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Category Archives: current events

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.


Toy company Goldieblox recently released a video of girl children rejecting the narrow toy options available to them and instead engineering a Rube Goldberg machine out of typically feminine toys to the soundtrack of the Beastie Boys’ classic 1986 song “Girls,” rewritten to have pro-Girls-in-STEM lyrics.

Controversy ensued. It was seemingly contained to the feminist internet or the technology/copyright internet, and happening in parallel in them with little cross-pollination except for feminist copyright scholars, so those not hooked into those circuits of knowledge circulation may have missed it. (I’d embed or link to the video but it no longer exists in that form.)

I’ll admit that my first thought when I saw the video was “That’s so cool of the Beastie Boys to authorize this!”

I then immediately had to revoke my own scholar card, because the whole point of fair use is that copyright holders don’t have to authorize it.

But after I copied out Section 107 of the copyright code 50 times in penance, I kept reading the various takes on it that went across my Twitter feed. And this tweet

baymtweetfrom @nancybaym (retweeted to me by @mikemonello) was when I knew I had to write about it:

This is an incredibly powerful example, and Baym is entirely right that such a parody would provoke horror in a lot of people (me included). And while in one sense it is a valid parallel, because it would involve a re-user producing a song dramatically opposite to the message of the original for the purposes of advertising, in another sense the two aren’t comparable at all.

A more powerful social position (pro-gun) co-opting a less powerful social position (pro-peace) just isn’t the same as a less powerful social position (pro-girl) co-opting a more powerful social position (wildly sexist). The Goldieblox controversy, that is, is a textbook example of the argument I’m starting to formulate: The meaning of an act of reuse depends on who’s doing it. (Not legally, of course, but culturally and maybe even morally.)

To know what to make of the Goldieblox “Girls” parody, then, “Who’s doing it?” is the key question.

Are they pro-girl transformative creators who only preemptively sued out of a need to protect themselves from beastly Beasties and their lawyers? (Also, is pre-emptive suing to have works declared non-infringing becoming more common [cf. Robin Thicke/Marvin Gaye], or am I just paying more attention now?) This is how their defenders and those focusing on the message of the video have portrayed it.


Or are the Goldieblox folks cynical opportunists who wanted to trade on the familiarity of “Girls” or the cognitive dissonance of the new lyrics against the misogynist original or who hoped there’d be attention-generating controversy?


My contention is that we get such wildly divergent responses to the piece because it’s not clear who’s doing it. Likely we’ll never be able to definitively answer that question, and in some sense they’re both of those things. Perhaps there’s an aspect of Rorschach testing here: What you see in this case indexes how you see the world generally.

However, Felix Salmon notes in the article linked by @mikemonello above, “Given the speed with which the GoldieBlox complaint appeared, indeed, it’s reasonable to assume that they had it in their back pocket all along, ready to whip out the minute anybody from the Beastie Boys, or their record label, so much as inquired about what was going on.”

This tips it much farther to the opportunist side—knowing about these legal machinations makes the “just pro-girl” reading much harder to sustain. But the feminist interpretation is still there, and it inclined a lot of people to support the video, even with the copyright infringement angle. Indeed, if Goldieblox had been less antagonistic there’s every chance the balance of support would have been in their favor.

But, as Salmon points out, “GoldieBlox neither sought nor received permission to create these videos: it never licensed the music it used from the artists who wrote it. That wouldn’t be the Silicon Valley way. First you make your own rules — and then, if anybody tries to slap you down, you don’t apologize, you fight.”

With further analysis, then, Goldieblox looks increasingly unlike an underdog.

In a Gigaom piece, (via @sivavaid), Jeff John Roberts says, “A quick visit to GoldieBlox’s website reveals terms of service that are about as reasonable as the Spanish Inquisition; the terms includes gems like this one: ‘We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website.’”

The idea that a hyperlink needs a license shows them to be a) unfamiliar with how the internet works, b) unfamiliar with standard conventions of writing offline or on, and c) copyright maximalists when it’s their stuff, i.e. hypocritical.

