Southern California IP Professors’ workshop 4

Barton Beebe, NYU, Aesthetic Progress and Intellectual Property Law

What is the aesthetic? Something other than the utilitarian/useful. Distinction between aesthetic and ethical, aesthetic and moral/political. Aesthetics is the study of this distinction and the study of the study of this distinction. Fred Yen has a great article, as does Christine Haight Farley. Copyright is more comfortable with the utilitarian than the aesthetic. First draft: copyright eventually adopted an incredibly purist definition of art, largely because of Bleistein. Substantial similarity: test for similar aesthetic appeal, a meaningless question.

Common root: we have no idea what it would mean for there to be aesthetic progress, but progress is part of the constitutional concept of copyright. Framers weren’t sure there was such a thing as aesthetic progress, but there was an active debate over whether we’d made progress over the ancients at that time. Hume, for example, was willing to say that the 18th century was superior to the ancients because the heroes had better morals.

Do we need a theory of aesthetic progress? Tech progress is built into our IP theory, why complicate things? Courts seem to take idea of aesthetic progress for granted. They talk happily about artistic progress. The aesthetic is always cabined, secondary.

Progress of science and useful arts is a strange phrase to have used at the time of the Founding. Everyone talked about arts and sciences, or maybe science and the arts. But science and useful arts is absolutely unique in the 18th century—some deliberate effort to carve out the fine arts, with no explanation from the Constitutional Convention. Painting wasn’t protected in England into 1862; Americans incorporated fine arts in 1870, so maybe they were following the English example. But English were protecting music, considered fine art, earlier. English law of the time offered protection for sculpture to “encourage” sculpture, synonymous with progress.

Though the Framers might have been comfortable with ideas that fine arts promoted civic virtue, they still had a real problem with popular sentimental novels, women’s literature—very strong anti-novel movement in late 18th and mid-19th century; except that the 1790 Copyright Act protected “books,” without exceptions for novels. Further weird because that makes us ask whether the Act was unconstitutional because it protected neither science nor useful arts—but we’ve given up on that, and may mean that “progress” is a meaningless term, a mere preamble.

Beebe says 19th century cases were flawed but were trying to talk about copyright as cultural policy: what our society should have as its goals. But then came Bleistein. Holmes is the perfect nemesis not just for the idea of progress but for the idea of aesthetic progress. Holmes was a dark person; hard to believe he’s idolized as a great Justice given the things he was capable of in some opinions. Massive turning point in American copyright. Beebe argues that Bleistein ignored the governing Act and therefore the judgment of the people who enacted that law. At that time, the law protected works of “fine art,” tough as it is for us to accept that today; Holmes placed aesthetic judgment beyond the reach of the crowd, crushing cultural policy in the copyright context. It’s wrong of Holmes to do that; it’s not wrong for a democracy to have an aesthetic theory and there’s nothing stopping us from basing copyright/property rights on aesthetic theory. Yet congressional debates quote Bleistein as if it imposed a limit on the kind of copyright law Congress could enact.

We should adopt a typical liberal mode of resolving questions of value: avoid merit, substance etc. and ask questions about process. This would expand transformativeness. We should avoid discussion of aesthetic excellence; a pluralist liberal society wants to retreat from elite judgments of that kind. Excellence in its emphasis on comparative quality distracts from the cooperative quality of aesthetic experience. Cumulative progress over time is our standard technologically; we’ve carried that into the aesthetic realm so that Michelangelo is bested by Rembrandt. But the aesthetic is a completely different world. Pragmatically: there’s no real distinction between fine and useful arts; aesthetic includes most experience, and participation is important in all aspects of life.

Commentator: David Plunkett, UCLA

Analytic philosopher’s question/answer. What’s the history of our use of the concept of aesthetic progress? Broader historical question: what’s the basis for the copyright in works of fine art? If the answer to the historical question is much more interesting and nuanced than we think, a normative question then naturally arises. How should the notion of progress related to the fine arts play a role in copyright law?

