Round Up the Usual Suspects

I’ve always assumed that Woody Allen didn’t pay royalties to Warner Brothers when he made Play It Again, Sam. More important, I guess, I’ve always assumed that Woody didn’t have to, whether or not he paid. One could make the case, in doctrinal terms, for clearing both trademark and copyright interests. If the film were re-made today, I’m sure that the lawyers would take care of things.

But I’m hard pressed to think of a movie that better represents the idea — articulated best in the scholarly literature by Rebecca Tushnet — that individuals often appropriate others’ expression not to avoid the alleged drudgery of coming up with something original, but to capture and express something quite important about the person and a relationship to society. Is the original creator harmed in the process, economically or otherwise? I don’t think so. Woody Allen may have been making a commercial film, but he was doing on screen something that thousands of Humphrey Bogart fans had been doing on their own for decades. “Round up the usual suspects” was as common a phrase in my household as “make your bed” and “take out the garbage.” So was “you dirty rat,” but that’s another story.

Grant McCracken has a thoughtful post today that explores some of these issues in light of the release of the official Academy Awards poster for 2007. The poster is a collage of famous movie quotations, and he approves: “This is a brilliant bit of brand building, isn’t it? Hollywood ceased to be a matter of mere entertainment a long time ago. It is now the supplier of basic cultural materials, the very stuff of our self and collective definition. Good on the Academy for reminding us that Hollywood writers write for all of us, and that Hollywood directors direct even the details of our personal lives.”

But part of me winces. Supplier of basic cultural materials, Hollywood is. McCracken is quite right about the extent to which our lives are suffused with content borrowed from popular culture, both voluntarily and involuntarily. More below the jump.

But he’s wrong, I think, in some important details. Direct the details of our personal lives, Hollywood does not. There’s no inconsistency between the idea that we construct our own identities, on the one hand, and the fact we borrow liberally from the movies, on the other.

And there is his conclusion: “There is no danger that Hollywood will find us in copyright violation when we enter a bar shouting, ‘Yeah, baby!’ But it does make sense that Hollywood should take credit where credit is due, for the fact that it is perhaps the most important supplier of the cultural materials with which we direct, write, and perform the details of our everyday lives.” I’m not as confident as he is on the first point (that sounds like a public performance to me; the bar owner should watch out), and I think I disagree on the second. If the originators of the material run around taking credit for these things, the phrases lose their cultural currency. Play It Again, Sam works as a cultural universal (if it still does today) precisely because neither Warner Brothers nor Humphrey Bogart (or his estate) is standing nearby, making sure that an appropriate attribution credit gets attached to the use. Anthropologically speaking, speakers and listeners share a cultural space that they’ve created; the act of claiming credit re-locates that space and denies both speaker and listener their places in it. We’re no longer in on the joke. Instead, we’re playing on WB’s turf.

Is all of that enough to get the lawyers to sit still during the hypothetical remake of Play It Again, Sam? Probably not. Which is too bad. In the words of Spade: “When you’re slapped, you’ll take it and like it!” But even Spade doesn’t find the real falcon.

3 thoughts on “Round Up the Usual Suspects

  1. Yes, you’ve got the problem with McCracken exactly right. WHo is creating the value here? The originator, or the masses who creatively re-appropriate and re-deploy the ideas? It all reminds me of the Boudin concurrence in Lotus v. Borland–who’s creating the value, the originators of the interface or the millions who invest in learning it?

    Another point–if hollywood’s bloated and overproduced movies weren’t filling the public sphere, some other artistic form would. Culture abhors a vacuum. Right now big movies are front and center, but who knows, as the Time “Person of the Year” suggests, maybe in a decade or so it’ll be a revolving carnival of YouTube celebs. Ze Frank, Cute Overload, silly skits…all can take a turn, and perhaps a few will have staying power as common objects of conversation.

  2. Who is creating the value in bread? The people who make the bread, or the people who eat and enjoy the bread? Interesting philosophical question, but I’m not sure it tells us anything useful about bread compensation.

    It’s interesting that McCracken uses the word “credit,” not “compensation.” The whole point of quoting a famous line, usually, is to speak to people who get the joke. If you have to explain the joke, as E.B. White said, it’s like dissecting a frog: the thing dies in the process. If you are correct that your listeners will understand the reference, proper attribution automatically accompanies your speech.

    The more difficult question is at what point (or for what behavior) is compensation owed. As long as we’re discussing short phrases, the discussion is a little artificial since they are not supposed to be copyrightable.

  3. Who is creating the value in bread? The people who make the bread, or the people who eat and enjoy the bread? Interesting philosophical question, but I’m not sure it tells us anything useful about bread compensation.

    It’s interesting that McCracken uses the word “credit,” not “compensation.” The whole point of quoting a famous line, usually, is to speak to people who get the joke. If you have to explain the joke, as E.B. White said, it’s like dissecting a frog: the thing dies in the process. If you are correct that your listeners will understand the reference, proper attribution automatically accompanies your speech.

    The more difficult question is at what point (or for what behavior) is compensation owed. As long as we’re discussing short phrases, the discussion is a little artificial since they are not supposed to be copyrightable (see e.g. http://www.copyright.gov/circs/circ34.html ).

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