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I am preparing to teach a graduate course called Queer/ing Popular Culture this fall, and I decided it was time to get around to actually reading the late, great Alex Doty’s Making Things Perfectly Queer: Interpreting Mass Culture. On this second attempt, it was not only just what I need for this course, but there was also a lot of “Yeah! Right on!” that I don’t remember from when I read the introduction howevermany years ago.

I particularly had an “OMG, this explains things!” moment in the “I Love Laverne and Shirley” chapter. Doty contends that Laverne and Shirley, The Mary Tyler Moore Show, Designing Women, and The Golden Girls should be understood as “lesbian sitcoms” because the primary relationships in them are between women and male love interests are generally transient and not central to the ongoing development of the story or characters.

This relies, of course, on Adrienne Rich’s concept of the “lesbian continuum”: “a range—through each woman’s life and throughout history—of woman-identified experience, not simply the fact that a woman has had or consciously desired genital sexual experience with another woman.” In her 1980 essay “Compulsory Heterosexuality and Lesbian Existence,” Rich proposed that we use this term “lesbian continuum” “to embrace many more forms of primary intensity between and among women, including the sharing of a rich inner life, the bonding against male tyranny, the giving and receiving of practical and political support,” and other woman-to-woman relationships (all quotations in this paragraph as published in The Lesbian and Gay Studies Reader in 1993, p. 239).

In saying that all “primary intensity” between women should be framed as lesbian, Rich was making a political move, calling on ostensibly heterosexual women to recognize their kinship to lesbians on the basis of their deep emotional ties to other women, asking them to “consider the possibility that all women [ . . . ] exist on a lesbian continuum,” because this would let us “see ourselves as moving in and out of this continuum, whether we identify ourselves as lesbian or not” (p. 240), in order that women could band together more effectively toward feminist causes rather than being divided by the specter of lesbianism.

Thus, Doty argues, “in mass culture reception, at least, the idea of a lesbian continuum might be adapted and expanded to include those situations in which anyone identifies with or takes pleasure in the ‘many  . . . forms of primary intensity between and among women’” (p. 42). Doty describes the shows he discusses as “lesbian sitcoms” because they are structured around, and audiences “identify with” or “take pleasure in,” the centrality of women to each other’s lives.

And that got me thinking. In the years since Doty wrote, the ways audiences “identify with” or “take pleasure in” relationships between women in television has shifted dramatically with the rise of large, visible femslash fandom, taking this “lesbian continuum” type of lesbianism and weaving it together with the sexual lesbianism Rich termed “lesbian existence.” It therefore seems to me, first, that it makes sense to call all media (not just sitcoms) that have a relationship between women as the central one, or among the central ones, lesbian media, and second, that to locate lesbian media after the Internet is to locate femslash fandoms.

Moreover, not only do such lesbian media objects generate femslash fandoms (because people kind of literally ship everything), but for lesbian media femslash tends to be comparably voluminous and visible and internet-powerful as heterosexual shipping or m/m shipping—which are otherwise dominant in fandom. Lesbian media generate big femslash fandoms in a way that for other shows femslash is present but more minor.

In Xena: Warrior Princess, for example, the Xena-Gabrielle dyad was the core of the show. Other characters came and went, but the two ladies were what it was about, and lo and behold, Xena was the first major femslash fandom. Moreover, Xena-Gabrielle shipping vastly drowned out any other pairing in the show, and I argue that this is because Xena was a lesbian show in its focus on relationships between women as primary.

Or to take a perhaps unexpected example, recent Disney films Frozen and Maleficent have very central relationships between women, and there is femslash about those relationships despite the respectively literally and figuratively incestuous nature of those woman-woman pairs. Where women are important to each other, it seems to me, strong femslash followings arise.

And I think that being a lesbian media object and producing a large femslash fandom plays out in interesting ways the tension between “lesbian continuum”—women’s primary relations to women—and “lesbian existence”—sexual lesbianism. To take the example of Once Upon a Time, it is also, by this measure, a lesbian television show. The first season revolved around relationships between women—primarily Regina and Emma’s conflict over Regina’s adopted son being Emma’s biological son and Regina and Snow White’s conflict in the past that had led to current events, though there were some other ones as well. Those women’s relationships to one another drove the show. And indeed OUAT had a large femslash fanbase for “Swan Queen,” the relationship between Emma Swan and Regina, the Evil Queen, from the get-go.

