The Pirate Bazaar: The Social Life of Copyright Law

This thesis provides a cultural history of Australian copyright law and related artistic controversies. It examines a number of disputes over authorship, collaboration, and appropriation across a variety of cultural fields. It considers legal controversies over the plagiarism of texts, the defacing of paintings, the sampling of musical works, the ownership of plays, the co-operation between film-makers, the sharing of MP3 files on the Internet, and the appropriation of Indigenous culture. Such narratives and stories relate to a broad range of works and subject matter that are protected by copyright law. This study offers an archive of oral histories and narratives of artistic creators about copyright law. It is founded upon interviews with creative artists and activists who have been involved in copyright litigation and policy disputes. This dialogical research provides an insight into the material and social effects of copyright law. This thesis concludes that copyright law is not just a ‘creature of statute’, but it is also a social and imaginative construct. In the lived experience of the law, questions of aesthetics and ethics are extremely important. Industry agreements are quite influential. Contracts play an important part in the operation of copyright law. The media profile of personalities involved in litigation and policy debates is pertinent. This thesis claims that copyright law can be explained by a mix of social factors such as ethical standards, legal regulations, market forces, and computer code. It can also be understood in terms of the personal stories and narratives that people tell about litigation and copyright law reform. Table of Contents Prologue 1 Introduction A Creature of Statute: Copyright Law and Legal Formalism 6 Chapter One The Demidenko Affair: Copyright Law and Literary Works 33 Chapter Two Daubism: Copyright Law and Artistic Works 67 Chapter Three The ABCs of Anarchism: Copyright Law and Musical Works 105 Chapter Four Heretic: Copyright Law and Dramatic Works 146 Chapter Five Shine: Copyright Law and Film 186 Chapter Six Napster: Infinite Digital Jukebox or Pirate Bazaar? Copyright Law and Digital Works 232 Chapter Seven Bangarra Dance Theatre: Copyright Law and Indigenous Culture 275 Chapter Eight The Cathedral and the Bazaar: The Future of Copyright Law 319

Defective co-creation: Developing a typology of consumer dysfunction in professional services

Purpose This study aims to explore the scope of consumers’ defective co-creation behaviour in professional service encounters. One of the founding premises of service-dominant logic (Vargo and Lusch, 2004, 2008) is that consumers co-create the value they derive from service encounters. In practice, however, dysfunctional consumer behaviour can obstruct value co-creation. Extant research has not yet investigated consumers’ defective co-creation behaviour in highly relational services, such as professional services, that are heavily reliant on co-creation. Design/methodology/approach To investigate defective co-creation in professional services, 164 critical incidents were collected from 38 health-care and financial service providers using the critical incident technique within semi-structured, in-depth interviews. Thematic coding was used to identify emergent themes and patterns of consumer behaviour. Findings Thematic coding resulted in a comprehensive typology of consumers’ defective co-creation behaviour that both confirms the prevalence of previously identified dysfunctional behaviours (e.g. verbal abuse and physical aggression) and identifies two new forms of consumer misbehaviour: underparticipation and overparticipation. Further, these behaviours can vary, escalate and co-occur during service encounters. Originality/value Both underparticipation and overparticipation are newly identified forms of defective co-creation that need to be examined within the broader framework of service-dominant logic (SDL).

The valley of the dolls: Brand protection and artistic parody

In the case of Mattel Inc v Walking Mountain Productions, the toy doll manufacturer Mattel sought to prohibit a Utah photographer called Thomas Forsythe from producing and selling a series of 78 photographs entitled "Food Chain Barbie". The work had strong social and political overtones. The artist said that he chose to parody Barbie in his photographs because he wanted to challenge the beauty myth and the objectification of women. He observed: "Barbie is the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture." The company Mattel argued that the photographs infringed its copyrights, trade marks, and trade dress. It was concerned that the artistic works would erode the brand of Barbie by wrongfully sexualising its blonde paragon of womanhood. However, Lew J of the Central District Court of California granted summary judgment for the photographer. The Court of Appeals upheld this verdict. Pregerson J held that the use of the manufacturer's copyrighted doll in parodic photographs constituted a fair use of copyright works. His Honour held that the use of manufacturer's "Barbie" mark and trade dress did not amount to trade mark infringement or dilution. This article provides a case commentary upon the Court of Appeals decision in Mattel Inc v Walking Mountain Productions, and its wider ramifications for the treatment of artistic parody under copyright law and trade mark law. It contends that the decision highlights the need for reform in Australian jurisprudence and legislation in respect of artistic parody.

