Fair Use and Aesthetics In Copyright Law

John Tehranian, Southwestern Law School, has published Dangerous Undertakings: Sacred Texts and Copyright’s Myth of Aesthetic Neutrality in The Sage Handbook of Intellectual Property (Matthew David and Debora Halbert, eds., Sage Publications, 2014). Here is the abstract.

At a rhetorical level, American courts have maintained a steadfast commitment to aesthetic neutrality in their copyright jurisprudence. In holding that pedestrian commercial copy would receive the same protection under the law as high-brow art, Justice Oliver Wendell Holmes once famously cautioned that “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” Yet for all this rhetorical solicitude, courts inevitably make aesthetic judgments when approaching copyright cases. In his groundbreaking work on the subject, Alfred Yen argues that the palaver of aesthetic neutrality has belied the common judicial practice of assessing aesthetic factors in deciding issues of originality, the useful arts doctrine, and substantial similarity. In subsequent work, Robert Gorman has extended this analysis to deconstructing the aesthetic considerations at play in copyright’s transformative use doctrine. Building on the work of Yen and Gorman, Dangerous Undertakings examines how subtle aesthetic considerations in the fair use calculus impact the extent to which courts permit unauthorized reinterpretations of canonical works and other cultural content. 

To develop this point, the essay compares juridical reasoning in three widely observed infringement cases: the controversy over Alice Randall’s lacerating rendition of Gone with the Wind, the ill-fated attempt of J.D. California to publish an unauthorized sequel to Catcher in the Rye and the unlicensed use of a collection of Rastafarian photographs in renowned appropriation artist Richard Prince’s Canal Zone series. Through the course of its analysis of Suntrust v. Houghton Mifflin, Salinger v. Colting and Cariou v. Prince, this Essay undermines the myth of aesthetic neutrality and considers how juridical conceptions of history, hierarchy and value help consecrate cultural meaning and develop epistemological narratives. As Dangerous Undertakings ultimately argues, to better understand the adjudication of copyright questions, we must not only recognize the elusive nature of aesthetic neutrality; rather, we must also appreciate the power of embedded cultural norms and assumptions in driving copyright law’s development.

 

Download the essay from SSRN at the link.