Well, the case has been the subject of discussion in other forums as well, including the blog of Brendan Riley, an Associate Professor in the English Department at Columbia College Chicago. Although Prof. Riley’s post is somewhat critical of our approach, we thought we should bring it to the attention of the P8TT community, in the interest of a free and open discussion that is edifying to all involved. I’m looking forward to reading your thoughts in the comments, as I’m sure Prof. Riley is as well. — Eden James
By Brendan Riley
There’s this concept in copyright and intellectual property law that I find pretty interesting: moral rights. While this set of rules relates to attribution (citation, etc), it’s also used to discuss the artist’s right to defend the “integrity” of the work. This could include the use of the work in a context outside its intended meaning. America doesn’t really recognize this right. We defend ownership and copying rights, but moral rights don’t have codified space in our legal system.
Except in campaign music. I presume large scale political events license the music they use, but usually those licenses are not cleared with the artists, so you get the famous moments when musicians protest the use of the music in the wrong context. (Think Bruce Springsteen and the Reagan campaign’s use of “Born in the U.S.A.”) It’s usually liberal artists protesting conservative uses of music. I wonder if it’s ever gone the other way?
So I was interested to learn from the Courage Campaign that the National Organization for Marriage (which seeks to prohibit marriage, oddly) had been sent a Cease-and-Desist letter because they were playing the Peter, Paul, and Mary recording of “This Land is Your Land.”
Peter, Paul, and Mary love the marryin' gays
In the Courage Campaign email, they write:
Kathleen Perrin, a frequent commenter on the Prop 8 Trial Tracker, was stunned and deeply offended that NOM was using this beautiful folk song to drown out the chants of equality counter-protesters. Kathleen knew that Woody Guthrie and Peter, Paul & Mary unequivocally supported justice and equality for all.
This is a really interesting moment because of the usual copyright conditions attached to “This Land is Your Land.” Woody Guthrie famously released it under the first creative commons license:
“This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”
So we have here someone advocating freedom and sharing, and another group from another era picking up that spirit and using the song again, and another group re-purposing that song in ways the original creators disagree with. Some thoughts:
From a legal perspective, it seems like PPM could stop NOM from using the song by refusing to license it for public performance. Since those rates are negotiable (unlike radio-play rates, for instance), there might be some traction there. I wonder if the NOM could get around it by hiring a radio station to play the song on a loop for a while (as a patriot day or something). Then they could just play the radio broadcast over their speakers.
But nothing would prevent them from using a different group’s cover of the song, or recording their own to play.
Probably the most effective part is the public announcement of this disagreement. On one hand, the people choosing the song wanted some traction from the PPM recording because it’s nostalgic. By publicly disagreeing with the use of the song, PPM calls attention to it and disrupts that pleasant nostalgia.
On the other hand, it seems like there’s a whole other angle here about the commodity-fetishism effect, in which PPM’s “This Land is Your Land” does more much to evoke positive memories of the 1960s than to evoke the political ideas that drove those movements. Even a rudimentary reading of the “Free Love” era would suggest that it’s clearly antithetical to Prop 8. Of course, many of the Baby Boomers are now conservatives, but they probably don’t think of themselves as no longer connected to their music. But it goes to the power of music to operate on valences other than the rational — we like the song, we enjoyed the era, therefore it’s nice. It doesn’t matter that the music actually says something opposed to what I want.
Like protecting marching Nazis, I tend to side with the NOM in terms of rights. I don’t agree with the idea of moral rights beyond the copyright period. If we really want to be able to have a vibrant, creative culture, we need to allow for the possibility that art will be used in ways the original artist wasn’t intending. I also think it’s amusing that the Courage Campaign email slipped Woody Guthrie in there, as if he’s also one of the signatories. I’m sure Arlo could have gotten on board. More importantly, having published it under the cc-like license above, would Woody step up and complain? Would he try to take legal action to stop it?
At the same time, I also appreciate that modern media gives moral rights a new kind of power, as artists like PP&M can make their disgust with groups like NOM clear and public.
