Robin Wharton (@rswharton on Twitter) holds a JD (1999) and a PhD (2009), both from the University of Georgia. She is a co-founder and director of the Calliope Initiative (www.calliopeinitiative.org), which develops open source tools to facilitate student-centered, project-based, multimodal composition pedagogy, and she is on the partner board of Hybrid Pedagogy (www.hybridpedagogy.com), an open, peer-reviewed journal of teaching and technology. Her research interests include medieval and early modern law and literature, critical legal studies, and the digital humanities. She is working on a book about the influence of common law poetics and the emergence of the individual as a target of regulatory authority in Middle English literature.
This is the source
Embedded in the rich textual record of international copyright law, we often
encounter a quaint, and perhaps naïve definition of the works, other than audiovisual works, expressed in
words, numbers, or other verbal or numerical symbols or indicia, regardless of the
nature of the material objects, such as books, periodicals, manuscripts,
phonorecords, film, tapes, disks, or cards, in which they are embodied
Embedded in copyright law, we often encounter a quaint, perhaps naïve definition of the “literary”
In his
Compositionist Manifesto,
composition.Composition involves assembly, construction, creation
critique,which, for Latour at least, involves a futile attempt to tear down facades in order to reveal the truth concealed beneath them:
The difference is not moot, because what performs a critique cannot also compose. It is really a mundane question of having the right tools for the right job. With a hammer (or a sledge hammer) in hand you can do a lot of things: break down walls, destroy idols, ridicule prejudices, but you cannot repair, take care, assemble, reassemble, stitch together.
Within the compositionist landscape Latour imagines, our attention would be drawn
away from the irrelevant difference
between what is constructed and what is not constructed, toward the crucial
difference between what is well or badly constructed, well or badly
composed
Latour’s discussion of compositionism also seems to blur at least some of the
distinctions we often make between literary authorship
and literary
scholarship
by suggesting the artist and the humanist ultimately draw upon
many of the same tools and processes in
and who is out
of the digital humanities community,
Steve Ramsay argued, Personally, I think
Digital Humanities is about building things. [. . .] If you are not making
anything, you are not . . . a digital humanist
distinctive
scholarly mode in digital humanities criticism
.
Even though it resists many of the rhetorical and formal conventions we have come to
associate with literary scholarship, compositionism in Latour’s definition
nevertheless engages processes of interpretation, deconstruction, and theoretical
framing. Latour’s manifesto
thus also provides insight into how those digital
humanists who like Ramsay are interested in building things may also respond to Alan
Liu’s call, in his own 2011 MLA address, for more engagement within digital
humanities with the quintessentially humanistic endeavor of cultural criticism
The critic participates in the world of literature not as a lawgiver or a team captain for this or that school of writing, but as a writer, a colleague of the poet and the novelist
As a digital humanist, I am persuaded by the assertions Latour, Ramsay, and Liu have
made about how academic scholarship in general and digital humanities scholarship in
particular can and should evolve in response to new technological and cultural
pressures. As a lawyer and legal scholar, I am also intrigued by how that evolution
might challenge the current regulatory framework in productive new ways. Copyright
law has frequently imported and even codified prevailing academic ideas about what
constitutes literature and literary scholarship
In the following section,
literaryevolved within and continues to inform the application of U.S. copyright law. The focus on the United States here results from both practical and strategic considerations. As a practical matter, a detailed examination of copyright law in multiple jurisdictions is beyond the scope of a single treatise, much less a single essay. Strategically, I want to continue what I see as a productive trend toward more granular studies of legal texts and legal history that add detail to broader international narratives such as the one Martha Woodmansee
piracyhave evolved alongside that of the authorial genius
highand
lowliterature, and between
originalauthorship and
derivativescholarship. That section also explores how, as digital humanists reconfigure the literary as a category by considering what place building or making things
As humanists, we confront an intellectual environment where we must constantly
demonstrate what we do is relevant and necessary. The law governing our work,
however, has been built around a presumption the literary objects we study (a
category that has been extended by analogy to cover visual, cinematic, dramatic, and
performing arts) are only useful
when they look like technical manuals.