This pattern of “primary intensity between women” as the driver continued in the second season, when the primary arcs were about mothers and daughters, supplemented with Emma and Regina starting to learn to trust one another. Season three to some extent broke the pattern, with the first half all about fathers and sons, though there was some more “Regina and Emma learn to trust each other,” and while the back half of the third season was ostensibly about conflict between sisters, romantic relationships with men took a lot of screen time in a way they hadn’t before. The first half of season 4 was much the same dual focus, with one main story arc being about sisters and the other main character spending all her time dealing with a boyfriend situation. The most recent half-season got in many ways back to basics and re-centered relationships between women, with the Regina-Emma relationship developing and Emma having conflict with her mother—importantly, despite the fact that her father also did the thing she was upset about, her anger focused on her mom.

In the second half of the fourth season, both of the leads have some kind of romantic entanglement with men on the horizon, but they are deemphasized, showing what Doty calls a show “introducing, and then marginalizing or eliminating, the men who date or marry its women characters” (p. 57). He notes that “the narrative fact of straight romance and marriage does not necessarily heterosexualize lesbian sitcoms any more than being married makes actual lesbians straight” (p. 57), and indeed for femslashers it hasn’t, as they’ve focused, for example, much more on (spoiler alert) the fact that Emma sacrificed her soul to save Regina in the finale than the fact that she told the boyfriend she loved him for the first time right before.

And it seems that the more “lesbian” the show is, in terms of prioritizing relationships between women as the central arc and having the men more or less fail the Sexy Lamp Test—meaning that they can be replaced by a sexy lamp and not change the story (there has also been a proposal by some in the SwanQueen fandom to speak of a the “No Homo”-Sign Test, in which the men could be replaced by “no homo” signs without changing the story)—the more femslashers like it. Season 1 and the part of Season 2 up until one of the mothers was killed are held up as the golden age of the show for femslashers. Season 3 and the first half of Season 4 are pretty universally reviled among this population. The reaction to the second half of Season 4 is mixed.

And the backlash to SwanQueen fandom has taken the form of trying to push “lesbian existence” back into the “lesbian continuum”—to desexualize and deemphasize the relationships between women. First, there has been an attempt to de-lesbian the show by denying that the Emma-Regina relationship is important: both that it’s not important to either woman, and certainly not as much as their boyfriends, and that it’s not important to the show, because they are not the main characters (despite the fact that the two actors involved get second and third billing).

The second de-lesbian-ing strategy is what Doty identifies in an endnote as “straight culture’s careful maintenance of the line between homosociality and homosexuality (p. 42, n. 9). There is much “They are friends or sisterly and why do you have to sexualize things?” from people who are opposed to the SwanQueen interpretation. This, Doty notes, “only encourages homophobia and heterocentrism, as the homosocial is always considered preferable to the homosexual. If there wasn’t some problem about being labeled ‘homosexual,’ straight culture wouldn’t care if certain straight personal relationships and cultural representations were misperceived as being queer.” And indeed, these responses tend to come along with either overt or implicit homophobia. This also show’s why Rich’s move to claim those friend and sister relationships as on a continuum with sexual lesbianism matters. Pulling these two apart is why people opposed to the SwanQueen interpretation can say that seeing a link between “women being important to women” and “women having sex with women” is “delusional.” Insisting on the existence of the continuum—that these two forms of woman-to-woman relationship exist in relation to one another, and can slide into one another—is terrifying for homophobes but vital to femslashers.

(Doty also notes that “lesbian and gay maintenance of the homosexual/heterosexual line is another matter, as this is concerned with keeping same-sex sex as the central definer of queerness in order to prevent the cultural and political neutralization and domestication of lesbianism and gayness by straight culture” [p. 42, n. 9] and indeed this happens in the fandom too, with some segments rejecting a friendship as acceptable, staking a claim for sexual lesbianism.)

What’s interesting to me here is that, while Doty was telling a macro-level structural story about how shows work, he wasn’t an audience researcher and certainly not in fan studies, and so was not equipped to explain (or, perhaps, even notice) this whole other side to how shows are “lesbian”—nor, indeed, did femslash fandom exist at scale when he was writing. In this way, Doty provides a useful contribution to thinking about why large femslash fandoms coalesce around particular texts, but fan studies work on slash also provides enrichment to how the patterns he identifies play out when actual people get ahold of structurally queer texts.

As I am planning both a) a new chapter on the use of law and legalistic discourse as a point of contestation and language for communication between fans and industry and b) my next project about transformative musical reuse, I am increasingly convinced that what the law says doesn’t matter.

