Post Copyright Reform

Copyright Vogued, Dragged, and Bounced: Reimagining ‘Fair Use’ Through LGBTQ+ Artistic Expressions

June 25, 2021 , , , , ,
the new pride flag

 

Thanks to PK Senior Policy Counsel Meredith Rose for her valued input during the process of writing this blog post.


LGBTQ+ arts and expressions are inventive, witty, life-affirming, and commentary-laden. As they quickly break into mainstream media, they are attracting the attention of media conglomerate copyright holders who have the power to eradicate this vital subculture with just one auto-sent DMCA notice.

This blog post showcases three popular queer art forms that highlight the cultural contributions of queer people of color: drag performance, ballroom and vogue culture, and NOLA bounce music. Then, the piece confronts the copyright system’s shortcomings in the face of queer arts’ dynamism. It concludes by envisioning strategies for the survival and thrival of queer expressions. Happy Pride Month and Happy Juneteenth!

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LGBTQ+ Expressions: Drag, Ballroom, and Bounce Music Defined.

June is here! Time to celebrate Pride month when we raise up the legacies and cultural contributions of lesbian, gay, bisexual, transgender, queer, questioning, nonbinary, two-spirit, intersex, asexual, and pansexual people with renewed sensitivity to the advocacy and hardships of queer Black, Indigenous, Latinx, and Asian communities. Sexualities other than straight and gender identities other than the conventional binary have been suppressed and invisibilized from mainstream culture. But we are beginning to see that change.

Queer culture is a fusion of artistic expression, ancestor veneration, and political commentary celebrating safety, happiness, and love. It is also an opportunity to raise concerns with the community and allies around violence, oppression, and invisibility. Drag shows are an example of a prominent, well-known queer art form. Drag encompases both anatomical men impersonating anatomical women (drag queens) and women impersonating men (drag kings). It is a learned art form based on gender play, made famous by “drag queen performance,” which reimagines femininities (plural). Earlier drag performances in film often used drag as a comedic tool for straight men to mask their identities unrelated to their orientation. Today, drag has come to embrace the sexual orientation of its performers, as exemplified with the introduction on prime-time television in 2009 of “RuPaul’s Drag Race.” Drag has become an international cultural staple.

Another high-profile example of queer art is ballroom and vogue culture. A “ball” is a competition composed of various events where queer people across the gender, sexuality, and sexual orientation spectrums who typically belong to “families” or “houses” compete for individual prizes and group titles. (Please stop here and watch “Paris Is Burning,” the groundbreaking late ‘80s documentary about the African American, Latino, gay, and transgender matriarchs of New York drag and ball subculture. Also, watch “Pose on FX,” a ‘Paris Is Burning’ revival TV show.) Some competitive events are fashion shows where participants interpret a category of style and dress that comments on societal gender norms and explores Black imaginations of European, Northern and sub-Saharan African, Asian, Latin, Caribbean, and other global cultures and haute couture fashions (e.g., butch queen realness, fem queen realness, sex siren, labels, and bizarre).

The remaining competitive categories highlight “vogue,” a contemporary interpretive dance style based on the five foundational elements of duckwalk, catwalk, hands, floorwork, and spins and dips (demonstrated by the legendary Leiomy Maldonado, the “Wonder Woman of Vogue”). Voguers battle each other for crowd approval while interpreting ordinary and fictional characters, imitating cultural icons, or paying homage to cultural events. As voguers dance, commentators rap, sing, and chant on top of “vogue beats” to encourage and referee the performers and the audience. Vogue music (and the sub-subculture from which Madonna infamously borrowed) is a fast-paced, electronic, base-infused genre that heavily relies on music samples and media soundbites (e.g., a vogue favorite is “Reclaiming My Time” commentated by Buddah and produced by MikeQ inspired from California Congresswoman Maxine Waters’ viral showdown with Treasury Secretary Steven Mnuchin).

The brilliance of ballroom is how marginalized and criminalized queer youth of color created an ordered social system of due process where personal and competitive grievances are brought and adjudicated for the world to see. They comment on themes of race, gender, and sexual orientation within society with footnotes, reads, and receipts.