Further, as digital humanists, we are engaged in a consideration of how new tools and
methods might fundamentally alter the shape of humanistic inquiry. In this too, we
are potentially confounded by jurisprudential use of the literary as a rather narrow
category that segregates high
from low
culture. Judicial deployment of
what I will refer to throughout as a belletristic
definition of the literary
places implicit aesthetic and formal limits on the acceptable artifacts of literary
study, as well as the scholarship produced by such study.
Ray Patterson Progress of Science and useful
Arts
useful,
the Constitution’s framers appear to
reject belletristic justifications of copyright grounded in appreciation of authorial
genius or artistic merit. Instead, the Constitution casts the the exclusive right
granted to authors and inventors
as a sort
of reward for rendering a civil service to the community writings,
as the proper subject of copyright regulation, coverage under the original Copyright
Act of 1790 for maps, charts, and
books,
in that order, makes fairly clear the category authors
included cartographers and technical writers, as well as novelists and poets. The
current version of the law, which was substantially codified in 1976, now defines
literary works
as any works,
other than audiovisual works, expressed in words, numbers, or other verbal or
numerical symbols or indicia, regardless of the nature of the material objects,
such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or
cards, in which they are embodied
Although the statutory definition of the literary remains quite broad, statutes and
legislative history provide, at best, only half the story. Putting together an
accurate account of how the law employs the literary as a category requires a turn to
case law, and a brief tour through significant cases where courts have defined key
concepts such as idea,
expression,
originality,
and fair use.
In reading these cases, I want to highlight
how judicial attempts to define other, legally significant categories often involve
an unreflective application of a definition of the literary drawn, not from the
Constitution or the copyright statute, but from somewhere else entirely. I am less
concerned with the problem of where the courts get this implicit definition of the
literary, than with the subsequent social and legal consequences of defining
literature
as a relatively small subset of literary works that can be
distinguished on the basis of their aesthetic appeal, or identifying critique as the
primary mode of literary scholarship. Each of these cases is a historically specific
response to a very complex set of circumstances. They are also the sources of
important legal doctrines that have been shaped by unarticulated assumptions about
the world the law is supposed to regulate. By understanding how judicial assumptions
about literature and the work of literary studies have influenced judicial
decision-making, I hope to provide some insight into how a reconfiguration within the
academy of those categories and relationships might have the potential to effect
substantial, beneficial change in the law.
From the outset, the First Amendment and the underlying policy of the copyright law —
to promote the progress of science, or knowledge, and the useful arts, or industry —
have exerted pressure on courts to place inherent limitations upon or create
exceptions to the exclusive rights of authors
Thus, the modern formulation of the idea-expression dichotomy originates in the Supreme Court case of
The copyright of a book on perspective, no matter how many drawings and illustrations it may contain, gives no exclusive right to the modes of drawing described, though they may never have been known or used before. By publishing the book without getting a patent for the art, the latter is given to the public.
Only copying of expression gives rise to copyright infringement; use of the ideas
does not. In the process of reaching its holding, the Court begins to break down the
broad, legislative category of writings
— e.g., maps, charts, books, etc. —
into literary expression that consists primarily of words and other forms of
expression that comprise illustrations of
lines and figures
and diagrams
(which merely stand in the place of words)
The fact that the art is described in the book by
illustrations of lines and figures which are reproduced in practice in the
application of the art makes no difference. Those illustrations are the mere
language employed by the author to convey his ideas more clearly. Had he used
words of description instead of diagrams (which merely stand in the place of
words), there could not be the slightest doubt that others, applying the art to
practical use, might lawfully draw the lines and diagrams which were in the
author’s mind, and which he thus described by words in his book
Unlike words, which maintain a stable identity as expression throughout the Court’s
discussion, the diagrams which merely stand in the
place of words
and thus presumably constitute expression in one sentence
become in the next ideas which were in the author’s
mind, and which he thus described by words in his book.