The Robin Thicke/Marvin Gaye case had been on my radar as a major flashpoint for the second project, because it operated at the intersection of the issues that interest me, between a) a strict copyright interpretation that said the song was in the clear and b) one informed by the history of white theft of black music and/or distaste for the gender and sexuality ideologies of “Blurred Lines” itself that wanted Thicke to get nailed for it.

And indeed when the verdict came down the other week, it showed some of the principles I’ve begun to formulate in theorizing these two projects: first, that what people use to decide whether something is legitimate transformative reuse (even juries) is not what the law says, and second, that the value system currently animating legal action is not what the law says either.

In the “Blurred Lines” case, first, the musical elements that the law says are subject to copyright and the factors people use to assess similarity or originality are poorly aligned. Kal Raustiala and Christopher Jon Sprigman argue at Slate that “the problem—and the reason the verdict in Blurred Lines is such a disaster—is that the jury appears to have been swayed by things that were not supposed to matter.”  Legally speaking, Tim Wu notes in the New Yorker, “The question is not whether Pharrell borrowed from Gaye,” because clearly he did, “but whether Gaye owned the thing that was borrowed,” which Wu contends he did not.  Chris Richards at the Washington Post concedes, “Yes, ‘Blurred Lines’ approximates the rhythm and timbre of ‘Got to Give It Up,’” but, he asks, “is that theft? Listen. Both songs have cowbell-ish percussion that plunkity-plunks at a similar tempo, but the patterns are different. Both songs have rich, teasing basslines, but the notes and rhythms of each are dissimilar.”

The consensus from these variously musically and legally trained commentators, then, is that, while there are definitely elements of the song that are similar, the particular similarities are not of a sort that are protected. This is particularly the case given that Gaye’s composition falls under the copyright rules that only protect the written notes, not any of these more intangible or non-notatable aspects of the “feel” that show up in the recorded version.

This leads Raustiala and Sprigman to conclude that “what the ‘Blurred Lines’ team copied is either not original or not relevant,” but I want to contest that point.  By the letter of the law, no: rhythm, background noise, falsetto, funky bass, cowbell, or any of the other elements are not relevant, either because they’re not original to Gaye or not copyrightable or both. But they are clearly relevant to people who hear the songs, and that group includes jurors, which makes these aspects carry weight in legal cases whether they are supposed to or not. What the law says is not how people experience music, and neither is it how people hear similarity. Indeed, we could make an argument that, while none of the individual elements are unique to Gaye, the combination of them is what makes “Got to Give it Up,” and also what makes “Blurred Lines.” That’s not something the law can account for, but it is experientially true, and that has to be taken seriously even if for no other reason than that it impacts court decisions.

The second principle I have been formulating is that who did what to whom matters a great deal. As Richards notes,

An entire generation of American bluesmen died before sniffing the monthly private helicopter fuel budget of the rock-and-rollers who ran off with their sound. Others have settled out of court. And that’s one reason why a cheer went up on social media after Tuesday’s verdict was announced. This time, the young cads didn’t get away with it.

The history of white people stealing black music with impunity has everything to do with why this verdict “feels right” to people. Why, indeed, would the lawyers on the “Blurred Lines” side have gone to such lengths to position Pharrell Williams as the sole author, having Thicke disavow any role in composition and say that he was intoxicated when he claimed to have had a role, if not to try to ward off the specter of white people stealing black music?

Moreover, as Richards puts it, “Many people have a severe distaste for ‘Blurred Lines.’” Certainly, the song first came to my attention through the feminist critique of it as a rape culture anthem, in which Thicke sings that, although the “good girl” pretends not to be interested, he “knows she wants it.” (For a great side-by-side comparison of Blurred Lines with statements of actual rapists, see Sociological Images).  Thus, Wu says, “many find the song’s lyrics and its music video morally objectionable, and it does not help that Mr. Thicke, with his aviators and swaggering demeanor,” is an unappealing figure. To add that the song is stolen, Wu notes, “completes the ‘jackass’ narrative nicely.”

And indeed, the “jackass narrative” and swagger, while legally irrelevant, turned out to be quite relevant. The Gaye estate’s lawyers certainly knew it. Wu notes that,

taking advantage of the fact that Gaye is considerably more popular and respected than Thicke, [they] made a dispute between two groups of wealthy people seem like a battle between good and evil. Rather than focussing on what Gaye’s estate actually owned, the trial became a referendum on Thicke’s character. As for that, the verdict was already clear.