Roberts adds, “At the same time, the Beastie Boys themselves long-ago eschewed the sort of beer-swilling sexism of their debut album, and became advocates for women amidst a general hip-hop climate of misogyny.” So even as Goldieblox looks less good when you look more closely, the Beasties are less bad.

And this sort of nuance is exactly why I contend that we have to tease this stuff out, to parse as precisely as possible who’s doing what to who and how.

Corynne McSherry demonstrates in her analysis for the Electronic Frontier Foundation that the Goldieblox video is probably fair use by the four-factor test. However, if this cultural moment shows anything it’s that it’s the cultural lives of intellectual property (to use Rosemary Coombe’s title) that are far more interesting.

As I wrap up my current project on industry’s recruitment and normalization of particular fans and fan practices and begin the pivot to the next project, which is about musical intertexts in remix, mash-up, and cover songs, I have had the good fortune of discovering several interesting things to talk about.

First, I came across the musical genius of Jimmy Fallon, both the series in which he and The Roots join a musical guest to do a rendition of their hit song with children’s musical instruments (e.g. Mariah Carey’s “All I Want for Christmas is You”) and his outstanding impressions (compilation), both of which will be great to talk about in terms of transformative use. All of that is definitely going in the book.

And then came what Paul Barrett at Businessweek called “a really apologetic lawsuit” from pop star Robin Thicke (who did a Jimmy Fallon children’s instrument rendition of “Blurred Lines”) against the heirs of Marvin Gaye.

The backstory is that Gaye’s heirs feel that Thicke’s hit “Blurred Lines” infringes on Gaye’s song “Got to Give it Up” (and Funkadelic’s “Sexy Ways,” though the Gaye estate has no standing on that claim) and threatened to sue if they weren’t paid royalties. In response, Thicke preemptively sued to have “Blurred Lines” declared not infringing.

Media and law scholar Siva Vaidhyanathan notes in his Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity that “Federal courts ask two questions to determine whether a song infringes on the copyright of an earlier song. The plaintiff must show that the second composer had access to the first song and that the second song shows ‘substantial similarity’ to the first” (p. 127).

Barrett’s piece says “The songs are definitely similar: heavy bass line, falsetto vocals, lots of loose percussion and background noise. They’re fun and bouncy.” He adds, “If that constitutes a copyright violation, Thicke and his colleagues are on the hook.” My own analysis (untrained, which I’ll need to fix before I write this next book) leads me to think that there may be a claim for infringement on the bass line, but if the notes and arrangement of that are not in fact similar there’s no case.

Vaidhyanathan tells us that “Copyright regulates (but does not necessarily forbid) performance, transformative works, slight and oblique reference, and even access” (p. 125), and that “slight and oblique” part is where Thicke may be in trouble.

However, the things that are similar between the two songs—the rhythm, the “feel”—are not things copyright is very good at protecting, for better or worse. As Anne Barron noted in Introduction: Harmony or Dissonance? Copyright Concepts and Musical Practice, for a special issue of Social & Legal Studies, “Copyright law, it is said, adopts a narrow conception of music [ . . . ]. It tends to equate music with a score, or at least only protects what can be easily notated in the form of a score. One consequence of this is that it privileges certain musical elements that happen to be important in ‘classical’ music—notably melody and harmony” (p. 26).

However, the law has a “poor vocabulary” when it comes to “rhythm, pitch, nuance and gradation outside the steps of the diatonic/chromatic system, as well as vocal inflection and timbre” or  “non-standard pitches and non-discrete pitch movements (e.g. slides, slurs, blue notes, microtones); irregular, irrational rhythms and rhythmic details; nuances of ornamentation, accent, articulation and performer idiolect; and the sound qualities enabled by new techniques developed in the recording studio” (p. 30-1).

So, the kinds of things that are similar across the two seem to fall into that category of things that’s poorly protected. Even if colloquially we can “hear” similarities between the two compositions, even if, as one comment on the Businessweek piece claimed, “Thicke said in an interview that Marvin Gaye’s song was the inspiration for Blurred Lines and that he wanted to write a song like Got To Give It Up,” that doesn’t necessarily add up to copyright infringement in the eyes of the law.

