Copyright Law Stifling Free Speech And Artistic Criticism

from the yet-again dept

Pacific Standard Magazine has a really great article by Noah Berlatsky, looking at how copyright is stifling artistic criticism. Much of it focuses on a recent paper by John Tehranian, whom we’ve written about before. The paper is called Dangerous Undertakings: Sacred Texts and Copyright’s Myth of Aesthetic Neutrality — and focuses on how aesthetic judgments about the value of works almost always applies in copyright cases, which is a bit dangerous when it comes to art, criticism and free speech. Berlatsky’s piece focuses on the famous case of The Wind Done Gone, the famous “unauthorized retelling” of Gone With The Wind from the perspective of another character. The lower court said it was infringing, and the appeals court overturned it — but both were based, at least in part, on aesthetics, rather than underlying legal issues:

In its decision, the court pointed in particular to the fact that Scarlett and Mammy died in The Wind Done Gone as evidence that the sequel harmed the original. In financial terms, this objection doesn?t make much sense?as Tehranian points out, Kirk and Spock died in the Star Trek series at various points, and no one had any trouble bringing them back to life when needed. But the court?s objection does make sense if Gone With the Wind is viewed as inviolable, if any tarnishing of it is seen as illegitimate. ?Thus, it is not whether the work is parody or sequel that truly appears to drive the court?s decision;? Tehranian concludes, ?it is destruction of the work?s romanticism?a romanticism that is grounded in a distinctly whitewashed vision of the antebellum.?

The Eleventh Circuit Court of Appeals eventually reversed the lower court. But aesthetics were involved in that decision as well. The appeals court based its decision on the estimation that Gone With the Wind was not an inviolable classic, but was instead a flawed and indeed racist work. The court particularly singled out the fact that the Mitchell estate had prevented authorized sequels from discussing homosexuality or miscegenation. The Mitchell estate was trying to prevent re-evaluation or criticism of Gone With the Wind, and, implicitly, of its vision of the South. The appeals court ruled that such re-evaluation and criticism was in fact aesthetically valuable. ?To the Eleventh Circuit,? Tehranian concludes, ?the time had come to de-canonize Gone With the Wind and its inviolability.?

Berlatsky suggests that Tehranian argues this is okay because the fact that the Copyright clause of the Constitution talks about promoting the progress of “the useful arts,” but that’s a misreading of the Constitutional clause (and Tehranian’s paper). While many people confuse this, the “useful arts” part of the clause is actually referring to patent protection (“useful arts” at the time meant inventions effectively). Copyright is supposed to be for promoting the progress of “science” (which at the time really meant “learning”). The real issue is what “promotes the progress” — and that’s where the aesthetic nature comes into play.

Tehranian’s paper actually goes on to discuss another case, which we’ve discussed as well, which is the similar story of someone trying to write an unauthorized sequel to Catcher in the Rye. Except in that case, the judge banned the publication of the book entirely. And, again, aesthetic values came into play. As Tehranian notes:

The results of the two cases differed. In the former, an injunction against publication of the unauthorized work was lifted, and in the latter, the injunction ultimately stood. However, in both cases, aesthetic considerations ? namely juridical conceptions of history, hierarchy and value pertaining to the underlying works and their allegedly infringing alter egos ? dominated the fair-use analysis and ultimately enabled the law?s selective consecration of cultural meaning, its development of epistemological narratives and its beatification of sacred texts.

Later in the paper:

And aesthetic judgments on the relative value of unauthorized derivative works appear to have made a key difference in the court?s decision to issue the injunction. Consider the only mention that the Salinger court makes of the overarching goals of the copyright system. Seeking to reconcile its ruling with copyright?s role in promoting progress in the arts, the Salinger court reasoned that ?some artists may be further incentivized to create original works due to the availability of the right not to produce any sequels? (Salinger 2010b: 268, emphasis in original). As a first matter, the court?s speculation on this point strains all credulity. But regardless of how one feels about the bizarre conjecture that the right not to produce sequels can incentivize creation, it is clear that the court?s statement rests on a tacit aesthetic judgment: that it is better to preserve (ex post) the incentive to create The Catcher in the Rye than it is to stimulate the creation of unauthorized sequels. The calculus here is fairly remarkable: the court chooses to enjoin definitely the publication of unauthorized derivatives ? works that could contribute to progress in the arts ? on the chance, based on idle speculation, that some artists may create more because they can rest secure in the knowledge that no one can create sequels of their works. The hierarchy at play is simple: the original work implicitly trumps the sequel(s) and/or derivatives, especially those of the unauthorized variety. Certainly, for every Godfather II and Return of the Jedi, there are dozens of Blues Brothers 2000?s. But in deciding the fate of The Wind Done Gone, the Eleventh Circuit certainly did not seem bothered by this possibility, as it adopted a radically different aesthetic judgment of the unauthorized derivative. At a more subconscious level and in the context of our times, it perhaps feels less wrong to allow someone to skewer the dated artistic vision of Margaret Mitchell than to permit the adulteration of J.D. Salinger?s beloved Holden Caulfield.

As for the idea that this is an acceptable state of affairs, I find that to be troubling. We shouldn’t rely on judges to determine the overall aesthetic value of things, because that is, by definition, a regulation on speech that shouldn’t be permitted under the First Amendment. Judges determining the aesthetic value of a particular work is a dangerous path to tread.

Berlatsky argues that the culprit here is copyright terms, and that we’d have fewer of these problems if copyright were shorter. Undoubtedly that’s true — depending on the length, the works discussed above would likely be public domain by now. But, that still fails to take into account attempts to do more with recent works.

