Fair Use, DH, and the Kardashians
This week, the Praxis cohort heard from Brandon Butler, UVA’s Director of Information Policy, who gave a fascinating talk on the evolution of copyright law and the meaning of intellectual property. He covered the U.S. Constitution’s intellectual property clause, the rolling boundaries of public domain, and the shift from monetary value to cultural value as a metric in the decision of Fair Use cases.
Understanding Fair Use holds important implications for all academics, and the Praxis Program is no exception, especially given the subject of this year’s project: the Kardashians. Considering the Kardashians know a thing or two about how to make money off of selling their likenesses and names, it’s crucial that we understand Fair Use, as the Praxis cohort jumps into studying images and texts created by this family.
After listening to Brandon, we learned some key tenets of Fair Use like articulating the scholarly purpose of your work that uses original copyrighted material, proving your work has transformed the original in some capacity, and/or showing that the reproduction of copyrighted material does not inhibit the creator’s ability to profit from that original work. He also hipped us to the Center for Media and Social Impact, which offers great guidelines of best practices regarding Fair Use and the reproduction of copyrighted materials.
Over the past few months, we have collected Tweets, Twitpics, transcripts of Keeping Up with the Kardashians, US Weekly articles, fan fiction stories, and Instagram images to create our archive of the Kardashian media ecology. In an effort to maintain transparency and accessibility, we had kicked around the idea of making this archive accessible through the website we’re building. Now, we’re rethinking that goal, but forging ahead with a project that will rely heavily on copyrighted materials.
But what’s really at stake in engaging with their copyrighted or trademarked material? Let’s take a quick look at a recent example of Kardashian jurisprudence.
Last month, Kylie Jenner lost a legal battle with pop singer Kylie Minogue to trademark the name “Kylie.” For those who don’t know, the nineteen-year-old Jenner rose to fame as one of the stars of Keeping Up with the Kardashians, and is the youngest child of the Kardashian/Jenner matriarch, Kris Jenner. She’s been on a reality television show since she was nine. Who can blame her for thinking that she should trademark her name?
And in the mode of the Kardashian family business model, Jenner wanted to turn her name into a licensed brand that she uses to sell her line of Kylie Cosmetics. But Minogue already owns www.kylie.com, and her millions of fans all over the globe know her simply as Kylie. According to a recent Billboard article about the case, Minogue has sold over 65 million albums in a career that dates back to 1988. Clearly, Minogue held something of a precedent regarding the use of the name. In other words, Jenner is influential and carries a certain amount of media power, but she’s no Kylie.
Although copyright and trademark laws are certainly different animals, it’s safe to assume that someone who tries to trademark a name might be interested in a project that is digging into and trying to map their family’s media ecology - the very essence of their presence in the world. They are, after all, a family who makes a substantial living monetizing their likenesses and names via copyright and trademark, establishing themselves as the embodiment of celebrity power in the process.
And if they are truly the current archetypes of “famous for being famous” based on curated images of themselves, then how do we think critically about the Kardashians without gathering these copyrighted and trademarked materials and, in some cases, reproducing them to further our analysis? Well, we don’t. So we will be reproducing some credited but copyrighted images on our site. Luckily, Fair Use goes before us.