The Legal Properties of Film
| Date | 01 March 2004 |
| Published date | 01 March 2004 |
| DOI | http://doi.org/10.1111/j.1468-2230.2004.00483.x |
| Author | Anne Barron |
The Legal Properties of Film
Anne Barron
n
This article focuses on the manner in which the lawof copyright in the UK has made sense of a
particular cultural artifact ^ ¢lm ^ in the process of ¢guring it as an object in which property
rights can subsist. It traces the history of legislative and judicial attempts to circumscribe the
boundaries around this object, noting that two approaches have emerged and now co-exist: a
‘physicalist’ approachwhich treats a ¢lm as co- extensive with its recording on some medium;
and a‘formalist’ approachwhich treats a ¢lm as an expressive form exceeding this physical man-
ifestation. It explains why each approachis reductive and impoverished when consideredi n rela-
tion to how ¢lms are ¢gured as aesthetic objects; and concludes that a modi¢ed version of the
available Marxist explanationsof ¢ lmcopyright reveals the latter’s understandings of ¢lm to be
closely articulatedwith the purposes and values of the mainstream ¢lm i ndustry. More generally,
it suggests that a reappraisal of Marxist theory may be timely at this juncture, not least because
it draws attention to law’s role in exemplifying the entwinement of culture and economy at a
number of levels.
INTRODUCTION
How does copyright law represent, or make sense of, its objects? The question
may seem anunlikely one at ¢rst sight: copyright law, after all, is usually under-
stood to be a regulatory instrument, not a signifying practice. In particular, it
tends to be seen as part of a broader regime of law ^ intellectual property law ^
that functions to regulate thecommercial exploitationof ‘intellectual’productsby
de¢ning these as objects in which property rights subsist. And yet precisely be-
cause it achieves its regulatorygoals only by ¢rst de¢ning its objects in this way,
copyright law is always necessarilye ngaged in producingrepresentationsof those
objects in the process of regulating their disposition and use.This article explores
the relationship between these representations and copyright law’s existence as a
structure of property rights that performs particular economic functions. More
precisely, it uncovers the conception of ¢lm that emerges when the latter is ¢g-
ured as an object of ownership and exchange. Involved in this project is a more
general concern: to interrogate the dissociation ofculture and political economy
that, as Nancy Fraser has argued in her recent work, is a characteristic feature of
the ‘postsocialist’ condition both within academia and beyond it.
1
This concern
manifests itself at two levels in this article. On one level, I aim to consider how
‘cultural’ production in the broadest sense ^ the production and circulation of
n
Department of Law, London School of Economics and Political Science. I am grateful forthe sup -
port providedby an AdvancedResearch Awardfrom the Arts and Humanities ResearchBoard, which
assisted towardsthe writi ng of this article.Thanks are also due to Mark Rose for his helpful comments.
An earlier version of thi s article appears as ‘Commodi¢cation and Cultural Form: Fi lm Copyright
Revisited’(2004) 52 (4) NewFormations(forthcoming).
1N.Fraser,JusticeInterruptus (London: Routledge,1997).
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Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(2)MLR 177^208
stabilized social meanings, including legal meanings ^ is entwinedwith the pro-
cesses of commodity production and exchange that characterize the contempor-
ary economy. On a second level, I seek to explore how the industrial production
of cultural artifacts as commodities shapes the form of these artifacts.
Both of these themes are currently the focus of vigorous debate outside the
legal academy. The ¢rst is a crucial issue for critical theorists working in both the
humanities andthe social sciences in the wake of their so-called‘culturalturn’, that
is, the turn towards understanding all social processes and relations ^ including
but not limited to more obviously ‘cultural’ (ie artistic/expressive) processes and
relations ^ as e¡ects of, rather than prior to, systems of representation.This ‘turn’
is itself an e¡ect of the emergence of cultural theory in the 1980s as Marxism’s
chief critic on the academic Left.Very generally, the fundamental preoccupation
of cultural theory is with‘signifying practices’ and how these are organized or
regulated in the form of ‘discourses’. Although the exemplar y form of signifying
practice is the use of linguistic signs in speechand writing, cultural theorists tend
to analogize culture to language, and so discern systems of signs at work every-
where: for example, in the design of built space and the visual environment in
general, in the codes of dress, deportment and gesture that structure the routines
of daily life, and even in the codi¢cation of social relations throughthe categories
of the law.
2
The central message of cultural theory is that discourses ^ which it
holds to be social rather than individual in origin ^ produce rather than simply
express meanings and therefore actively construct what tends tobe thought of as
‘reality’;that everything that makesup this ‘reality’is thereforea product of,rather
than prior to, culture (ie that‘reality’ is an e¡ect of the myriad discourses that form
the symbolic order of culture); that di¡erent discourses can produce di¡erent
meanings for what seems tobe the same aspect of ‘reality’; that these di¡erences
cannot be resolved by invokinga true reality which is beyond discourse;that cul-
ture nonetheless givesshape to ‘reality’ byprivileging some meaningsover others;
but that these dominant meanings are inherently unstable and liable to be dis-
rupted by alter native, suppressed, meanings.
