Editorial “Take 2” / Éditorial « Deuxième prise »

The volume you are about to read offers a unique and important argument about the significance of the image to feminist legal theory. Using film, this combination of articles demands its readers to think carefully and creatively about the lenses we bring to our understandings of normativity and the privileging we give the written in the world of law. What may strike you as ironic is that this published volume—one that is focused on the intersection of law, film, and feminism—contains not a single image. Film swims in the medium of visual representation, but this volume makes its arguments solely with words.

Why is that?

In putting together this volume, we ran headlong into some possible answers: they include caution and fear. For indeed, one of the contributors to the volume did give us images. Lots of images. Ummni Khan’s article (see pages 143–76) grapples squarely with questions about the visual representation of the professional dominatrix. Her article considers five different films, and includes still images from the films, images integral to her argument. When we first saw the images, we did have a discussion as editors about them, but, interestingly, this conversation was mostly about the graphic nature of the images and not about whether or not copyright law would allow us to include them in our volume. Our own perspective on the question of what the images conveyed was that, disturbing to some or not, the images were necessary to her argument, so finding a means through which to include them was essential. In a journal on law, film, and feminism, the article was asking us to consider very concretely how the visual dimensions of the film participated in particularly hegemonic moves about women’s power and its links to sexuality.

So where have the images gone?

Here is how the debate began to be framed. Can an author, in an article, reproduce a still (or film capture) from a movie? Or, to put a sharper point on it, if an author reproduces an image from a movie, does the author need to get permission from the owner of the film’s copyright? What makes a still from a movie different in principle from a quotation from an article or a line from a poem? In putting together this special issue, we ran up against exactly this question. After some conversation and consideration, we (the special editors of this volume) came to share the view that permission was not required. Indeed, we took the same position argued by the Film Studies Association of Canada in their position paper accessible online at < http://www.filmstudies.ca/FSAC_copyright.htm >. They, like us, took the position that the fair dealing provisions of our current copyright law should include an exception for the kinds of images that concern us here. Indeed, continuing to promote dynamic and innovative scholarly research in this arena necessitates it.

The Copyright Act prohibits the reproduction of copyrighted work without the permission of the creator. And it does so within a regime aimed at balancing the interests of creators of copyrighted work with users seeking to critically engage with this material. Some of this balancing is evident in the “fair dealing” provisions where the blanket prohibition is fettered with exemptions. The exemptions that are apposite here are sections 29 and 29.1 (for research and for criticism and review)

• 29. Fair dealing for the purpose of research or private study does not infringe copyright.

• 29.1Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

  1. a. the source; and

  2. b. if given in the source, the name of the

     1. i. author, in the case of a work,

     2. ii. performer, in the case of a performer’s performance,

     3. iii. maker, in the case of a sound recording, or

     4. iv. broadcaster, in the case of a communication signal.

It very much seems to us that reproducing a still image from a film in order to engage with what the film endeavours to do, as evident in Khan’s work, falls...