The hip-hop subculture of New Orleans bounce music is our final example of queer cultural expression. According to MasterClass music experts, bounce “merges traditional New York hip-hop beats and rhythms” with “repetitive call-and-response vocal delivery inspired by the Mardi Gras Indian chants that are common at New Orleans festivals and housing project block parties.” Louisiana gave birth to yet another musical genre in the late 1980s, besides multiple foundational styles of jazz, funk, second-line, rhythm-and-blues, rock-and-roll, southern hip-hop, heavy metal, and zydeco. (Learn more about the city’s 300 year-history of music.)

As bounce music became a cook-out mainstay, the Sissy Bounce Rap sub-subgenre took the music to the next level. Scholars note that the genre rose in prominence for its sexual suggestion and incessant gyrations commanded by its most famous and flamboyant queer MCs like Big Freedia, Sissy Nobby, Katey Red, Vockah Redu, Messy Mya, and Nicky Da B. Bounce is celebrated as music for the inclusive public, especially among non-LGBTQ+ people, and remains exclusively dominated by queer Black performers.

What drag shows, ballroom, bounce music (aka ‘rap in drag’), and other queer outsider arts have in common is their cunning deployments of imitation, parody, and satire to criticize, comment, venerate, rejoice, and protest. Bounce music not only borrows inspiration, but like Madonna’s “Vogue” scandal, has been stolen without proper attribution. (Checkout the $1 Million lawsuit where The Showboys claim that Lil Wayne, Drake, and other major artists stole their music to make viral hits.) Now, let’s explore how U.S. intellectual property law interacts with queer outsider arts.

Copyright Is an Imperfect System for Queer Arts.

Article 1, Section 8, clause 8 of the Constitution bestows Congress with the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and inventors the exclusive right to their respective Writings and discoveries.” Without getting too into the weeds of our complex network of copyright laws and copyright history here, the purpose of copyright has always been to incentivize citizens to create art that celebrates, commemorates, and challenges our understandings of ourselves, our world, and our human predicament in the universe.

The law seeks to balance incentivizing authorship (by bestowing upon rightsholders near-exclusive rights to their works) and public access to those artistic works substantiated by legal doctrines about unprotectable aspects of art and exempted fair uses. Our imperfect copyright system promotes art by providing people with an economic incentive to create it and entitling the public to consume it.

The reality of the intellectual property landscape of today greatly contradicts what the framers envisioned when James Madison and Charles C. Pinckney proposed the Copyright Clause at the Constitutional Convention of 1787. They assumed that artists and modest ateliers would hold the copyrights — not massive publishing houses. The framers did not metaphorically foresee media conglomerates worth hundreds of billions of dollars that own and operate swarths of entertainment most Americans consume like television, radio, music publishing, motion picture houses, internet streaming services, media-hosting sites, and even theme parks. Through their incessant lobbying efforts at the turn of the 21st century (efforts that inspired counter-efforts that birthed Public Knowledge), Big Media scored the passage of the Digital Millennium Copyright Act (DMCA). The DMCA limits fair use and grants rightsholders new tools to take down works online based merely on assertions of infringement. The DMCA is one of the biggest threats to outsider queer culture because companies can use this to take down drag shows, vogue videos, and queered bounce remixes like the ones mentioned in this blog post, and without due process. 

Tough Intellectual Property Law Protects Art Generally, but It Risks Imperiling Queer Art Specifically.

Copyright is a clunky system. Copyright tries to shoehorn an enormous diversity of expression into a more or less uniform set of protections. That works well(-ish) for traditional art forms like music and fiction. It works less well for forms that are endemic to or spring from marginalized communities, such as drag performance, numerous aspects of ballroom culture, and (perhaps ironically) jazz. The relationship between traditional copyright systems and queer art is a complicated one. Copyright, as commonly understood, is a bundle of legal rights that allow artists and creators to control how their work is reproduced, distributed, and publicly performed (among other things). Copyright protections have allowed some queer artists to monetize their work and, in some cases, rise to mainstream stardom. It’s hard to argue that viral popularity and visibility are somehow bad.