I’ll file this away to discuss with my New Media students — we spend a lot of time talking about copyright and its importance or use in culture. The instinct is that artists should be able to control their work is a strong one when students think about their own work, but they also want to rip/mix/burn. Cognitive dissonance, ahoy!
Edit: As I read this, I realize it might be unclear which side of the debate I fall on, perhaps. I firmly believe that gay marriage is a fair and just idea, one we should all work for.
Not sure when or where or why she said it. But according to Southern Baptist Theological Seminary president Albert Mohler Jr., writing in the 2008 book The Popular Encyclopedia of Apologetics: Surveying the Evidence, National Organization For Marriage chair Maggie Gallagher did in fact say this about gay people:
(*NOTE: quote starts in highlighted right column, continues in left)
Okay, first off: Ridiculous! “Homosexuality did not exist”? There is homosexuality in the historical record dating back as far as it goes. Some of these reports are more likely and valid than others, admittedly. But to act as if two men and two women were nothing more than “sodomy” or “buggery” partners prior to the nineteenth century is as silly as saying that dinosaurs never existed. Oh wait a minute…
But beyond just denial, there’s also the element of perspective. There are many, many things that were considered taboo or forbidden or, conversely, acceptable, that we now look back on with humor, embarrassment, or shame. Because that’s what society does: Learns and grows from its mistakes, ideally remedying all past oppressions within a more enlightened people’s powers.
Of course there aren’t glowing reports of weekly gay unions from the year 1100 — gays, witches, liberated women, and those with the crazy theory that the world was round (among many, many others) were all too busy watching their backs to write any of it down. Many were shamed into silence or repression or worse. Much, much worse.
So we’d seriously caution Maggie about showing unqualified nostalgia for past human treatments, even if she’s only feigning these feelings for her own political purposes.
A new National Review editorial that Maggie Gallagher calls the “single best piece I’ve read on the subject” of same-sex marriage features lots of the usual, increasingly-rejected arguments about procreation and slippery slopes. It also works the same “they’re gonna call us bigots!” victimization routine that Maggie’s National Organization For Marriage has taken on as their number one strategy as of late (while, of course, not taking responsibility for the “why” of that possibility). So since the piece is an amalgamation of what we take on here, nugget by flawed nugget, every single day of the work week, we’re not gonna pick the whole darn thing apart in this post.
We do, however, want to look at one particular segment that somewhat sums up the skewed mentality that underlies every last bit of our opposition’s marriage bias. Namely, this snip:
“Same-sex marriage would introduce a new, less justifiable distinction into the law. This new version of marriage would exclude pairs of people who qualify for it in every way except for their lack of a sexual relationship. Elderly brothers who take care of each other; two friends who share a house and bills and even help raise a child after one loses a spouse: Why shouldn’t their relationships, too, be recognized by the government? The traditional conception of marriage holds that however valuable those relationships may be, the fact that they are not oriented toward procreation makes them non-marital. (Note that this is true even if those relationships involve caring for children: We do not treat a grandmother and widowed daughter raising a child together as married because their relationship is not part of an institution oriented toward procreation.) On what possible basis can the revisionists’ conception of marriage justify discriminating against couples simply because they do not have sex?“
Sex. That’s where these opposition voices begin and end with us. Heterosexual married couples have love, commitment, companionship, shared goals and dreams, combined financial means, rights, privileges, tax breaks, PTA meetings, and entitlement to the easy marital currency that will be painlessly recognized in hospitals, courts, tax bureaus, and anywhere else where the one with whom a person has pledged a life commitment most comes into play. But gay couples? Well, we’re just friends who like to play with each others’ genitals, dontcha know? Like a pair of friends who are having so much fun exchanging orgasms that they decided to turn it into a permanent sleepover with their favorite bunkmate.
Now, these social conservatives have of course set up this heterosexual procreation argument because they think it’s the one thing we cannot refute. But marriage is not and has never been based around the ancillary component of children. Not fully. And nowhere else, other than in the confines of a politically-charged conversational contrivance like the one Nat’l Review‘s editors have proffered onto their partisan pages, would anyone debate that fact.
