Jane M. Gaines


I had some reticence about doing a talk about legal culture because my work had moved so far away from it in recent years. In the process of rethinking a book that was published in 1991,1 however, I was surprised to discover some carry-over issues, as most scholars must find when they undertake this exercise. But my new area of interest seemed to be so far afield from the earlier one. In 1991, I had been working on the most banal objects of consumer culture-t-shirts and key rings-and now I was working on the legacies of slave culture in the representation of blacks in early United States cinema. The thread, I think, has to do with a fascination with the way things that are originally unpropertylike become property. Corollary to this is the probability that human beings, when defined as property, will defy attempts to turn them into things, will chafe against all of the constraints that this entails-from the transfer of ownership to bodily violations. It is a stretch to go from the absolutely crass and apparently inconsequential topic of licensed character merchandise to the unquestionably serious history of human enslavement and liberation. The connections may not be immediately obvious, particularly given the unfettered trade and accelerated expansion of the entertainment industry and all of its adjacent and subsidiary industries, including advertising and merchandising. The surface distinction concerns me less than the shared legal and philosophical underpinnings - the assumptions about property that literally hold these high-flying and wild-riding industries together and the way litigation threatens to make parts of them come unglued at the same time that it glues them back together pretty much as they were.

When it comes to entertainment law, I really am an iconoclast: My interest in legal culture has been motivated by an interest quite unlike - indeed significantly unlike - the interests of the legal profession. What attracted me to the doctrines of entertainment law was something that struck me as nonsensical in the case law, something that, on closer examination, I had been working on already for several years in my life as a film scholar. Certainly, I had found humor in some of the cases that I studied in my book, Contested Culture: The Image, the Voice, and the Law. For instance, what originally fascinated me about the "Dracula" case, in which Bela Lugosi's relatives tried to enjoin Universal Films from using his image on posters, key chains, and cocktail stirring rods, was the idea that Lugosi could return from the dead to claim his rights. The legal question presented was: Did Lugosi's privacy rights survive him? If they did, Lugosi would, in effect, return from the dead to reestablish his claim to his image, thereby warding off Universal Pictures, his former employer, like a charm. A similarly absurd issue arose when Jacqueline Kennedy Onassis's lawyers argued that the look-alike hired by an advertising agency to appear in an ad for Christian Dior clothes invaded Onassis's "right of privacy." Did Jackie Onassis have the right to enjoin the body of a woman who looked like her merely because she looked like her? My interest in "look-alikeness," as well as "sound-alikeness" in the case of Nancy Sinatra's voice, was in part an attempt to consider similarity in a philosophical way - to look at the ramifications of the assumptions that not only underlie entertainment law but also provide a foundation for copyright law. Whereas the general public may think that copyright law is all about similarity, it is, as we know, actually all about and only about copying. Yet these questions of similarity and the right to copy, even the problem of the posthumous privacy right, are only surface questions, surface indicators. In retrospect, I think, in writing a book about the consequence of the seemingly inconsequential object of entertainment law, I was really trying to probe something else, and I will get to that something else below.