Maybe scientific progress is crucial to justify copyright, but not artistic progress. We can start by carving human activity into different domains: engaging in scientific theorizing, producing technology/useful arts, engaging in ethical/moral theorizing, living a life, producing art. For each type of activity, there will be a number of different products. Science: notes, emails, grant applications, trash from dinner in the lab. Core product is the theories themselves. Might think of any given theory as a list of proposition describing the world and how it works. That’s the aim of scientific theory as such. So, with that in mind, what’s the core product of each sphere? Might be abstract or concrete: a painting, a sculpture, a rock. For artistic activity, the relevant products are the pieces of art.

Are there normative/evaluative standards that determine which things are successful/better products? Yes for both science and art. Our theory of how planets move is better now than it was for the ancient Greeks, and the White Album is better than my childhood guitar stylings. So we’re committed to the idea that there’s some way to learn about or gain access to these standards. How are these norms related to the idea of progress?

Part of what it is for a scientific theory to be good is for it to be in some way better than what came before—better how is contentious, but we look for explanatory/predictive power etc. If a theory doesn’t do better in understanding location of planets than our current theory, then it’s not progress. But no similar notion is constitutive of our judgments about good art; could be shoehorned in, but not clear why you’d do that. A sculpture from now and 1910: we can think both are good examples of sculpture without thinking the new one is better.

There may be relevant notions of artistic progress: better representation of reality can be improved, but that’s not a constitutive aim of art as an activity the way that understanding the world is a constitutive aim of science. (How do we distinguish art from living?)

Mostly we want more of products, because that gets us more successful instances. Having more scientific theories around helps us get the ones that are better. Partly true of artistic products—we want ones that exhibit excellence. Natural to think that progress would be important for scientific theories but not for aesthetics/fine arts; could just ask about good instances. Looks like we apply aesthetics to cultures and individual lives—Nietzsche and Foucault were interested in the aesthetics of everyday living. Norms internal to the science, epistemic norms; cultures and human lives are sensitive to a large range of norms, including aesthetic and moral. Evaluating life purely in aesthetic terms is wrong. Maybe our concepts of aesthetics applied to lives are different than aesthetics applied to fine arts.

A differnent question: Who if anyone is expert in figuring out the standards that should apply?

A consequence oriented approach can fit smoothly into explaining why scientific progress is crucial, but not for artistic progress. And we can say that without embracing any aesthetic neutrality.

Beebe: To participate in the world of the aesthetic now is to participate in property. This is a difference from scientific/useful arts progress. Participation in culture doesn’t mean better expression; aesthetic progress means progress of a culture in allowing people to participate. Shift away from objects to processes. Away from fixed achievements to more immediate aesthetic experience. Copyright should be more attentive to that form of progress.

He’s trying to get at the Deweyan art of living: not better works of art, but facilitating the art of living.

Q: if you aren’t interested in aesthetic works, then progress of what?

Beebe: would define aesthetic progress not as a better movie, but as allowing a person who sees that movie to post a clip and comment on it or make a parody: can participate in the creation of the aesthetic and not merely have it imposed on them. If we accept that “better” works are hopeless, let’s think of some other way to apply progress. Ability of users/experiencers of aesthetic works to participate in the creation of new aesthetic works—kind of like literacy (Nimmer’s contribution).

Q: wouldn’t that argue for no copyright at all?

Beebe: would agree with some incentive argument, just add more transformativeness.

Q: How compatible is this theory of progress with other cultures?

Beebe: limited answer: he’s talking about a pluralist legal society in the Western tradition, interested in perfecting Enlightenment society. If a different civilization wants to conceive of progress religiously, more power to them. Not exportable without sharing norms.

Netanel: Your idea is faithful to the original progress clause: improvement of civilization, education, literacy were concerns of the Framers. Left it to Congress to figure out which works would serve that progress. Elite used to think that works that didn’t live up to the notion of fine art didn’t serve those overall purposes; we can decide as a public which configurations of rights do. Maybe defamatory/fraudulent/obscene expression should be reconsidered: do they serve progress?