Human beings the world over know what love and marriage is, and we all know it goes well beyond whether or not the couple (homo or hetero) chooses to invoke on a path filled with diaper changes and Dora The Explorer DVDs. We know that Harry and June, sixty and childless even after being married for forty years, are no less nuptially-bonded than a teenage couple who spend their honeymoon in the maternity ward. We know that Bob and Joe, Sigma Delta Beer Bong brothers and roommates, have much more than sex separating their relationship from friendship to loving union (and that one drunken sex session isn’t enough to change that, so stop worrying, Joe).
We also know that marriage is one way that many committed couples choose to solidify this, the ultimate declaration that there’s more to this bond than just high fives and tenuous shared interests. And most importantly: We know that if one kind of couple within the known, scientifically-recognized spectrum of sexual orientation is included in the CIVIL system that we call marriage, than *ALL* couples who fit within this span are also to be included.
Oh, and some of us know that this is no longer a request: It is a demand.
*UPDATE: Now to be fair, Nat’l Review tries to blow off our beliefs by claiming that same-sex marriage advocates raise these three points:
The first is that law and society have always let infertile couples marry; why not treat same-sex couples the same way?
The second objection proponents of same-sex marriage raise is that the idea that marriage is importantly linked to procreation is outdated.
The third objection is that it is unfair to same-sex couples to tie marriage to procreation, as the traditional conception of marriage does.
And then they give the usual convenient reasons for why these points are supposedly faulty (hetero couples still have poss. of mating, the pregnancy connection is timeless, no animus is intended, etc.). But the problem? Well, in their strawman-like insistence on boiling down our arguments to three convenient claims, they fully overlook some of the more pertinent points that we raise. Points like:
1) That civil marriage laws do not speak to the ancillary component of children AT ALL, so the only way for these personal arguments about acceptable reproduction to come into play is for the religious right to start working toward procreation amendments rather than gay marriage bans.
(2) That when it comes to marriage’s supposed “tradition” and history, our modern opponents have no leg to stand on when it comes to marriage supposedly being the thing that we know it to be today.
(3) That nothing same-sex couples do or do not do in terms of their freedom to marry changes any of these beliefs, opinions, or even truths about marriage as we have known it!
And there are others, of course. All building on the actual reality of the world. One where gay people are born. Where gay people give birth. Where gay people contribute to births. One where the only folks who are playing politics with procreation are the social conservatives who look at the unique role that gay people play in the life chain, then take it upon themselves to decide that this role is to our society’s collective detriment.
Perhaps it’s time they embark on a National Re-Review.
(Over my first few weeks here on the Prop 8 Trial Tracker, I’m going to reprint a few — just a few — prior entries from my blog at Waking Up Now. The story of Ron Hanby and Mark Goldberg is one that everybody ought to know. First, because it’s a wrenching story that should open all but the coldest of hearts. Second, because it shows we need full marriage equality on a national scale. And finally, because it demonstrates the nightmare world that NOM wants us to inhabit. — Rob)
by Rob Tisinai
Ron Hanby, struggling with depression, took his own life on October 2, 2008. Mark Goldberg, his partner of 17 years, battled Rhode Island bureaucracy for weeks before the state would release Ron’s body to him. Ron had no living relatives. The couple, however, did have:
power of attorney documents
and a Connecticut marriage certificate (Rhode Island doesn’t permit same-sex marriage or even civil unions)
None of that mattered in Rhode Island. Mark spent every day of his immediate grief on the phone with state officials, trying to get his husband’s body out of the morgue. Finally, after four weeks, a state bureaucrat took a special interest and helped him get Ron’s body released.
One good thing came out of this: Rhode Island’s state legislators wrote a bill creating funeral rights for domestic partners. They passed it in a bipartisan show of humanity: 63-1 in the House, unanimously in the Senate. And the Republican governor vetoed it.
Now the National Organization for Marriage is urging legislators not to override that veto. Chris Plante (executive director of NOM-RI), has written to them:
[T]he proposed legislation simply is not necessary… The right of any person, without regard to sexual preference or relationship to the decedent, to serve as a designated funeral-planning agent is already expressly guaranteed by Rhode Island Law 5-33.1-4. That statute only requires a simple notarized form naming an agent.