In addition to the distinction between idea and expression, the Court thus ends up
drawing a line between two different kinds of expression. We get expression in which
the idea is separable from the form in which it has been embodied, which the Court
repeatedly illustrates through resort to literary examples, and expression in which
the idea has merged,
which the Court always identifies with non-verbal,
non-literary modes of representation: The
very object of publishing a book on science or the useful arts is to communicate
to the world the useful knowledge which it contains. But this object would be
frustrated if the knowledge could not be used without incurring the guilt of
piracy of the book. And where the art it teaches cannot be used without employing
the methods and diagrams used to illustrate the book, or such as are similar to
them, such methods and diagrams are to be considered as necessary incidents to the
art, and given therewith to the public — not given for the purpose of publication
in other works explanatory of the art, but for the purpose of practical
application.
Although expression is generally subject to copyright protection, in some cases,
pursuant to what has come to be called the merger
doctrine, even that is given
over to the public along with the ideas expressed where one must reproduce the
expression not in other works explanatory of the
art, but for the purpose of practical application.
The quoted passage
further demonstrates how the circumstances of the case, which involved a technical
manual, set the conceptual parameters the Court employed to think through the
problem. In its analysis, the Court did not hold the abstractions behind images or
words are never subject to copyright protection under any circumstances. It also did
not conclude non-literary expression will never be separable from the ideas it
embodies. Rather, it concluded the kinds of abstractions, the methods
and
knowledge
involved in the particular case of
The Court’s reasoning, as quoted thus far, would have been entirely sufficient to
justify its holding that blank account
books are not the subject of copyright, and that the mere copyright of Selden’s
book did not confer upon him the exclusive right to make and use account books,
ruled and arranged as designated by him and described and illustrated in said
book
ornamental designs or pictorial illustrations addressed to the taste
:
Of course these observations are not
intended to apply to ornamental designs or pictorial illustrations addressed to
the taste. Of these it may be said that their form is their essence, and their
object, the production of pleasure in their contemplation. This is their final
end. They are as much the product of genius and the result of composition as are
the lines of the poet or the historian’s period. On the other hand, the teachings
of science and the rules and methods of useful art have their final end in
application and use, and this application and use are what the public derive from
the publication of a book which teaches them. But as embodied and taught in a
literary composition or book, their essence consists only in their statement. This
alone is what is secured by the copyright. The use by another of the same methods
of statement, whether in words or illustrations, in a book published for teaching
the art would undoubtedly be an infringement of the copyright.
I quote at length here in order to demonstrate more clearly how the Court introduces
extra-legal concepts regarding literature, literary production, and the various
functions of different kinds of writings
into its legal reasoning. Ornamental designs or pictorial illustrations addressed
to the taste
are like the lines of the
poet or the historian’s period,
in that the visual and written material
both are the product of genius and the result of
composition.
As such, the Court concludes, both can be distinguished from
the mere language
and instructional diagrams
of the technical manual at
issue in the case at hand, which are the more mundane vehicles through which
knowledge is communicated. Although the Court is still concerned with untangling the
distinctions between idea and expression, and between patent and copyright as
outlined legislatively, its conclusions about what can and cannot be borrowed, what
can and cannot be protected, are clearly influenced by more than just the letter of
the law as it currently stood. The influence of extra-legal, primarily aesthetic
considerations about the nature of art in general and literature in particular leads
the Court to distinguish artistic creation from technological innovation, ornament
from utility, and the production of pleasure
from the communication of useful knowledge. These conceptual distinctions continue to
permeate the academy and often trouble digital humanists and other scholars whose
work ignores or transcends them, and they also continue to play a significant role in
how courts interpret and apply the law.
bundle of rightsgranted to the owners of copyrights in literary works
By adding the translation right, Congress legislatively overruled the decision in
abstractideas from
concreteexpression. Unlike the Supreme Court, however, the lower court in
An author may be said to be the creator or inventor, both of the ideas contained in his book, and the combination of words to represent them. Before publication he has the exclusive possession of his invention. His dominion is perfect. But when he has published his book, and given his thoughts, sentiments, knowledge or discoveries to the world, he can have no longer an exclusive possession of them. Such an appropriation becomes impossible, and is inconsistent with the object of publication. The author’s conceptions have become the common property of his readers, who cannot be deprived of the use of them, nor of their right to communicate them to another clothed in their own language, by lecture or by treatise.
