sir Thomas More and His Descendants. There are in fact three of these, c. 1593-4, all of them copies by the English artist Rowland Lockey of a now lost painting from the 1520s by Hans Holbein the Younger depicting Sir Thomas More and his family. Lockey is mainly known for producing copies of artworks for the private “long galleries” of wealthy English families, and all of his copies of Holbein’s painting were commissioned by Thomas More II, Sir Thomas More’s grandson: “the exact copy now at Nostell Priory, the National Portrait Gallery picture, and a miniature which closely resembles it” (qtd. in Honigmann 81). Below is the copy at Nostell Priory in West Yorkshire:




Below is the one in the National Portrait Gallery in London:




Finally, below is the cabinet-miniature version (c. 1594) in the Victoria and Albert Museum:




Hans Holbein the Younger arrived in England in 1526 “with an introduction from Erasmus to More” (Honigmann 81), and he received the commission from Sir Thomas More for the family portrait, the preparatory study for which, according to Angela Lewi, must have been completed by February 1528 (qtd. in Honigmann 81). The completed Holbein painting was destroyed in a fire in the eighteenth century, and all that remains today as part of this collection of images that is Holbein’s own work is this study:




The odd relationship between these four linked images is of particular interest here in connection with questions of authenticity and inauthenticity, originals, copies, fakes, and the author function; considered together as part of an oddly “coauthored” corpus, the study, the lost Holbein painting and Lockey’s copies ought to offer us an opportunity to explore the questions that Hay raises about the problems of the author function and the untenability of “genuineness” as the guiding principle of canonicity.

First, the sketch is an uncontested Holbein, but it is a lesser duplicate work that merely adumbrates the lost painting that later served as the basis for Lockey’s copies, and while the sketch bears the authorial mark of Holbein, and “authorizes” the Lockey images in that its content confirms the relationship of the Lockey copies to the lost Holbein original, it is ultimately itself an unrealized piece of work. However, this preparatory sketch precedes the lost painting in time; viewed in chronological sequence, the lost painting is a kind of copy, a duplicate of the composition depicted in the study. Each Holbein image involved here, then, is arguably an original and a copy, from particular points of view and with respect to different ways of assigning relative value and primacy to sequential and compositionally related works.

In any case, second, the lost painting serves as the original of which Lockey’s works are copies. The Lockeys are reproductions of the Holbein, but as the only extant paintings in the collection—the exhibited works that stand in for the absent Holbein—they form the centre of this cluster of related paintings. They are the fully realized images in the collection and the linchpin holding that collection together, but they depend entirely on Holbein’s lost image, in part by virtue of their status as known copies (what Hay might call their relational nature vis-à-vis Holbein’s work), and, where canonicity and artistic legitimacy are concerned, in part by virtue of Lockey’s relative obscurity and Holbein’s considerable fame. The Lockey images too, then, are both originals and copies in their ways. Distinctions between original and copy, and between artist and copyist, seem to break down here, just as the distinction between the individual painters themselves also seems to break down, a point underscored by the fact that the Wikimedia Commons page for the Holbein sketch lists the Lockey copies as “other versions” of the same image to be considered together for the purposes of usage permissions, public-domain status, and so on.

Hay mentions that the “absence of a dependable author function” (7) accounts for the art world’s reluctance to accept works like forgeries as art, and he makes clear the political and ontological problems of authorship introduced by forgery, by “deceit in the space of art” (6). The strange case of Holbein and Lockey permits us to consider some of Hay’s ideas about genuineness, originality, canonicity and relational value “outside the frame of criminality . . . or deviance” (6), in connection with non-deceptive but nonetheless problematic absences of a “dependable author function.” What are we to make of these images taken together, as each both establishes and destabilizes the relational configuration of others in the collection in terms of originality, primacy and “authority”? What role does Holbein play in “authorizing” the Lockey images, as we acknowledge the inconceivability of discussing Lockey’s images outside the context of Holbein? How might our considerations of the complex “relational” author function in this peculiar body of works extend to the commissioners of the images, Sir Thomas More and Thomas More II, in whose very names one hears echoes of the relationships of originality and duplication that their commissioned paintings invite us to consider? Such questions may help us map out a canonical territory for the “undependable” author function, which proves to be based on a thornier and more involuted sense of authorship than the one implicit in traditional conceptions of the canon.



Works Cited

Hay, Jonathan. “Editorial: The Value of Forgery.” RES: Anthropology and Aesthetics 53/54 (2008): 5-19.

Honigmann, E. A. J. “Sir Thomas More and Contemporary Events.” Shakespeare Survey 42 (2002): 77-84.



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