Ah, yes, Rhode Island Law 5-33.1-4. Of course. And what can we say in return except:
Thank you Mr. Plante!
We keep hearing that same-sex marriage isn’t necessary, that we can secure civil equality by visiting lawyers and drawing up contracts. That’s false, but people don’t always understand that. Luckily for us, Mr. Plante has taken this argument into the realm of satire: Mark and Ron had wills, power of attorney, and an actual marriage license? Simpletons! They should have known to go to a notary and designate each other as funeral planning agents, pursuant to R.I. Law 5-33.1-4!
Franz Kafka wrote this kind of satire. The term “Kafkaesque” describes a world in which “characters lack a clear course of action, the ability to see beyond immediate events, and the possibility of escape. The term’s meaning has transcended the literary realm to apply to real-life occurrences and situations that are incomprehensibly complex, bizarre, or illogical.”
I called the Police to our home where the death occurred and in two hours they performed their investigation, offered their condolences, removed Ron’s body and left our house. No one offered any information on what I was to do next. No phone number to contact the detective in charge, no information on where they were taking Ron’s body, no information on what I as his partner for so many years should do next.
Ron had no next of kin other than me. I shared our Wills, Living Wills, Power of Attorney and Marriage Certificate to the Police Department, Medical Examiner’s Office and the Department of Health, but no one was willing to see these documents. The State Law stated that a two week search for next of kin must be done. The Medical Examiner’s office waited a full week before placing an ad in the Providence Journal. After no one responded they waited another week to send paperwork to the Health and Human Services Department listing Ron as an unclaimed body. During this four week process, I was on the phone every day trying to convince someone, anyone, that I was the person claiming Ron’s body. The same response came back to me every time; “It’s State law, our hands are tied, there’s nothing we can do”.
I attempted to place an obituary in the Providence Journal and again, I was denied because we were not blood relatives, and the Journal had to comply with state rules. GLAD, the Gay and Lesbian Advocacy and Defenders could not help me because our bond was not recognized in the State of RI. After four weeks an employee in the Department of General Public Assistance of Human Services took pity upon me and my plight. She reviewed our documentation and was able to get all parties concerned to release Ron’s body to me.
Mr. Plante and NOM look at this nightmare and say, No problem. Because, after all, Mark and Ron could have avoided it simply by following the instructions in Rhode Island Law 5-13.1-4.
I’ll make a deal with NOM: If they specify every law, every form, and every contract – in every state – that gay couples need to pursue in order to secure their rights as a couple, than I’ll do the same for straights. In fact, I’ll provide a complete and exhaustive list for straight Californians right now:
But I doubt NOM will return the favor. They don’t want us to have any rights and benefits of marriage. Mr. Plante is clear about his reasons for opposing the funeral rights law.
[T]he legislation in question is actually an exploitation of Mr. Goldberg’s tragedy by the homosexual-marriage activists in Rhode Island. Despite their claims to the contrary, these bills serve simply as “Trojan Horses” for homosexual-marriage. In California and Connecticut…courts found that when rights of domestic partners, under either that nomenclature or as “civil-unions,” were expanded…that the State must by extension fully recognize homosexual marriage…
As such, NOM – Rhode Island respectfully requests that you vote to sustain the Governor’s veto both to avoid creating unnecessary law and to not move Rhode Island closer to recognizing homosexual-marriage.
NOM doesn’t just oppose marriage equality. They don’t just oppose robust civil unions or watered-down domestic partnerships. They oppose anything that might constitute even the slightest formal recognition of our relationships. They want instead to send us running down a thousand different legal avenues in a labyrinth that they’re lobbying to turn against us.
Franz Kafka won a place in literature by creating a vivid and chilling world of bureaucratic brutality. That’s the world in which NOM wants us to live.
UPDATE: The Rhode Island legislature did override the veto.