Barrett quotes the lawsuit as saying, “Plaintiffs, who have the utmost respect for and admiration of Marvin Gaye, Funkadelic, and their musical legacies, reluctantly file this action in the face of multiple adverse claims from alleged successors in interest to those artists,” and that’s another interesting twist.

There’s been a good deal of work on sampling (which my upcoming project builds on to ask similar questions about remix, mash-up, and cover songs) that argues that to sample something is to say “‘Hey, I dug this, too” (Vaidhyanathan p. 136).

To use a sample, Barron says, is not to take a “shortcut,” but a way of referencing the sample’s “cultural references and resonances, its status as a kind of aural icon that gathers together a network of associations and experiences [ . . . ]. The value of what is taken in these circumstances is deemed to lie as much in its place within the collective memory of a community of listeners as in the creativity of an author.” (p. 34).

This seems to be the same logic that informs Thicke’s engagement with the respective work of Marvin Gaye and Funkadelic: I like this thing. I want to show that I like it and participate in its tradition while I am doing something new.

Of course, power differentials matter in all this. David Hesmondhalgh’s Digital Sampling and Cultural Inequality uses the example of how Moby sampled African American blues musicians in a way that relied on his privilege and their unprivilege to contend that responses to sampling have to account for such inequalities.

While, as Vaidhyanathan notes, sampling can be “a political act—a way of crossing the system, challenging expectations, or confronting the status quo” (p. 136), this isn’t true of every sample, only those where the powerless take from the powerful, as with Schoolly D sampling Led Zeppelin, whose guitarist The Simpsons called  “one of the greatest thieves of American black music to ever walk the earth.” When Moby or Jimmy Page did it to blues musicians, that is, it meant something very different.

Thinking through these issues in other forms of musical intertextuality, in the Thicke case it’s important to think about what it means for a white musician (he’s the face of the song even if it was co-written by African American artists) to be drawing on the style of a black musician (giving credit) while managing to skirt the requirements of law for actually paying that musician’s heirs.

And in that these are exactly the kinds of things I’m interested in in this new project—how musical texts reference older ones, with what purpose, and how this is inflected by law, economics, and racial and gender inequality—it’s really exciting to get to see them playing out in real time, and I’ll be following this case closely.

I want to talk about a young black man subjected to violence by a law enforcement figure. No, not 17-year-old Trayvon Martin, stalked and killed by a vigilante neighborhood watchman who was acquitted—at least not yet.

Nor 14-year-old Tremaine McMillan of Miami, FL,  “forced to the ground” and “choked in a headlock” “as he played with his puppy on the beach” “because the police said his body posture was ‘threatening’—and then charged with a felony.”

Nor 15-year-old Kiwane Carrington, whose shooting death by a police officer here in Champaign was ruled an accident and the officer was suspended for 30 days for poor firearm handling.

Nor the thousands with whom I could go on except that they haven’t been brought to national attention so I haven’t even heard about their stories.

I want to talk about 22-year-old Oscar Grant, fatally shot in the back while lying face down on a BART platform in Oakland on New Year’s Day 2009. The BART police officer served 11 months for involuntary manslaughter after claiming he meant to use his TASER.

This is, of course, because I saw Fruitvale Station last week. And you know, even though one goes into it knowing how it ends, it’s still incredibly moving. The film has some problems, but effective acting is not one of them.

As I was walking out of the screening, I commented to my movie buddy that some people were upset because a scene where Grant is nice to a dog was fictional, put in to make it clear he was a nice guy (which I read somewhere but can’t find now).

She replied that the film had gone overboard with making him seem like a nice guy. The result, she said, was that it conveyed that he shouldn’t have been killed because he was a nice guy, not because he didn’t do anything wrong—a critique echoed by the negative film critic reviews at The Dissolve and Variety.

And she has a point to the extent that even not-nice people shouldn’t be shot to death for no reason.

But you know, (and now I come back to that first young black man in the list of those subjected to violence by a law enforcement figure) I think about how many times I read in comments (and, I know, I know, “Don’t read the comments!”, but-) people calling Trayvon Martin a thug because he apparently smoked pot and got in fights at school sometimes (neither of which carry a death penalty, last time I checked).