However, it’s important to point out that, by prohibiting others from using certain works, copyright can actually restrict the speech of non-rightsholders. Sparks can fly when these restrictions run up against outsider art’s tradition of deconstructing, lampooning, and otherwise quoting mainstream culture. Because this kind of restriction could quickly spiral into a First Amendment nightmare (even among mainstream art), the law draws boundaries around those rights by carving out limitations and exceptions to copyrights. These limitations and exceptions, such as fair use, are places where judges and lawmakers have decided that public policy, economic rationality, or longstanding tradition would be damaged by an absolutist view of copyright. It’s in these limitations and exceptions that queer art, and its tradition of commentary, thrives.

So, what if legendary DMV drag performer and Beyonce-impersonator Riley Knoxx went viral performing “Single Ladies”? Would Music World Columbia Records sue her for copyright infringement? And what if Leiomy “Wonder Woman” Moldonado competed in vogue dramatics during the 2021 Latex Ball as the Marvel superheroine Wonder Woman? Would Disney Marvel seek to enjoin her from using Wonder Woman’s name, image, and likeness while voguing? Or what if Sissy Nobby was served notice of copyright infringement for using Philly rapper Eve’s “Gotta Man” sample on one of his most famous songs? For these major companies to exercise their copyright against this presumptively protected class’s emblematic artforms just feels wrong, right?

RIGHT! We can probably defend Riley’s, Leiyomi’s, and Sissy Nobby’s uses of copyrighted works and trademarked likenesses with the fair use defense. However, once the copyright or trademark infringement complaint is filed, the art gets censored until each defendant performer has her day in court — years later. This chilling effect on queer art would have adverse consequences for the communities it uplifts and the consumers who learn from it and enjoy it. And while it is questionable whether big, corporate rightsholders would prevail against these fair use defenses, queer art, queer, expression, and queer identity as propagated through drag, ballroom, and bounce would just get marginalized all over again.

Queer arts are uniquely important to queer identities, rainbow youth empowerment, and the LGBTQ+ civil rights movement because unqualified acceptance and intentional inclusion only come through societal acknowledgment and deepening empathy. Acknowledgment and empathy manifest in queer representation in art and media. While we vogue our hands, pat our feet, laugh our stomachs into knots, and wipe tears from our eyes, queer actors, musicians, comedians, painters, and fashionistas are imperceptibly sensitizing us to the complexities of the human sexuality spectrum and structuring our societal conversations about power, love, and the law. Most importantly, queer youth who are most at risk for suicide, homelessness, exposure to illicit drugs, and childhood physical, psychological, and sexual abuse will lose hope when the queer artists they emulate get picked off by major record labels and media conglomerates. Queer kids will never know that “It Gets Better” with time, intentional community, and self-actualization. If rightsholders were to exercise their rights to enjoin drag, ballroom, and queer music performances, we’d lose more than art.

LGBTQ+ arts are now experiencing what rappers endured in the late ‘80s and ‘90s — the dead ends of the copyright system. These artists depend on de facto non-enforcement of our Chapter 17 of the United States Code to survive, and they survive until they thrive. Once arts start thriving, the media conglomerates want their financial cut of outsider arts. As drag, ballroom, and bounce performances move from nighttime shows in dark smokey clubs to Apple Music, Spotify, and prime-time streaming services, queer art grows increasingly susceptible to DCMA takedowns and performance injunctions to stop queer artists from making more money on their copyrights than the conglomerates do.

But All Hope Is Not Lost!

Here are three policy ideas worth exploring for the survival of queer arts:

