AALS Art Law Panel, part two

2006 AALS Meeting, Jan. 6, Section on Art Law
Art Law and Intellectual Property Law: Convergence and Conflict

Sonia Katyal spoke on artistic disobedience and market failure. She argued, as part of a larger project with her colleague Eduardo Peñalver, that disobedience could have a productive effect, highlighting the need for change in overly restrictive IP law. Conscious challenge to law can thereby produce dynamic legal changes in entitlements through legislative and judicial actions. Disobedience, in other words, can be a signal that a market failure has occurred.

In Campbell v. Acuff-Rose, the Supreme Court intervened to cure a market failure relating to transformative use (and it’s useful to remember that the case settled on remand). The copyright owner’s non-economic reasons for refusing to license parody were the relevant market failure; in this, Katyal’s analysis goes back to Wendy Gordon’s foundational work on fair use and market failure. I have to admit, I don’t quite get why non-economic reasons are evidence of market failure: Perhaps my personal valuation of my IP is just infinite; if I refused to sell you my house, even though you offered me three times the market value, because I really like my house, that wouldn’t be a market failure. In a world where parodies (and satires!) are increasingly licensed within large corporate groups, however, perhaps there is a story to tell about transaction costs in negotiating with independent/unknown/unfamiliar artists, though then the “parody” part seems less important than the general problem of negotiating over hard-to-predict value.

Katyal discussed several other similar cases of parodic/transformative use – The Wind Done Gone, the Food Chain Barbie case, Dungeon Dolls – and here I started to wonder why all these transformative fair use cases involve the sexualization and mockery of women’s (or dolls’) bodies. (The Naked Gun case, the Starballz case, and the Barbie Girl case are the same.) In fair use cases, sexualizing a text is treated as automatically constituting relevant commentary on the original. By contrast, adding in violence may well not be transformative, as with The Cat NOT in the Hat! -- I’m willing to bet that making the Cat in the Hat a child molester instead of just a spouse-killer would have counted as fair use -- though the “Chicken Step on Barney” case shows that adding violence can be the foundation of a successful fair use.

But I digress – Katyal then turned to the historical precedent of situationist art, which posed theatrical challenges to consumerism, attempting to pierce the veil of the society of spectacle. (I really like the idea of a book with a sandpaper cover, such that it would destroy the other books on the shelf with it – sort of like really buggy DRM.) A more modern example would be the Grey Album day of disobedience during which people were encouraged to download the mashup of the Beatles’ White Album and Jay-Z’s Black Album.

Resistant art of this type, if it incorporates copyrighted works, does so without permission, but is also not likely to be considered transformative because of its lack of direct critical commentary on the original; at most, it will recontextualize the original, like putting a urinal in an art gallery. Katyal pointed out that copyright law’s two kinds of “protection” – protection for the copyright owner against unauthorized copying, and protection from liability for the fair user – are two peaks on either side of a spectrum of uses, but there are also activities in the middle of the spectrum. Deliberately disobedient uses in this middle range may signal the need to reform copyright law, perhaps by compulsory licensing. Katyal’s paper Semiotic Disobedience discusses these issues in greater detail, though it doesn’t seem to be available at SSRN.

Finally, Katyal discussed the role of private underenforcement of copyright law. No one was sued over the Grey Album, despite some threatening noises (and despite the well-known willingness to litigate of the music industry). The formal system prohibits many types of appropriation, but informally copyright owners tolerate a lot, especially when public relations nightmares are at stake. The music industry has been willing to bear PR hits, but with the Grey Album apparently the copyright owners concluded that it wasn’t worthwhile to go after people who were only copying the mashups. I personally found the Grey Album only interesting as an experiment, not as music I’d like to listen to again; I expect most of the downloaders didn’t use it as a substitute for purchases of Jay-Z or Beatles albums.