I think about how the trial of George Zimmerman for killing Martin hinged on whether six women (either all or 5/6ths white) bought the narrative of “Zimmerman was threatened by a black thug” or that of “Martin was a child attacked by a vigilante,” and the first narrative won the jury over.

Putting those things alongside my friend’s feeling that the treatment of Grant was heavy-handed makes me think that she and I, white people who already understand both “Even not-nice people don’t deserve to die” and “Young black man does not equal thug,” are not who that aspect of the movie was for. (Which isn’t to paint us as “enlightened” so much as meeting a basic standard of understanding that, surprisingly, is not so basic.)

The movie was making a case to those people who look at someone like Grant or Martin and see not a human being but a threat, and people with that view may well need to be hit in the face with the argument to have a chance at believing it. Certainly, the odds of people who equate youthful black masculinity with thuggery going to see Fruitvale Station may be low, but that’s who the continual insistence on Grant’s niceness at every turn was having an argument with.

Bad film-making, perhaps. But culturally vital.

Overall, recent events make me think that, given the systematic devaluation of black men’s lives, the tiny intervention of “He shouldn’t have been killed because he was a nice guy” might be what there is, right now. That “Thugs are people, too” might just save somebody’s life, since “Not a thug” seems to be incomprehensible to far too many people with guns and authority.

A disclaimer feels necessary here. I know more about how race works than the vast majority of white people because of my education. I have had that vertigo feeling of realizing my life is worth less in the social ledger than other people’s because I read as queer. But I am aware how limited that knowledge is, that it’s not the same.

I understand that I fundamentally can’t imagine what it’s like to live under the threat exemplified by the cases of Trayvon Martin, Kiwane Carrington, and Oscar Grant. Of Rodney King, Tremaine McMillan, and Calvin Miller. I write, then, from a position of knowing enough to know what I don’t know.

But even if “Thugs are people, too” is all there is right now and what we have to work with in the short term, in the long run the systematic devaluation-fear of blackness (mostly masculinity, but the refusal of legitimacy to Marissa Alexander’s “stand your ground” warning shot that hurt no one demonstrates the ways black women quickly get moved into the “irredeemably violent” box, too) is where the fight is.

I haven’t posted anything about Trayvon Martin since the verdict. I’ve retweeted smart things that came through my feed, pointed out a very telling Google algorithm moment, but mostly it felt like a more important time than ever for white people to not be deciding what Trayvon Martin’s life and death meant. Who was I to think that my opinion mattered in that moment?

The Crunk Feminist Collective posted on Facebook: “Calling all white feminists allies: Where are y’all? <looking far and wide> Your silence around the Zimmerman Trial speaks volumes. [ . . . ] Where is *your* intersectional analysis about white privilege, that not only calls out the operations of racism, but the particularly gendered operations of racism in the hands of these white women jurors?” (Via Amanda Ann Klein’s blog post taking up the challenge.)

The poster is right that this is work white feminist humans need to do, even as I’m still uneasy even in this blog post with asserting that what I think about this matters.

But I think my role as an educator is exactly a place to make an intervention in the systematic devaluation-fear of blackness. Maybe, if I’m lucky, even one slightly larger than tiny.

In my Intro to Gender Studies class this year, I want to find a way to work in a discussion about the role of masculinity in Trayvon Martin’s death, and how it intersected with race and class in the killing and the trial (and, at times, homophobia in suggesting Zimmerman’s following seemed like impending gay rape). I want to help my students understand the role of whiteness and femininity with those jurors from selection to verdict. All of it.

It’s pedagogically sound, but more importantly ethically incumbent on me as someone who understands these things and has an opportunity to help others understand them. There’s also the role of my (racial, educational, employment) privilege in making me someone to whom the flock of (mostly) middle class white kids on the other side of the classroom is likely to listen to.

If you’re a teacher interested in pitching in to help change the cultural narratives that, ultimately, killed Trayvon Martin (which is not to absolve Zimmerman, clearly), keep an eye on, curated by my colleague Safiya U. Noble, Ph.D. and going live mid-August.