Here, in a case involving a literary work in both the legal and the commonplace
understanding, the court describes the author as the creator or
of her book, who upon publication gives up her conceptions
to her readers, who cannot be deprived of the
(emphasis added): The claim of literary property, therefore, after publication,
cannot be in the ideas, sentiments, or the creations of the imagination of the
poet or novelist as dissevered from the language, idiom, style, or the outward
semblance and exhibition of them. His exclusive property in the creation of his
mind, cannot be vested in the author as abstractions, but only in the concrete
form which he has given them, and the language in which he has clothed them.
The
knowledgeand
methods.In this earlier case, the lower court takes a much more expansive approach, concluding
ideas, sentiments, or the creations of the imagination of the poet or novelist as dissevered from the language, idiom, style, or the outward semblance and exhibition of them,all resided outside the domain of copyright. The holding thus expressly rejected Stowe’s argument that as the
the authorefficient causeof a thing,
[i]n respect to a book . . . is the creator of the ideasit contains and therefore is entitled, pursuant to copyright law, to the exclusive right to sell them.
In my analysis of these two cases, I am attempting, as Latour suggests, to draw
attention away from the irrelevant
difference between what is constructed and what is not constructed, toward the
crucial difference between what is well or badly constructed, well or badly
composed
The Congressional decision effectively to overrule
writingsinto the sub-categories of writings that are
useful,that is works whose
final endis to teach the public about the useful arts, and writings that are literary in a conventional sense, writings whose
form is their essence,and whose
final endis in
the production of pleasure in their contemplation
This narrow definition of the literary is implicit in how the idea v. expression
dichotomy is used today. To put it another way, in order to understand how
ideas
and expression
are distinguished under the law, we must read
into the law a distinction between technological innovation and artistic creation,
between technical and scientific literature and literary
works like novels and
plays. In scientific and technical literature, the distinction between idea and
expression is relatively clear. The ideas themselves, furthermore, are of use
to the public, and understanding use
in this context also depends upon drawing
fairly conventional distinctions between technological or scientific, and artistic
endeavors. Hence the potential those useful
ideas possess to become the
subject of patent law and their availability for unlicensed reproduction if they are
not patented. As codified in Title 17, Section 102(b) of the Copyright Act of 1976,
the current version of the statute, the idea-expression dichotomy continues to
associate idea
with a utilitarian vocabulary: In no case does copyright protection for an original work of authorship extend to
any idea, procedure, process, system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described, explained,
illustrated, or embodied in such work
[17 U.S.C. Section 102(b)].
In the latter category of literary objects addressed by the Court in
mere languagein which an author’s ideas were
clothed.Indeed, after copyright was expanded yet again to incorporate an exclusive right to make
derivativeworks, subsequent cases extended copyright protection to conceptual elements such as the story and the characters in a fictional work, bringing them under the umbrella of copyrightable expression
By announcing copyright coverage is potentially broader for what we might, purely as a matter of convenience, call high, or creative literary works,
product of genius and the result of composition,are to be valued for the pleasure they produce, rather than their utility. They are not subject to patent law, nor do they demand to be circulated as freely as the
usefulideas we find in low, or
practicalliterary works like maps, charts, and technical manuals. The Court implicitly concluded the
Progress of Science and the useful Artsis not directly served by their circulation as material for use and application, rather than simple consumption. The Court’s reasoning also hinges on yet another implicit presumption works produced for instruction are not generally
addressed to the taste.They will not in the ordinary case
produce pleasure in their contemplation,at least not in the same manner as belletristic literary works whose final end is to do so.
