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Aesthetics and Copyright
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Darren Hudson Hick

In 2007, the Fraser Gallery in Bethesda, Maryland, displayed a series of photographs taken by local artist Doug Sanford. The photographs depicted e-mailed letters sent to him throughout the previous year by an ex-girlfriend, stating variously, “I don’t love you anymore,” “I hope you suffer horribly,” and the like. Sanford had not received permission from the letter writer, and she entreated both Sanford and the gallery to remove the works from display. Sanford argued that his work had transformed the e-mails into something new: “The words are the subject. I’ve never said the words are mine. … If I were selling her words and calling them mine, there would be a copyright issue.”[1] Sanford’s claim is a legal one, but it is also a philosophical one. Specifically, it is a claim about the nature of his work, and the nature of the e-mails, and the rights of each creator over them.

Although once merely the purview of novelists and mapmakers, today copyright affects nearly everyone. If, in the last thirty years, you have written, drawn, or constructed anything with even a modicum of creativity, chances are, that thing is protected by copyright law, meaning that – among other things – you have the exclusive right to make copies of the work (or parts thereof) and to license others to do the same. What exactly that “work” is, however, and what your protection over it amounts to, are complex, non-trivial issues. Problematically, copyright law has focused primarily on issues of the rights of copyright, and not on the nature of its objects, or else has tried to estimate the latter in its attempts to explicate the former, and it is from here that many of the problems of copyright arise. The Copyright Act of 1976 – still the guiding force in American copyright today – enumerates in great detail what one’s rights are as regards the work protected, but tells us very little about the work itself. As a result, much of the case law surrounding copyright is spent trying feverishly to determine what these rights apply to – that is, what the thing protected by copyright is. While the law assumes some metaphysical basis to its objects, it fails to provide any suitable ontological grounding for its administration. Partly, this seems the result of judges being left to their own devices to determine the nature of the objects of copyright, and partly it seems the result of concepts ingrained in the law that are themselves metaphysically confused. As a result, the conceptual framework of copyright has a tendency to lead to results that are alternatively arbitrary, counterintuitive, and, taken as a whole, often self-contradictory. Attempting to assess the nature of the objects of copyright subsequent to, or as a consequence of, assessing the rights of copyright is like trying to build the supporting frame and foundation of a house only after one has built the house itself. If it can be done at all, it will surely require major structural revisions, but will most likely result in an ongoing series of stopgap measures intended to keep the whole thing from collapsing. And this is precisely what has happened throughout the history of American copyright law.

The amount of ink spilled in service of copyright is staggering, both with regard to its history and to its interpretation, and I shall not attempt to summarize it here. What is surprising, however, is that while copyright is a popular topic in the media (hardly a week goes by without it arising in the New York Times and Washington Post), and is regularly debated in legal literature (no fewer than fifty American law journals specialize in intellectual property, and countless others include scattered articles on the matter), philosophers remain largely silent on the topic. This is most surprising because many of the problems that arise in copyright law fall neatly into the domain of philosophical aesthetics, and seem custom-designed for philosophers of art to tackle. There is room here to address only a handful of issues, so let us consider some of the basic conceptual distinctions in the law.

First, as a matter of nomenclature, and perhaps also of ontology, one does not own a copyright on an artwork per se, but rather on an “authored work.” The class of authored works as set out by the Copyright Act includes standard kinds of artworks such as literary, musical, dramatic, and sculptural works. But it also protects such items as computer programs, boat hull designs, architectural blueprints, and at least some lamp designs. However, such “useful articles” (as they are known in the verbiage of the law) are protected only insofar as their aesthetic aspects can be physically or conceptually separated from their utilitarian aspects. That is, it is only the “non-useful” aspects of the item that may be protected, and if the two cannot be separated, the item is not protected by copyright. On the letter of the law, a “non-useful” article is one whose function is “merely to portray the appearance of the article or to convey information.”[2] But, we can ask, is this the sole – or even primary – function of “non-useful” authored works (that is to say, artworks)? If not, does the distinction rest on untenable concepts?

Second, to merit federal copyright protection, an item must qualify as an “original work of authorship fixed in [a] tangible medium of expression.”[3] Although the Copyright Act does not define “originality,” for a work to so qualify, it need not be novel – that is, it need not (a) express unique ideas, nor (b) express ideas in a unique manner. Moreover, it need not possess any discernible aesthetic merit. Rather, it need only possess some modicum of creativity. However, just what is sufficient to pass this minimal bar remains an open question. As a basic distinction, however, it must owe its origin to its author – that is, it must be the product of creation, not of discovery. As such, if a series of musical notes is merely discovered by a composer, it fails copyright’s modest test of originality and will not merit protection. Conversely, if it owes its existence to the composer, it would seem to pass this necessary condition for copyrightability. Attempts to draw the line between the two sorts of cases, however, have been the source of endless frustration for copyright law. Depending upon which court decision is considered, a series of as few as six notes, or as much as six bars of music, may or may not constitute an “original” creation. Nothing in the law tells us where to draw the line. If all of these cases constitute products of protectable creation, a principled reason must be given. Conversely, if all are mere discovery, we must ask what would constitute creation. And if the line falls somewhere in the middle, it remains to be drawn in a non-arbitrary manner.

