Authors, readers, and friends of the court

[crypto]

Rebecca Tushnet blogs:

Along with Tony Falzone and others out at Stanford, I wrote an amicus brief in the pending Salinger/60 Years Later case, on behalf of the American Library Association, the Organization for Transformative Works, the Association of Research Libraries, the Association of College and Research Libraries, and the Right to Write Fund. Tony discusses the issues here; he is focused on the standard for preliminary injunctive relief, which is quite important, but I am even more concerned with the cramped definition of transformativeness adopted by the district court. I hope both will be addressed on appeal.

The section of the brief covering transformativeness draws on Blanch v. Koons (see William Patry's blog post, full text of 2nd Circuit decision). One of the interesting things to me about that decision is how the finding in favor of transformative use relies heavily on artist Jeff Koons' own account of his purpose, as stated in an affidavit, in making an artwork that included part of an image appropriated from a fashion spread by photographer Andrea Blanch. This seems to put an enormous amount of weight on the artist's own self-proclaimed, after-the-fact intentions. In an earlier post on the district court decision, Patry acerbically commented:

One need not pay the slightest attention to Koons' representations about what he set out to do to see that "Niagara" uses the work in a transformative manner. Indeed, not paying any attention to what Koons says has two signal values: (1) from a legal standpoint, one cannot as easily get enmeshed in debates about judges judging art: you merely look at his work to see if it is, objectively, transformative. I think Blanch was a transformative use and Puppies not. Second, by ignoring Koons's remarks, one also avoids paying him the slightest attention, thereby avoiding feeding into the very source of his "art": attention.

Everyone seems to agree that judges shouldn't play the role of art or literary critics. In the words of the brief for the Salinger case, "Courts have recognized that fair use must not depend on a single judge’s perception of an artist’s merit but rather on the possibility that a reasonable member of society could perceive the transformative use."

But who are these reasonable members of society? The phrase seems to imply laypersons rather than experts and critics -- the kind of people that Patry suggests could "merely look at [the artist's] work to see if it is, objectively, transformative." I almost get the sense that reasonableness is construed as the opposite of expertise. If it's only those highfalutin' experts with their five-dollar words that can discern a work's transformativeness (and you know those art and literary critic types -- they'll happily argue that up is down and right is wrong if you give them a podium), what's a poor judge, trained only to the law, to do? So a reasonable perception of transformative use is one that your typical judge could at least conceive of, or -- if proposed by, say, the defense in a copyright case -- deem plausible, without special recourse to critical theory or specialized discourse.

So where would this leave subcultural transformative works that rely on community-specific knowledge for legibility? How many "reasonable members of society" outside of specific fan cultures could perceive the transformative nature of vids? If certain kinds of subcultural works require their own forms of subcultural expertise to generate meaning and response amongst their subcultural audiences, how will courts navigate fair use claims? Should courts be predisposed to give greater deference to fair use claims for subcultural appropriations and transformations of mainstream sources? Have they in the past?

Comments

[thingswithwings]

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.

[crypto]

I had the Roth test in the back of my mind too; I think there's a definite overlap in terms of cultural power/marginalization and legitimation, property and propriety.

In the comments to the LJ version of this post, rivkat noted that "the Dungeon Dolls Barbie defendant got away without [an expert] because of the transgressive sexual content of her work." Which sounds like "those who take sexual pleasure in a manner not intended by The Creator, by which I mean, queer and nonreproductive sexual activity" are paradoxically favored under copyright law viz. fair use, even as they're traditionally been vulnerabilized under obscenity law.

Though that wasn't necessarily always the case (e.g. Walt Disney v. The Air Pirates), so the relationship is probably more complex and contingent.

ETA: Thanks for mentioning the Barbara Johnson essay -- I'll check it out.

[thirdblindmouse]

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.

Well, copyright and obscenity are two areas where the law gets to decide whether expression should be censored. If anything, I would think law regarding copyright had more in common with libel/slander than obscenity, censorship regarding obscenity surely has more to do with supposed damage to the community than with specific individuals claiming their reputation (or income) has been damaged by propagation of a work that wouldn't cause offense to anyone else.