Like the idea-expression dichotomy, the fair use doctrine creates breathing room for
the public domain in U.S. copyright law. In many cases, though, judicial descriptions
of fair uses have effectively limited literary scholars to what Latour has identified
as the tools of critique. The fair use analysis relies on a presumption the items
enumerated in the fair use preamble — criticism, comment, news reporting, teaching . . . , scholarship, or
research
[17 U.S.C. Section 107] — will not look like creative artifacts
addressed to the taste,
that
literary scholarship will not resemble, except in the most superficial way, the
literary objects with which it engages. This presumption literary scholarship will
not resemble its objects of study further reflects an implicit belief literary
scholars will ordinarily direct their work to the study of high
literature.
These formal expectations operate hand in glove with a very narrow understanding of
what literary scholars may do with the work they study. Rather than using
pre-existing material to build or create, literary scholars are expected to limit
their work to dissecting, examining, commenting, discussing. For those scholars who
desire formal innovation, who would take up Latour’s challenge to create a scholarly
discourse that shares as much with art,
painting, music, theater, dance,
make[s] war
Digital humanists have already begun to reconfigure the literary as a category by
considering whether using literary objects as building blocks for archives and
exhibits designed to preserve, display, and study them can be considered an act of
literary scholarship. When added to the fact many digital humanists already include
non-traditional
texts such as code, video games, and social media, for
example, in the list of objects that might be studied and used in ways similar to
novels and plays, one gets the sense digital humanities may change substantially both
our common understanding of the literary
as a category and how we use it as a
means of distinguishing one thing from another. Yet even as our working definitions
of the literary are evolving, legal incorporation of prior definitions has resulted
in a system that effectively limits the work of scholars who study artifacts that are
literary, in the narrow, belletristic sense, to producing traditional academic
criticism in the form of articles and books, at least those scholars who want to
avoid getting sued and do not have the money to pay potentially exorbitant license or
attorneys’ fees.
In the nearly 150 years since
thinv.
thickcopyright
Others have used the thick v. thin distinction to describe the operation of
copyright more generally, observing how copyright has evolved from a relatively
thin
right to prevent exact duplication for a limited time into a
thick
bundle of rights that can be invoked to prevent many different
forms of reuse for a much longer term
thinfrom creative works, where originality and copyrightable subject matter are abundant and protection is
thick.
works of authorshipreceive copyright protection, not all works are therefore created equal. Creative and artistic works, works that are
literaryin the narrower, belletristic sense in that they can lay
claim to consideration on the ground of beauty of form or emotional effect,
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Section 107 codifies a long line of case law that originated in 1841 with
preambleenumerating typical examples of fair use —
criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research[17 U.S.C. Section 107] — does not control whether something is or is not a fair use. In every case, courts must apply the four factors, along with any other factors they consider relevant to making a fair use determination. Nevertheless, in practice, the preamble sets a sort of aesthetic standard informing judicial application of the four-factor test.
The first factor, regarding the purpose and
character
of the allegedly infringing use, is supposed to cull thieves of
creative expression from the herd of those who are simply borrowing facts, figures,
and ideas, or who are treating creative expression like facts
to be displayed,
dissected, and discussed, i.e., critiqued. The second factor, concerning the nature of the copyrighted work,
is designed to
separate works that are really cobbled together out of facts, figures, and history —
i.e., works where the copyright is thin
— from those high literary works that
comprise mostly creative expression and thus get thicker
protection. Under the
law as it has been interpreted and applied, creative, artistic works get a high level
of copyright protection in the fair use analysis. They are also less likely to be
viewed as fair uses. Consequently, if one authors a creative, artistic work that
makes substantial use of pre-existing expression from another creative, artistic work
that has not yet entered the public domain, the safest strategy would be to claim
one’s work parodies the original.