Although certain Marxist thinkers such as Louis Althusser and Antonio
Gramsci in£uenced the earlydevelopment of cultural theory, this was so only in-
sofar as theyplaced in question the base/superstructure metaphor that has tended
to organize orthodox Marxist thought, and in particular the Marxist theory of
ideology. The latter has certain a⁄nities with cultural theory’s concept of dis-
course, but the crucial di¡erence is that a society’s dominant ideology is under-
stood by orthodox Marxists to be determined by the mode by which the
materialconditions of existenceof that society areproduced and reproduced. This
of course presupposes that there is indeed a‘reality’ ^ a society’s economic ‘base’ ^
which is not only prior to thatsociety’s signifying practices,but regulates and sets
limits to them: the (economic) mode of production determines the ideological
(or in cultural theory’s terms, the cultural) superstructure.Whereas the ‘cultural
turn’was propelled by, amongstother things, an antipathy to Marxist economism
2 For an account of how cultural theory has been received into contemporary legal theory, see
A. Barron,‘(Legal) Reason and its‘Others’: Recent Developmentsi n LegalTheory’ in J. Penner,
D.Schi¡ and R. Nobles (eds),Jurisprudence and LegalTheory (London: Butterworths,2002) 1063^1077.
The Legal Properties of Film
178 rThe Modern Law Review Limited 2004
on the ground that it was reductive and functionalist, it hasbecome increasingly
clear that this‘turn’ has merely succeeded in reversing the terms of the Marxian
base/superstructure problematic: ‘What was previously secondary, merely super-
structural, is now primary, and notions of structure are regarded as suspect y
Where previously language re£ected material being, it is now treated as itself the
‘house of being’.’
3
The result is a kind of ‘culturalism’
4
in cultural theory that, if
not at all functionalist (in that an overarching notion of culture as‘meaning-mak-
ing’tends to blur distinctions between discourses and obscure their speci¢c func-
tions and e¡ects), is certainly reductive. There now appears to be a growing
realizationeven amongst those sympathetic to the achievements of cultural theo-
ry that this is a problem, not least because it obscures the role of economic forces
precisely at a time when the global organization of these forces is becoming
ever more observable and economic divisions are widening both within and
between nations.
My second theme focuses on a particular aspect of this problem, at the same
time as it describes a major boneof contention betweenthe disciplines of cultural
studies and media studies. At the risk of over-simplifying the division of labour
between these disciplines, it may in general be said that cultural studies ^ which
¢rst emerged in the 1960’s on the margins of English Literature departments in
certain British universities and remains chie£y situated in humanities faculties ^
mobilizes methods of textual analysis that are commonplace in literary criticism
to‘read’ other cultural forms such as popular ¢ctionand TV soap operas;
5
whereas
media studies^ still largely basedi n social science faculties ^ focuses on the struc-
ture, organization and ownership of the media industries (including the role
within them of information and communications technologies and the impact
upon them of regulatory mechanisms of various kinds), and thus on the systems
by which artifacts such as Mills & Boon novels and TVsoap operas are produced
and distrib uted. Although cultural studies has an a⁄ni ty with certain varieties of
Marxism ^ in thatit aims to interrogate structures of domination, and in particu-
lar the systematic subordination of popular (including working class) culture ^
practitioners of cultural studies have tended to dismiss the notionthat the forms
taken bycultural artifacts and the processes of their consumption could be deter-
mined by (economic) production relations. Yet while an antipathy to economic
reductionism was apredictable reaction to the theoretical and political excesses of
Marxism, cultural studies has veered in some of its applications towards a near-
complete eschewal ofeconomic or policy analysis ^ while in the process appear-
ing to ally itself, paradoxically yet unwittingly, with neoliberal proponents of
unregulated marketsas sites for consumer choice and self-realisation. Practitioners
3 L. Ray and A. Sayer, ‘Introduction’ in L. Ray and A. Sayer (eds), Culture and Economy after the
CulturalTurn (London: Sage,1999) 1.
4 I here borrow Nancy Fraser’s de¢nition of ‘culturalism’ as a social theory that holds that political
economy is reducibleto culture and that class is reducible to status, wherestatus is de¢ ned‘not by
the relations of production,but rather by the relations of recognition’ (see N.Fraser,‘Social Justice
in the Ageof Identity Politics: Redistribution, Recognition and Participation’ in Ray and Sayer,
n 3 above,25^52, 28 and 51n).
5 cf A. Milner, Literature,Culturea nd Society(London: UCL Press, 1996) ch 1.
Anne Barron
179rThe Modern LawReview Limited 2004
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