(Matt Baume, who blogs at Stop8.org produced a video response to NOM’s radio ad released a few days ago, inspired partially by the work of Prop 8 Trial Tracker contibutor Rob Tisinai. We liked it so much, we asked him to write this guest post for the Prop 8 Trial Tracker community. — Eden James)
By Matt Baume
As a journalist, it drives me nuts when someone tries to manipulate the truth. When I catch someone telling a lie, I can’t resist unraveling it. And I’m really glad to be able to unravel lies as big as the National Organization for Marriage’s, and to share that unravelling with the Prop 8 Trial Tracker community.
From the moment I heard it, NOM’s new radio ad drove me so crazy: it wasn’t just misleading, it was simply untrue. I mean, just look at what they’re claiming: Judge Walker ruled that heterosexual marriage is unconstitutional? No, of course he didn’t! That would be ridiculous. I mean, come on.
I know videos like these won’t change nearly as many minds as one-on-one conversations will. When I attended Camp Courage in Oakland last year, we learned all about the value of personally sharing our stories. But my hope is that videos like these can help folks keep our focus on the facts about marriage equality, rather than getting pulled into NOM’s bizarre distorted universe.
Like a lot of folks, I didn’t start really paying attention to marriage until 2008. Back then, all of San Francisco was jubilant over the California Supreme Court finally allowing gay couples to get married. But I saw Proposition 8 steamrollering through the celebration, and a sputtering campaign that just wasn’t up to the task of pushing back.
At the time, everyone wanted to contribute as best they could, and for me, that meant picking up a camera. I’ve been making short films and videos for years, and I knew I could help get the word out about why marriage equality matters.
I started by interviewing couples affected by marriage equality. I met Michael and Tom, who wanted be married for the sake of their child. Leah and Barb fondly recalled the happiest day of their lives. And Cynthia and Eva weren’t married yet, but were hopeful that they’d be allowed to when the time came. I set up Stop8.org to tell stories like theirs.
After Prop 8 passed, Stop8.org became something new: a clearinghouse for news about the ban, and the fight to overturn it. Over the last two years, I’ve watched the news every single day, and compiled weekly reports about how peoples’ lives have changed since Prop 8’s passage.
In the aftermath, I saw a surge in grassroots power, bitter fighting over which year to return to the ballot, and a resolve to continue pushing forward. Especially in the last few months, that resolve has been buoyed by court victories and a rapidly turning tide of public opinion.
I’ll keep reporting the facts about marriage equality, whether it’s through news reports or in videos. And I could always use a hand — if you’d like to help me to produce more videos like this, or just to help spread the word, drop me a line at email@example.com.
And you can always just go ahead and make your own. It’s easy. After all, I’m just one guy with a camera, an iMac, a few hours to spare, and a husband to lend his support.
Next time NOM or their allies release factually incorrect information — and they’re pretty much guaranteed to do so — let’s all be ready to fight back with the truth.
It’s clear that ever since Brian Brown stepped in for Magger Gallagher at the National Organization for Marriage, the group is becoming more and more of a fringe organization. Even so, they surprised me today with an entry on their blog. You know what they did?
They referenced World Net Daily.
NOMblog has an entire entry quoting 9 paragraphs of a WND editorial. That’s astounding. If you’ve never heard of WND, that’s because they’re waaaay on the extreme edge of America’s political conversation. Take a moment and scroll down their homepage to see what I mean. Not only did they publish a forged “Kenyan” birth certificate for Obama, not only did they break a “story” about secret emails between Obama and the Kenyan government, not only do they search for reasons to call Obama a Muslim, but they still haven’t given up on birtherism.
And, of course, as you might expect, they hate teh gays. They long for the good ol’ days when homosexuality was illegal, and they present video commentary saying Uganda is right in its attempt to execute gays.
Oh, and they worry Obama wants to create Nazi-style concentration camps for political opponents in the US.
As far as I know, NOM has never linked to WND before. This is a huge change in tone for them. Frankly, from a strategic point of view, it doesn’t even matter what the article said. Merely citing WND is enough to call your credibility into question, even in some quarters of the Right.
Under Maggie Gallagher’s leadership NOM labored mightily to be seen as a serious organization, the kind CNN might call on for a debate about marriage equality. Now that Brian’s in charge they seem increasingly politically tone-deaf, like a drowning organization flailing in every direction for something to grab on to.
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