This, of course, is not how the law is supposed to work, but it is often how the law does work, in practice. In a dispute between a person or category that one likes more and a person or category once likes less, interpretation favors the liked. (This, incidentally, is also why murder committed by police on black youth immediately becomes a referendum on character. Legally it doesn’t matter if it’s a “good” person or a “bad” person, because they never deserve to be a dead person, and clearly it is much more serious here than in intellectual property law, but nevertheless it is vital that we take seriously that such things influence whether such incidents are considered legitimate or illegitimate violence.) Therefore, when nasty Thicke was bested by beloved Gaye, “there was far more Schadenfreude than sorrow,” in Wu’s phrase.

However, this case also reveals a second way in which the law doesn’t matter. The point of copyright is to encourage creativity, under the logic that the nation benefits from innovation and innovation will be incentivized through a short-term, government-granted monopoly on otherwise uncontrollable ideas. Thus, as Raustiala and Sprigman argue, while basic fairness might dictate that Gaye’s estate be compensated for the inspiration he provided to “Blurred Lines,”

Basic fairness is not the goal of our copyright system. The reason we have copyright—the reason we protect songs, books, and other creative works for the life of the author plus 70 more years—is to adequately incentivize artists to produce new creative works. Copyright, at bottom, is about ensuring the flow and growth of culture. We encourage new creations by making sure creators know they stand to reap the benefits.

This verdict, according to legal and musical commentators alike, does not encourage people to make more music. To the contrary, they argue, it makes people afraid that what they previously may have regarded as benign influence is now actionable infringement. Raustiala and Sprigman worry that the verdict “may end up cutting off a vital wellspring of creativity in music—that of making great new songs that pay homage to older classics,” hurting not just artists but the very public copyright law is supposed to serve.

This demonstrates the ways in which copyright, at least since the second half of the twentieth century, is increasingly no longer oriented toward encouraging creativity. The original copyright of 14 years plus a 14-year extension encouraged people to create new things. A copyright term for the life of the author would potentially encourage people to create new things for the rest of their lives.

By contrast, extending copyright past the life of the author, as started with the Copyright Act of 1976  (life of the author plus 50 years) and continued with the Sonny Bono Copyright Term Extension Act of 1998 (life plus 70) ensures that your descendants reap the benefits of what they own as the result of being related to you. Setting up separate, longer standards for corporate authors (120 years after creation or 95 years after publication) it ensures corporations get paid for the intellectual property they own. We may think that this is reasonable because those goals are important, but they aren’t tied to encouraging creativity any longer. They may possibly have that effect still, but the basic orientation has changed.

In this new orientation toward ensuring people get paid for intellectual property they own, the casualty is the “flow and growth” of culture, because old creativity becomes permanently fenced off, never available to enrich the ground on which new creation happens. Raustiala and Sprigman contend that “the jury’s verdict casts a huge shadow over musical creativity and takes what should be familiar elements of a genre, available to all, and privatizes them,” and while I’m cautious about declaring things created by marginalized populations “available to all” (see my Fandom, Public, Commons),  privatization is definitely the name of the game.

The orientation toward ensuring the owner gets paid is one toward safeguarding private property. It is not an orientation toward serving the public through creativity, and therefore it is not what US copyright law, in its inception, was for. This is, then, another way in which current legal wrangling is no longer tied to the law—in this case its origin.

In the end, then, while the “Blurred Lines” verdict may have been a miscarriage of justice, it is a very interesting and illuminating miscarriage of justice.

Last night, on a “family show,” families everywhere learned that when a woman says repeatedly over the course of several months that she is not interested in a man, she doesn’t really mean it. They learned that when said man, after the first indication of disinterest, continues to make comments about how he would like to be with said woman, that’s not only acceptable, but going to be rewarded in the end.  The audience was told that even if a woman has acted like she couldn’t stand a man for months and months, if he makes some grand gesture for her she will (should?) acquire romantic feelings for him.

I thought Once Upon a Time and I were on the same page. Strong Female Lead™ Emma Swan told Captain Hook that she had only kissed him as a “one time thing” to thank him for saving her father’s life (which was problematic from the get-go, but I’ll leave it there). She looked at him with disdain when he attempted to put his hand on her back as they left a room together. She explicitly said he was not someone she would “actually kiss” when the villain cursed his lips to try to hurt her. Everything about that said to me that she was in fact not interested in this guy.

Looking at the candidate for love interest himself, just in the last episode alone, Hook directly described what he has been doing as “chasing this woman.” When Emma complained about wearing a corset, he said “Your discomfort is a cross I’m willing to bear,” and then leered at her.  Also, a past version of him noted, “If I didn’t know any better, I’d say you were trying to get me drunk, which is usually my tactic.” Previously, Hook implied that Emma wanted to leave town not because she had another life she liked but because she was afraid to love him, despite all the evidence in the previous paragraph. I thought this was supposed to be creepy. I mean, it was creepy, but I thought it was on purpose and that they knew it was creepy.