  • Let’s empower queer artists with knowledge about the copyright landscape so that they can make informed decisions about how they reprise and revive works. Young artists sharing their work via social media are susceptible to DMCA takedowns because they are not familiar with the technical statutory contours of fair use, or how to emphasize uncopyrightable aspects of original works. This education effort can help queer artists make artistic decisions and publicity choices to navigate around or through copyright allegations. Education efforts may even ignite a conversation about newer, more agile IP rights that spur more creation and more sharing.
  • Corporate rightsholders should continue strategic non-enforcement and, when appropriate, pursue mediated arbitrations with queer artists. The asymmetries between complex media conglomerates that hold the rights to nearly all mainstream original works and the regional drag queens, young ballroom walkers, and home-grown bounce MCs who borrow from those works induce a corporate abuse of power that chills free artistic exercise and further marginalizes queer culture. Instead, they can be good corporate citizens and recognize queer cultures’ inherent essence to American culture. Instead of immediately resorting to litigation or the blunt instrument of take-downs, rights-holding media companies can also pursue voluntary alternative dispute resolution (ADR) methods. These forms of dispute resolution can be unfair when they are forced on people, when the adjudicator applies rules that systematically favor one side (typically the more powerful one), or when the process ends up biased towards the party that pays the expenses. But it can be done right, too, and the platforms that queer artists use can help set up a process that is fair to users and to rightsholders.Mediation is one form of ADR where the parties, guided by a neutral third party (“mediator”), discuss their issues, interests, understandings, and feelings in a private forum. In mediations, large copyright holders and queer artists can share information and explore innovative resolutions beyond rote court-adjudicated remedies like enjoining future performances and engorgement of profits. Disputing parties generally reach a “sustainable, voluntary, and nonbinding agreement” that can be challenged in court if not honored by both parties. Failing that, other forms of ADR such as mediation-arbitration (med-arb) can be appropriate. These processes can allow artists to tell their story and make their cases in nontraditional ways. In recent years, mediators have designed [cultural and] “artistic interventions [that] provide a setting conducive to dialogue… to circumvent highly-charged patterns of discourse.” Perhaps ADR can move us from compromise-created incentives to incentive-created compromises that protect queer arts from retribution and marginalization.
  • Corporate rightsholders should discover, feature, and employ queer artists equitably. Media companies should increase efforts to scout, showcase, and fairly compensate queer artists. Lucrative contracts would offer queer artists public presence and financial viability to escape persecution and even transform the communities that once persecuted them. (See bounce artist Big Freedia’s “Bounce Up” charity organization that improves the lives of New Orleans children. See also Rihanna sponsoring the 2019 Latex Ball’s face category with Fenty Beauty makeup products and funding the $10,000 grand prize.) Instead of targeting people who are disproportionately subjected to physical, mental, and emotional abuse as well as financial exclusion and legally un-cognizeable systemic and individual microaggressions, corporations can stand in the gap and empower queer artists by hiring them and working with them.

As queer people assume their rightful places on America’s mainstream stages, and as queer rights evolve beyond tokenistic recognition, our copyright regime could use a good drag, a hot vogue, and a hard bounce to catch up to queer imaginations.


About Antoine Prince Albert III

Antoine Prince Albert III is a Policy Counsel on the Government Affairs team, where he focuses on governance of social media platforms, Section 230, digital inclusion, net neutrality, and privacy. Prince has worked in public interest technology since 2017. Prior to joining Public Knowledge, he was the 2020 OPICS Public Interest Graduate Fellow at Georgetown’s Institute for Technology Law & Policy, the inaugural Technology & Telecommunications Fellow at The Leadership Conference for Civil and Human Rights, and a Law Clerk in the Office of Senator Ron Wyden (D-OR). Before working in public interest technology, he served as an Officer of the United States Navy and a speech and debate instructor at La Salle College High School. Prince serves in a variety of tech-interested organizations. He is a founding member of the Georgetown Global TechNet Working Group, a cohort of international academics and thought-leaders dedicated to exploring public interest technology in the Global South. Prince is an alumnus of the BreakLine’s Apex program and volunteers his time to help veterans, women, and people of color pivot into compelling careers in the tech industry. He also co-hosts the monthly Tech Amendment podcast to educate the public on timely tech policy issues. In all his work, Prince offers policy and social insights on technology’s impact upon Black, Latino, and Indigenous people in the United States, the Caribbean, and sub-Saharan Africa. Prince earned his J.D. from Georgetown University Law Center as a Global Law Scholar, where he received the Dean’s Certificate for Outstanding Service and the Pro Bono Pledge Award. He is a proud summa cum laude, Phi Beta Kappa graduate of Morehouse College. Prince hails from Philadelphia, PA, and expands his knowledge and appreciation of African diasporic cultures and musical genres for leisure.