[cathexys]

I almost get the sense that reasonableness is construed as the opposite of expertise.

Not to be contentious, but: Isn't that how jury of your peers tends to work IN GENERAL in this country? It fascinates me as an outsider how intelligence, opinions, and reading the newspaper seems to get you OFF rther than ON juries!

[sara]

Oh, I dunno...Mother's taken either two or three daily papers for the last forty years, and she keeps getting stuck with jury duty. But then, one of those papers is the Wall Street Journal.


I mostly think of Koons as the guy who artified the inflatable plastic rabbits that scared the everliving crap out of my brother when we were kids (my parents set them up in the doorway to the living room on Easter morning; my brother, then about four, took one look and retreated, screaming. This was not the desired effect. Inflatable rabbits have made me laugh uncontrollably ever since, which is almost certainly not the emotional reaction Jeff Koons wants to evoke. Signs =/= signifiers!)

[crypto]

That's a reasonable observation -- I was waiting for the contentious part!

I'd imagine that variations on the reasonable person pop up in all kinds of places in U.S. law beyond copyright and (as thingswithwings notes above) obscenity law. Yet the court system more broadly also has a well-established role for expert witnesses and testimony, regarded as crucial to persuading juries, so I'm not sure it's entirely clear cut.

Though U.S. culture definitely has a strong undercurrent of experts as elites and therefore antidemocratic....

[princessofgeeks]

going totally on the basis of what i know of the law here, the test for obscenity and the test for transformative use/fair use are based on totally different things. The Miller test (which is the one in effect now in the USA for obscenity; I think it superceded Roth) is a "community standards" test, but there are also several more criteria that have to be met, and artistic merit is one of them.

the Fair Use part of copyright law that the transformative works bit is embedded in is based on something else altogether, as far as I understand -- not community standards or the opinion or judgment of an average person. So this will be interesting.

I think any comparison between them would be more of a philosophical one and not a legal one.

[crypto]

That's a good point; I'd forgotten about the "artistic merit" part of obscenity law. Though I guess that depends on prevailing community standards as well -- certainly many people outside of fandom tend to assume that fan fiction has no artistic merit.

[cofax7]

certainly many people outside of fandom tend to assume that fan fiction has no artistic merit

And within fandom, as well.

[princessofgeeks]

lolol

[princessofgeeks]

this is a totally fascinating topic and i wish i had the law background to fully understand it. there was a new yorker article a while back about an issue like this too -- a playwright had used an actual case as the basis of a play, and there were perceived plagiarism and invastion of privacy issues there. i can't remember what the source material was, though -- a nonfiction book or something else.

because nonfiction versus fiction as the basis for the new work of art has an impact too -- you can't copyright historical facts. which is why the lawsuit over the DaVinci Code books was eventually thrown out, if memory serves.

When you talk about transformative use in regard to copyright, it's such an arcane area of the law. I look forward to learning more as I go. Thanks for pondering this and I know I'll enjoy the comments.

[crypto]

I have no law background at all; I enjoy reading law articles and court decisions, and trying to follow the reasoning, but it's more from a philosophical/political or cultural criticism perspective (if that makes sense) than a technical one. And it does feel arcane -- every decision references multiple previous decisions, so it's a whole web to untangle.

If you haven't checked them out, Rebecca Tushnet has written a bunch of great articles relevant to copyright & fanworks that are very readable and persuasive.

[princessofgeeks]

i know a little about First Amendment law because of my former job in journalism, and yeah: You have to trace whatever is done, step by step, back through the precedents. like a trail of breadcrumbs. it's fascinating, for example, to look at how the FCC and the courts started with the First Amendment and radio and then got to where they had to regulate cable tv and satellite tv and so forth. sometimes what you would assume would be the case when you start from the present is NOT the case when you trace back the precedents. It's really fascinating.

and thank you for the reminder about Tushnet -- I do follow her blog but I don't read it as often as I should.

thanks again for the thinky.