So, for example, in
ensure that:a parodic character may reasonably be perceivedin [Randall’s] work
The Supreme Court’s definition of parody in Campbell [v. Acuff Rose], however, is somewhat vague. On the one hand, the Court suggests that the aim of parody iscomic effect or ridicule,but it then proceeds to discuss parody more expansively in terms of itscommentaryon the original. In light of the admonition in Campbell that courts should not judge the quality of the work or the success of the attempted humor in discerning its parodic character, we choose to take the broader view.(citations omitted)
Where engagement with a belletristic idea of the literary — its definition, its utility in defining legal concepts, its implicit presumptions about the relationship between art and utility — remains largely in the background in
For purposes of our fair-use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work. Under this definition, the parodic character of TWDG is clear. TWDG is not a general commentary upon the Civil-War-era American South, but a specific criticism of and rejoinder to the depiction of slavery and the relationships between blacks and whites in GWTW. The fact that Randall chose to convey her criticisms of GWTW through a work of fiction, which she contends is a more powerful vehicle for her message than a scholarly article, does not, in and of itself, deprive TWDG of fair-use protection. We therefore proceed to an analysis of the four fair-use factors.(citations omitted)
Where parody is generally considered to be a fair use, satire is not. In this passage, the court struggles, as a number of courts have, with a literary distinction that has important legal consequences. As the
Parody, which is directed toward a particular literary or artistic work, is distinguishable from satire, which more broadly addresses the institutions and mores of a slice of society
a general commentary upon the Civil-War-era American South.
The line courts draw between parody and satire is grounded in a presumption the work of literary criticism is to critique the author’s craft, rather than explore the broader socio-political circumstances that might have produced or might be reflected in the appropriated work. To the extent
formalqualities of
scholarly articleabout the book. That narrow definition of literary scholarship only applies, however, when the allegedly infringing work itself looks suspiciously like a belletristic literary object. Had Randall chosen to write an academic
commentary upon the Civil-War-era American South,she very likely could have quoted extensively, word-for-word — and without fear of a copyright infringement action — from
parodic characterbefore engaging in the four-factor analysis, the
work[s] of fictionthat will, under most circumstances not constitute fair use, that is unless they can be construed as
parodyengaged, like a more recognizable piece of literary criticism, in a formalist critique of the appropriated work.
The court’s holding in
A parody is a work that seeks to comment upon or criticize another work by appropriating elements of the original.Parody needs to mimic an original to make its point, and so has some claim to use the creation of itsThus, Randall has fully employed thosevictim’s (or collective victims’) imagination.conscripted elements from GWTWto make war against it
Some see in the digital humanities a potential to transform humanistic inquiry from a primarily critical enterprise into something that is still critical but in which critique is just one step in a longer process of something that might resemble Latour’s idea of composition. If this is the case, then digital humanists have a vested interest in the ongoing debate regarding the evolution of international copyright law. We need to ask ourselves whether or how we should reconfigure or even continue to deploy questionable aesthetic categories the law preserves like flies in amber when talking about the work we do as digital humanists.
Perhaps one of the most important things we gain from understanding how courts have
drawn upon and engaged with the literary as a category when interpreting and applying
copyright law, is a better sense of just how much is riding upon the outcome of
academic debates regarding the future of humanistic inquiry and scholarly
communication. As a practical matter, preservation within the academy of traditional
aesthetic and functional distinctions between literary objects and literary
scholarship, between technological innovation and artistic creation, between
composition and critique, will facilitate the continued preservation of those same
distinctions within US copyright law. That in turn will mean that, under the law at
least, all objects of study will not be available in the same way to the same kinds
of activities. Perhaps that is a good thing. Because public domain materials are
generally available to a wider range of scholarly activities involving building or
composition, keeping the binary intact might ensure a continued interest in and
engagement with older work in spite of external pressures to specialize in more
relevant
areas such as new media studies rather than historical literary
periods. Modern literary artifacts would continue to be amenable only to relatively
traditional methods, though. Difficulty convincing our colleagues and institutions to
value certain modes of scholarly production translates in the courtroom into judicial
confusion over whether or not such work constitutes scholarship
and fair use.
Preserving the old categories in the law and within our disciplines would help to
perpetuate a legal as well as a professional distinction between acceptable or legal
uses of literary work in scholarly study and disfavored or illegal (unless licensed)
uses.