(There are many other examples for both, but these are the ones I have offhand and I can’t stomach going looking for more.)

But alas, when we get to the season finale, all of Emma’s “no”-s over the course of an entire season turn into a “yes.” She spends the whole episode flirting with him, at complete odds to her previous behavior, and then they make out.

There are a couple of ways to interpret this. One is that, while her words were saying “no” over and over again, what she meant the whole time was “yes”—and indeed, there were a few moments where they made the acting choice to have her eyes flicking to his lips when they were speaking and other similar instances as a subtext under the maintext of “no.” Under this model, “no” really does mean “yes,” and Hook was not obligated to take that explicit verbal disinterest as “no” and in fact ultimately justified in doing so. (Version A)

Alternately, it could be because, while Emma did really mean “no” at the time, she changed her mind. This could be because he wore her down (Version B).  It could be because she was moved by his sacrifice of his beloved ship (the Jolly Roger) and thought that, much like when he saved her father, it deserved a reward (Version C). It could be because she thought that if he gave something up for her she should give something up to him (Version D).

Versions A and B are Rape Culture. Versions C and D are The Traffic in Women. Let’s talk about each.

Rape Culture, as a conceptual apparatus, describes the ways in which contemporary sexual and gender politics are organized around a belief in men’s inherent right to access to women’s bodies. (This isn’t to say only men can rape or only women get raped [nor indeed that there are only two categories], but as a system of power it’s gendered in that way.) This is the stuff of street harassment (I have a right to look at you and comment on you and a right to a response from you). It’s the logic by which women who dress revealingly or flirt or make out with someone are “teases” if they don’t then “follow through” on what the man is “owed” by their implicit contract.

Rape culture is a very old problem, but where many forms of gender inequality have diminished over time, this one has gotten reinvigorated by some recent popular media.  We see it in Twilight, where Edward behaving in stalker-y ways toward Bella is framed as romantic. (Probably the best line from the famous Buffy vs. Edward mash-up:  “You know, being stalked isn’t really a big turn-on for girls.”) We also see it in Blurred Lines, the lyrics of which have brilliantly been paralleled to the statements of rapists.  The song’s narrator just “knows” the “good girl” “wants it.”  Well golly, that should be good enough for anyone . . .

So while Emma said “no,” she really meant “yes,” or she changed her mind because he was persistent. Hook’s assertion of a right to her body was ultimately legitimated. That’s rape culture.

With calling Versions C and D The Traffic in Women,  I’m thinking of the Gayle Rubin version, not the Emma Goldman version, which I have not read. The key part of the traffic in women for our purposes is that it is a cultural and economic system whereby women are commodities to be sold by men.  It used to be that your parents sold you to a husband (or paid a husband to take you), and as a result you became his property (Fairly literally. Married women didn’t exist as separate legal people).  And as his property you had to do what he wanted (I won’t start on Once’s record on forcible marriage, though I think I will be back next week to write Once Upon a Misogyny (with a Side of Racism) for how they treat the character Regina).

This is, again, an old problem, but, also again, one that persists. The notion that if a man spends a lot of money on a woman she’s obligated to have sex with him is one instantiation of it.  So is the comment at the center of a recent controversy that “compares a man’s obligation to go to work, regardless of his ‘mood,’ to a woman’s obligation to have sex with her husband” (The comment is old, and not as linked to Kentucky Senator Mitch McConnell as it was described to be, but it’s still pretty appalling and a clear version of this logic).

So when Hook gave up his ship for Emma, he bought her fair and square. She owed him something, either consciously as in Version C or more as the result of cultural conditioning as in Version D. Actual quote: “You traded your ship for me?”

And this episode was described by the show’s Executive Producers as “epic wish fulfillment.” It begs the question: Whose wishes? It certainly doesn’t fulfill the wishes of people who were drawn into this show by its strong female leads (Emma and bandit Snow White and the Season 1 villain Regina), because the glorification of rape culture and women as purchasable is incompatible with strong female leads. Does it fulfill the wishes of the Twilight generation (and their moms), who found Edward’s stalking and the Edward-Jacob ownership battle oh-so-romantic? Perhaps.  Does it fulfill the wishes of men who have been trained to see women as something to which they have an inalienable right? Absolutely.

This is profoundly disappointing, particularly from a show that was premised on rethinking fairytales. This isn’t rethinking. It’s more of the same old patriarchy, and its 2014.