the emotional stakes of legal analysis
By Saptarishi Bandopadhyay
In a sense, the Ching Pow: Far East Yardies!! case study is a prequel to cases in the Langdellian tradition. Where the latter begins with the facts elaborated on in a judicial opinion, Ching Pow speaks to the abundance of conflicts that may not get their day in Court. Where a traditional reading of judicial opinions may elaborate on existing rules and precedents, with the judges’ careful and seemingly objective weighing of competing arguments, Ching Pow outlines the early interaction between the creative process and the legal system within which the artist and his works find value. Additionally, the narrative in Ching Pow is designed to have students enjoy the work of filmmaker, Bruce Hart, and thereby invest in what becomes of his efforts.
Ching Pow proceeds with the understanding that before launching into a study of the complex, globalizing system of intellectual property protection, it is important to consider what is at stake. There are certainly financial stakes, but Ching Pow focuses on the extra-monetary aspects of the problem. Ching Pow is a film made on a modest budget, paid for almost entirely by corporate sponsorship, and while Bruce would like to see his film succeed, the case emphasizes his struggle to bring his work before an audience.
Bruce Hart’s story is a microcosm of how a piece of art is made by an independent artist with limited resources and a believable sincerity of intent. Bruce had the innovative idea to take a series of forgotten B-grade martial arts movies (‘Ninja Death I-III’) and—with considerable effort, and collaboration with other artists (like Jamaican comedians Twin-of-Twins)—produce a film with a unique narrative that would appeal to a Jamaican audience as political satire and pop-culture commentary. We’re talking Chinese martial artists and ninjas possessed by the souls of Jamaican politicians and pop-culture idols displaced by an ecological catastrophe in Jamaica.
As an independent filmmaker Bruce found footage of the original movies on a website claiming to supply films in the public domain. By the time the remake was completed, however, Bruce realized that the films did not reside cleanly in the public domain, but rather languished in a grey category of “orphan works” with some traceable copyright holders. The case outlines Bruce’s painstaking and financially draining efforts to locate this copyright holder, beginning in East Asia and circling back to the United States, while simultaneously trying to find creative ways to release his work to a local audience in Jamaica.
With his brand of filmmaking Bruce Hart follows a lineage of transformative use that is well-established in intellectual property case law. However, when the case study was taught last fall in Professor Charlie Nesson’s advanced problem solving course “Internet and Society: Creating the Public Domain,” students had little or no formal training in the subfield and were for the most part unaware of the case law. The few who were aware of past disputes involving mash-ups and fair use did not know the details of the resulting judicial opinions.
Prior to class, the students were given some background literature on copyright licensing, and asked, first and foremost, to consider the value of Bruce’s work, and whether such an evaluation is at all relevant when thinking about legal solutions to his unique problem. Students were encouraged to collaboratively research orphan works and the kinds of governmental policies that would apply to Bruce’s film. Based on their findings, sections of the class debated what a functional “public domain” may look like, and the kinds of scrutiny an individual filmmaker (with little or no institutional support in the form of law firms and studio executives) should be subjected to, when judging whether his film fairly appropriates existing works. In effect, Ching Pow asks students to draw broad conclusions about the stakes underpinning law and policy, at the intersection of an institutionalized system of intellectual property appropriation and the less clinically ordered but nevertheless rigorous and systematic process of creative production. Finally, Ching Pow and the workshop asks students to imagine how legal representation itself may be conducted as a creative process, an art, capable of assisting someone like Bruce Hart.
When Professor Nesson raised the initial questions, students offered ideas, then second-guessed themselves, and finally sought clarifications from the instructor. But perhaps because there was a sense of investment in the possibilities for Bruce and his film, it was not long before other students began to offer their understanding of both American and global intellectual property laws. Their experiences and opinions drew on moral and political theory, cultural criticism, and even literary theory. Without realizing it, the students were often outlining the very same theoretical premises and practical choices that legislators and judges have to struggle with when assessing intellectual property issues. Most importantly, Ching Pow prompted students to think analytically while appreciating the emotional basis of Bruce Hart’s dilemma—recognizing that intellectual property law is ultimately as much about perpetuating personal and cultural legacy as it is about financial gain from private property.
Saptarishi Bandopadhyay is an S.J.D. candidate at Harvard Law School and the co-author of the case study “Ching Pow: Far East Yardies!!”