As we’ve covered recently fan fiction is an important form of speech, even when done commercially. Thus, an even better solution to all of this is to go back to basics: copyright should only protect the expression, not the idea. This is what we’re told, but it often seems to fail in these cases. Writing fan fiction, unauthorized retellings, unauthorized sequels and the like are all very different forms of expression. While they may quote and/or reference the original, they are, by definition, not copies. If copyright were properly applied, these would be allowed as not copying the expression (and, at worst, as transformative, derivative works protected by fair use).

Unfortunately, however, judges feel the need to “protect” original works based on aesthetic values, and that’s a huge problem for culture, free speech and criticism.

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Comments on “Copyright Law Stifling Free Speech And Artistic Criticism”

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antidirt (profile) says:

As for the idea that this is an acceptable state of affairs, I find that to be troubling. We shouldn’t rely on judges to determine the overall aesthetic value of things, because that is, by definition, a regulation on speech that shouldn’t be permitted under the First Amendment. Judges determining the aesthetic value of a particular work is a dangerous path to tread.


Why did you leave out the third case Tehranian discussed, namely, Cariou v. Prince? He argues that aesthetics lead the Second Circuit to find fair use. Did you leave it out because it doesn’t support your claim that “this is a dangerous path to tread”? Was the omission intentional?

Anonymous Coward says:

Re: Re:

I would imagine it was omitted here because it’s not as directly related, being about visual arts rather than literature. But at the time, despite being generally happy about the ruling, Techdirt said:

“But there’s still a somewhat problematic side to this ruling, and that’s the aforementioned distinction of five works from the rest. It brings us back to a problem we talked about a lot last year when this case was in the courts: judges playing art critic. The fact that fair use is so vague means that, every time it’s tested, it starts to turn into an argument about whether a piece of art is “good” or “worthwhile” — a subjective standard if there ever was one.”

Mike Masnick (profile) says:

Re: Re:

Why did you leave out the third case Tehranian discussed, namely, Cariou v. Prince?

Because the post was long, because it didn’t add anything more to the post and, frankly, because I when I was writing it, I had somewhere else to be and wanted to get the post done. Of course, you might ask the original author of the other piece why he only included one example from Tehranian’s paper. But it’s more fun to make up conspiracies about me, I guess.

He argues that aesthetics lead the Second Circuit to find fair use. Did you leave it out because it doesn’t support your claim that “this is a dangerous path to tread”? Was the omission intentional?

No. Not everything is a conspiracy.

Whether or not they find fair use because of aesthetic reasons, I don’t think judges should be determining things on aesthetics.

antidirt (profile) says:

Re: Re: Re:

Thanks for the reply. I appreciate it. That makes sense. By the way, are you going to comment on the evidence that you mischaracterized Aistar’s position? She didn’t say what you claimed she said. It seems that, given how important journalistic integrity is to you, you should say something.

antidirt (profile) says:

Re: Re: Re:2 Re:

Ha ha. As soon as the evidence comes out, he’s gone. Sounds about right. I honestly think that the post above is nonsense, and I don’t think his explanation makes much sense. The fact is I just don’t have the wherewithal today to get into an argument. I’m still worn out from yesterday’s escapades. It’s just unbelievable to me that he claimed that Aistars was saying all of these crazy things, such as there’s no innovators who want copyright perform. I merely suggested that perhaps Mike was wrong, and his throng went insane censoring and calling me all sorts of names. And then the evidence comes out this morning proving that Mike was wrong, and all the trolls scattered. And, of course, Mike is nowhere to be found. Of course, he can’t even admit that he got it wrong. And then he has all these post where he complains about other people’s lack of integrity. It’s just unbelievable. Where is Mike’s integrity? I seriously wonder if he has any.

Anonymous Coward says:

Re: Re: Re:3 Re:

from her quote
‘And an element that goes a little bit further than what we’ve heard before and almost seeks the entire elimination of intellectual property protection, and that element I think is coming in its most aggressive form not from any sort of innovative sector in any business, but is coming more from the, I’ll call them “criminal elements,” cyberlockers, entities like that who support and benefit from cyberlockers, and they are not interested intellectual property in any way, and I think those of us who rely on intellectual property in our business lives are just collateral damage.’

I can see why you have to cheat on your exams. It must be hard with your learning difficulties.

Anonymous Coward says:


How does all of this work with self-publishing?

I mean, you write a book, illustrate it, and take the PDF file down to maxi-copi on your flash drive, collect the books, store them in the spare room, set up a web-site, market your book, collect the orders and money, box them up, and mail them at the PO.

So somebody complains. Then what?

Is somebody going to raid kinkos with a search warrant for the file for the Grape American Novel? I mean, what in the world?

Anonymous Coward says:

Re: Re:

While I agree Techdirt should probably have a show all flagged comments option (something better than noscript) there is nothing wrong with private speech prioritization just like there is nothing wrong with search engines filtering search hits to prioritize them. Many pro free speech blogs have comment filters. While I may not always agree with what the community chooses to flag I see nothing wrong with a community based filter and would argue Techdirt is pro allowing for private filters. I would be against Techdirt censoring dissenting speech altogether, something pro IP proponents tend to do. In fact your comment is off topic and probably should be flagged. There is nothing contradictory about being pro free speech and being supportive of a community that chooses to prioritize certain comments over others. If you don’t like how this community priorities speech I completely support your right to start your own forum and build your own community.

John Fenderson (profile) says:

Re: Re: Re:

Although I sometimes disagree with how it’s used, I’m really glad that the flag button is here. Before it existed, the trolls had a much easier time totally derailing the conversation. They can still do it (look at the comments on this very article for an example), but when it happens the fact that trollish comments are collapsed makes it much easier to find and read comments that have actual value.

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