Third, as pointed out above, unless or until a work is “fixed in [a] tangible medium of expression,” it cannot merit federal copyright protection. A work is considered so fixed “when its embodiment […] is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”[4] Although introduced in U.S. law partly to circumvent problems with an earlier requirement for protection – publication – this new requirement seems at odds with the notion that what copyright protects is not a physical object, but an abstract one capable of multiple instantiation (whether in whole or in part). While this framework is generally unproblematic as regards certain classes of works such as novels and cast sculptures, at least two other sorts of work, as traditionally understood in the philosophy of art, threaten this doctrine. First are works such as paintings and carved sculptures, which many philosophers argue are essentially physical objects incapable of multiple instantiation. If such works in principle cannot be copied, what does it mean to offer them copyright protection? Second are certain sorts of musical works, particularly works of popular music. Some have argued that a recording of a work of popular music is itself a distinct work from the song so recorded (and not simply a performance of that work). If this is the case, should we accept that the song itself cannot be protected by copyright, because what is here “fixed in a tangible medium of expression” is not the song but (to use Ted Gracyk’s terminology) the “track”? We might further ask, what qualifies as “sufficiently” permanent or stable, and what are the bounds of “transitory” duration?

Fourth, copyright law further distinguishes between ideas, which are not protected by copyright, and the expression of those ideas, which at least potentially are.[5] On the letter of the law, an authored work is an expression. At least on first consideration, this idea/expression dichotomy seems a fairly intuitive one: simply considered, expressions are the form and ideas their contents. However, some items are not so easily classified, and seem to fall into an uncomfortable limbo. On one test devised in copyright law, the plot of a narrative work may qualify alternatively as either idea or as expression, depending upon how developed the plot in question is. This test has problems enough of its own, but in opening the door for questions, plots invite all manner of other ontological peculiarities. What, we can ask, of melodies, of found art, of conceptual art? We might ask, does the conceptual distinction between artworks and authored works, and that between ideas and their expressions, give new consideration to an ontology like Gregory Currie’s Action-Type Hypothesis, or, alternatively, such largely-discounted views as those of Benedetto Croce and R.G. Collingwood, distinguishing the artwork, properly considered, from the perceptible product?

Finally, establishing copyright infringement often depends upon establishing “substantial similarity” between works. One standard test for substantial similarity asks whether an “ordinary, reasonable observer would find a substantial similarity of expression”[6] of the ideas shared between the two works. Here we can ask how the law would (or should) deal with the “appropriation art” of such artists as Richard Prince and Sherrie Levine, who have established themselves by photographing the works of other photographers, or that of Doug Sanford, outlined above. In such cases, should it make a difference that, say, Prince is treating the work of Jim Krantz or Gary Gross as his “subject” as opposed to merely reproducing the work, even if the products are visually indistinguishable?

Such questions represent only the tip of the iceberg for copyright. Each issue, however, centrally turns on what it is that the copyright owner can reasonably claim a right to – that is, what the authored work is – and determining this seems the province of none other than aestheticians. I began my work on the problems of copyright the way that I imagine many philosophers begin their research programs: over beers with friends. On one particular night, a friend was attempting to defend his rampant downloading and copying of music and movies, arguing that one cannot possibly have a moral right over intangible objects. Although unable to convince him otherwise at the time, this conversation triggered what became and still is my central research program. Early in my research, however, two things stood out: first, that so many of the problems of copyright seemed so well-suited to the domain of philosophical aesthetics; and second, that so few aestheticians had considered these problems. Aesthetics is, by its very nature, an applied field of philosophy, and so it is perplexing that this domain of application has been for so long so thoroughly overlooked by those seemingly so best prepared to meet its challenges. Granted, you might have to learn a little bit of law along the way, but what other domain of application offers such opportunity for aestheticians to make such a substantial impact in the way the world treats artworks?

1. Quoted in Jessica Gould, “Mad About You: An Artist’s Photos of an Ex’s Angry Emails Prompt Even More Anger,” Washington City Paper 2 February 2007.

2. 17 U.S.C. §101.

3. 17 U.S.C. §102(a).

4. 17 U.S.C. §101.

5. See 17 U.S.C. §102(b).

6. Smith v. Jackson, 84 F.3d 1213, 1218 (9thCir. 1996).

2010 © Darren Hudson Hick

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