Creation and copyright law: The case of 3D printing

The Australian Law Reform Commission is conducting an inquiry into copyright law and the digital economy in 2012 and 2013.The President, Rosalind Croucher, stated: “While the Copyright Act has been amended on occasion over the past 12 years to account for digital developments, these changes occurred before the digital economy took off. The Australian Law Reform Commission will need to find reforms that are responsive to this new environment, and to future scenarios that are still in the realm of the imagination. It is a complex and important area of law and we are looking forward to some robust debate and discussion during the course of this very important Inquiry.”

Who killed fair use? A copyright murder mystery down under

Fair Use Week has been celebrated this week in the United States, with great gusto and enthusiasm. At Harvard Library, Kyle Courtney commented: ‘Fair use is critical and important to innovation, scholarship and research in the United States.’ Kenneth Crews emphasized that ‘the new technological ventures, like other creative pursuits, require fair use and other copyright limitations for experimentation and success.’ Legal director Corynne McSherry of the Electronic Frontier Foundation has highlighted the significance and the importance of the defence of fair use: ‘Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate.’ For Techdirt, Mike Masnick has emphasized that fair use is a right – and not an exception or a mere defence. Peter Jaszi and Pat Aufderheide have highlighted the contextual operation of fair use in particular artistic communities. Molly Van Houweling of the Authors Alliance has written about the ecstasy of influence – the role of inspiration and appropriation in all acts of artistic creation. Fair use has been celebrated as a many-splendored legal creation.

Pars pro toto: Experimental exhibition design and curatorial paradigms

'Pars pro toto: Experimental Exhibition Design and Curatorial Paradigms' is situated within the ongoing debate over the conflation of art and curating, and the subsequent tension between artistic autonomy and curatorial intervention. This practice-led research project acclimates these polarities using a collaborative and discursive curatorial methodology in the creation of two exhibitions. Both exhibitions, one digital and one primarily physical, investigated how the temporary exhibition can operate as a site for provocation, how the suggested methodology facilitates the relationship between artist and curator within this paradigm, and outlines factors that assist in expanding the definition of the contemporary curatorial role.

Prototyping the self-authored video interview : Challenges and opportunities

Self-authored video- where participants are in control of the creation of their own footage- is a means of creating innovative design material and including all members of a family in design activities. This paper describes our adaptation to this process called Self Authored Video Interviews (SAVIs) that we created and prototyped to better understand how families engage with situated technology in the home. We find the methodology produces unique insights into family dynamics in the home, uncovering assumptions and tensions unlikely to be discovered using more conventional methods. The paper outlines a number of challenges and opportunities associated with the methodology, specifically, maximising the value of the insights gathered by appealing to children to champion the cause, and how to counter perceptions of the lingering presence of researchers.

Speaking the bitter truth: The role of the creative imagination in the process of healing

This chapter is concerned with the complexity and difficulty of truth telling as it is played out in two graphic novels: Stitches: A Memoir (Small 2009) and Why We Broke Up (Handler & Kalman, 2011). These texts establish a link between creative imagination and pain as the central protagonists come to see the therapeutic value of literature and film in helping them understand the complex emotional worlds they inhabit and the bitter truths about love and relationships. The discussion examines how these texts privilege a particular kind of independent subjectivity through aesthetic creation and appropriation. It also considers how speaking and silence are co-present elements in gender relations and each has its part to play in the double process of suffering and healing.