Beebe: still worried about censorship from throwing out works that supposedly limit progress. He doesn’t think that he can say “deny copyright to bad works to disincentivize them” because he doesn’t think that copyright gets you good works.

Rothman: tensions in the paper. Begin with the origins of the Clause, which suggest there was no notion of aesthetic progress. Can you really argue that aesthetic progress is then in the Clause? Whether we call it a preamble or not, we can read it narrowly or broadly (scrutinizing an individual work for whether it fits is probably a bad idea). If we read it broadly, we could say the copyright regime promotes progress, which tends toward a focus on owners and not users, which then makes her uncomfortable about his conclusions. Relatedly, role of content in aesthetic progress: does content matter if participation is key? Transformativeness is very much about content. Deontological/consequentialist—the participatory piece is deontological, but then what if we have fewer works to go around?

Beebe: paper tries address this issue: there was a theory of aesthetic progress among the Framers, even if they didn’t talk about it. Deliberately left the fine arts out of the progress clause in anticipation of some of these problems. They could have worried about questions of what counted as progress. But we have since read fine arts in, which is ok, just as we have the right, notwithstanding Bleistein, to decide what progress is. Agrees we should think of the overall system in promoting progress—standards of originality, not the particular work.

Rosenblatt: Seems like in some places you’re saying quality judgments are ok and others not, depending on the purpose for which you’re making judgments. At some point you need to define progress even if not aesthetics. Progress could mean newness, quantity, quality, or participation. But if you go to participation, you end up invalidating all copyright and having to start over. Is it possible you mean newness or accumulation? Degree to which you care about content is relevant to this question.

Beebe: Because of Bleistein, I feel compelled to say that it’s ok to say we won’t give copyright to certain works because, as a society, we’ve concluded through democratic deliberation they don’t promote progress. There’s no reason we as a society can’t make aesthetic judgments. He thinks it would be nonetheless bad for us to engage in content analysis, so the better alternative is process. Best way to think about the aesthetic is in human terms: the aesthetic experience. Thus copyright should facilitate better aesthetic experience, including using works. Move from things to people. (But: No ideas but in things, a quote I was introduced to by Mark Tushnet's writings on art.)

This gets to my question about Beebe’s First Amendment point. Surely (she says) some conceivable aesthetic theories would have First Amendment problems; he just thinks the current liberal pluralist focus on process would work, which almost seems like he’s defining the problem away.

Barnett: think about piracy. US was a pirate nation as to other countries’ works (because it was poor). Reversed when population got wealthier and American domestic authors protested the unfairness because it forced them to sell at lower rates. Bleistein lowers the cost of copyrighting, diminishes defenses—might correlate with economic development of the US.

Beebe: with him on the piracy story. But he’s not sure he can connect this to progress/Bleistein. Formalities were still in effect. Diane Zimmerman would say that Holmes could rely on formalities to protect the public domain; Holmes didn’t have to worry much about the low standard of originality because so much wouldn’t make it into protection anyway.

Ramsey: from a free speech perspective. Maybe we don’t want the government evaluating what counts as progress in the fine arts. Could mean quantity rather than quality. If you’re okay with transformative uses, you can fit that into a free speech account: transformativeness fits into added quantity.

Me: as to quantity: courts routinely say “you’re just giving the same message,” not adding to the real quantity of ideas available, e.g. Salinger v. Colting and the Seinfeld Aptitude Test—quantity is perhaps too flexible to bear the appropriate weight. Also note that we’ve largely ignored, though it’s implied by Beebe’s references to access, the most obvious way in which quantity is increased: by multiplying copies. If you want quantity, bittorrent is your best friend ever. Trying to reduce participation to quantity will inevitably run into this dilemma—will always be possible to say “this review says nothing new.”

Beebe: sympathetic to the incentive argument for restricting unlimited reproduction. Need an incentive/access balance in the aesthetic world, which will be different from the appropriate balance in the tech/scientific world.