You know, it's interesting how this description pinged for me as associated with another kind of judges-judging art situation, which is to say the Roth test for obscenity: in that case, too, such vague and hegemonic terms as "the average person" and "contemporary community standards" similarly buttress the art form against the possibility of its control by artists or art critics (or, say, porn-makers and porn aficionados). The implication in obscenity cases against porn, etc., is that those who peddle porn are not the average person, and neither do they form part of the spectrum of the community by which they should be judged. In this case of transformative art, the implication seems similar, that a reasonable member of society stands outside of the community of those who would make questionably transformative art in the first place.

This makes me idly wonder whether there is a greater connection between these two subjects in law, between obscenity and copyright, sexual desire and ownership. Obviously there's metaphorical and societal connection between these subjects in general, but I wonder whether they function together somehow within the workings of the law. When I make free, wanton, improper use of copyrighted material to make a vid - use it in a way not intended by its creators - am I not metaphorically and legally aligned with those who take sexual pleasure in a manner not intended by The Creator, by which I mean, queer and nonreproductive sexual activity? After all, the overwhelming majority of obscenity cases these days (and throughout history) are brought against works depicting non-normative sexualites; LGBT bookstores get harassed for shipping books on that subject, and other targets include kink publications/porn. And this makes me think of Barbara Johnson's "Anthropomorphism in Lyric and the Law," though I haven't quite got the connections right in my head.