Interpersonal coordination tendencies supporting the creation/prevention of goal scoring opportunities in futsal

Research on 1vs1 sub-phases in team sports has shown how one player coordinates his/her actions with his/her opponent and the location of a target/goal to attain performance objectives. In this study, we extended this approach to analysis of 5vs5 competitive performance in the team sport of futsal to provide a performance analysis framework that explains how players coordinate their actions to create/prevent opportunities to score goals. For this purpose, we recorded all 10 futsal matches of the 2009 Lusophony Games held in Lisbon. We analysed the displacement trajectories of a shooting attacker and marking defender in plays ending in a goal, a goalkeeper's save, and a defender's interception, at four specific moments during performance: (1) assisting attacker's ball reception; (2) moment of passing; (3) shooter's ball reception, and; (4) shot on goal. Statistical analysis showed that when a goal was scored, the defender's angle to the goal and to the attacker tended to decrease, the attacker was able to move to the same distance to the goal alongside the defender, and the attacker was closer to the defender and moving at the same velocity (at least) as the defender. This study identified emergent patterns of coordination between attackers and defenders under key competitive task constraints, such as the location of the goal, which supported successful performance in futsal.

Musicalising theatre, theatricalising music: Writing and performing intermediality in composed theatre

This investigation combined musicality and theatricality in the creation of four shows: Bear with Me, The Empty City, Gentlemen Songsters and Warmwaters. Led by creative practice, the research identified four polyvalences that characterise Composed Theatre, a transformational artistic domain which offers distinct challenges for performance makers. These include tensions and resolutions between compositional and theatrical thinking; music and words; setlist and script; and finally persona and character. The research finds that these interplays not only lend Composed Theatre its distinct qualities, but offer a potential set of balances to strike for writers, performers, composers and musicians who mix music and theatre in intermedial performance.

Mapping the experiential in contemporary dance

The research questions how a ‘lived experience’ of contemporary dance could be deepened for the audience. It presents a series of choreographic ‘tools’ to create alternative frameworks of presentation that challenge the dominant modes of creation, presentation and meaning making in contemporary dance. The five tools established and applied in this research are: variations of site, liminality, audience agency, audience-performer proximity and performer qualities. These tools are framed as a series of calibrated scales that allow choreographers to map decisions made in the studio in relation to potential audience engagement. The research houses multiple presentation formats from the traditional to the avant-garde and opens up possibilities for analysis of a wide range of artistic dance works. This research presents options for choreographers to map how audiences experience their work and offers opportunities to engage audiences in new and exciting ways.

BPMN process views construction

Process view technology is catching more attentions in modern business process management, as it enables the customisation of business process representation. This capability helps improve the privacy protection, authority control, flexible display, etc., in business process modelling. One of approaches to generate process views is to allow users to construct an aggregate on their underlying processes. However, most aggregation approaches stick to a strong assumption that business processes are always well-structured, which is over strict to BPMN. Aiming to build process views for non-well-structured BPMN processes, this paper investigates the characteristics of BPMN structures, tasks, events, gateways, etc., and proposes a formal process view aggregation approach to facilitate BPMN process view creation. A set of consistency rules and construction rules are defined to regulate the aggregation and guarantee the order preservation, structural and behaviour correctness and a novel aggregation technique, called EP-Fragment, is developed to tackle non-well-structured BPMN processes.

The reader-assembled narrative: Representing the random in print fiction

The growing interest in co-created reading experiences in both digital and print formats raises interesting questions for creative writers who work in the space of interactive fiction. This essay argues that writers have not abandoned experiments with co-creation in print narratives in favour of the attractions of the digital environment, as might be assumed by the discourse on digital development. Rather, interactive print narratives, in particular ‘reader-assembled narratives’ demonstrate a rich history of experimentation and continue to engage writers who wish to craft individual reading experiences for readers and to experiment with their own creative process as writers. The reader-assembled narrative has been used for many different reasons and for some writers, such as BS Johnson it is a method of problem solving, for others, like Robert Coover, it is a way to engage the reader in a more playful sense. Authors such as Marc Saporta, BS Johnson, and Robert Coover have engaged with this type of narrative play. This examination considers the narrative experimentation of these authors as a way of offering insights into creative practice for contemporary creative writers.

Dinner aesthetic

‘Dinner Aesthetic’ fictionally explores the theme of creation and destruction as points on a continuum, rather than oppositional binaries. The piece was published in in Issue 21 of Literary Orphans.