Yet even as judicial interpretations of U.S. copyright law have incorporated narrow
and confining definitions of both the literary and literary scholarship, some courts
have also demonstrated how reconfiguring the literary as a category potentially opens
up a more expansive space for humanistic inquiry. Just as digital and traditional
humanists alike have called into question the criteria used to distinguish high from
low or creative from technical literary artifacts, so too have U.S. courts begun to
question the utility of such categories in analyzing the purpose and character
of an allegedly infringing use in cases involving a fair use defense. Courts in a
number of recent cases building upon the decisions in
transformative usein order to determine whether a use is fair. Rather than relying on traditional aesthetic criteria to determine whether a given use is
criticalor merely
derivativeof the pre-existing work, courts applying transformative use consider instead whether
the secondary use adds value to the original — if [copyrightable expression in the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understanding
Thus, in the case of
transformativeuse of copyrightable subject matter from Blanch’s photograph,
Silk Sandals:
Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch’sSilk Sandals, but to employ itin the creation of new information, new aesthetics, new insights and understandings.When, as here, the copyrighted work is used asraw material,in the furtherance of distinct creative or communicative objectives, the use is transformative.
The court’s discussion of transformative use, as an activity that creates new information, new aesthetics, new insights
and understandings
from the raw material
of copyrighted expression
calls to mind Latour’s description of composition, in which the compositionist aims
not (or at least not only) to break down
walls, destroy idols, ridicule prejudices
but to repair, take care, assemble, reassemble, stitch
together
a set of utterly
heterogeneous parts
into something new and at least momentarily useful
The Second Circuit, unlike the Eleventh Circuit in
We have applied [the transformative use doctrine] in too many non-parody cases to require citation for the proposition that the broad principles of [transformative use] are not limited to cases involving parody. But the satire/parody distinction may nevertheless be relevant to the application of these principles
creativeor
artistic:
Accepting thatSilk Sandalsis a creative work, though, it does not follow that the second fair-use factor. . . has significant implications for our overall fair-use analysis. As we recently explained, . . .the second factor may be of limited usefulness where the creative work of art is being used for a transformative purpose
The decision in
criticism, comment, news reporting, teaching . . . , scholarship, or research[17 U.S.C. Section 107]. The court’s reasoning also destabilizes the distinction U.S. copyright law has drawn for more than a century between works whose end is instruction, and works whose end lies in producing pleasure in the contemplation.
knowledgeand
methodsshould be available in the public domain for use as well as consumption. In
compositionand digital humanists working in non-traditional scholarly modes and media.
As digital humanists make the argument in promotion and tenure review that humanities scholarship does not have to look like traditional journal or book publication in order to do similar scholarly work or benefit the public in substantial and meaningful ways, a positive legal response to that argument would seem to provide yet another source of authority on which we can rely. After all, as a practical matter, the people making the argument and convincing judges are, in fact, often our colleagues in academia, filing briefs as friends of the court in significant cases, or working as expert witnesses hired by the parties or as special referees appointed by the court. One has to wonder why we have been relatively successful in making this argument outside of the academy in high-stakes copyright litigation, but still sometimes face substantial opposition within our own academic departments. In many cases, not only the judicial opinions, but also the parties’ legal memoranda in which transformative use arguments have been articulated — and rebutted — are a matter of public record. We should consider whether we can productively mine these textual resources for vocabulary and conceptual framing as we create the standards we will apply in evaluating digital and non-traditional scholarship, standards such as the MLA’s
Speaking more broadly, I hope this discussion of U.S. copyright law and the literary
demonstrates how what we do matters beyond the walls of the ivory tower. At times,
the corporate economic interests that have shaped recent copyright legislation such
as the Digital Millennium Copyright Act (the DMCA
) and the Sonny Bono
Copyright Term Extension, which legislation most scholars agree has created a more
hostile environment for fair users of copyrighted content and decimated the public
domain, can seem an almost overwhelming force. In 2010, however, in a round of
federal rulemaking under the DMCA, libraries and producers of fan culture secured
significant regulatory clarifications to facilitate their continued work blackout
campaign against the Stop Online Piracy and Protect Intellectual
Property Acts (SOPA
and PIPA,
respectively) helped to persuade US
legislators to put the bills on hold indefinitely. Scholars of all disciplinary
stripes have played an important role in each of these efforts.
The language of literary scholarship and humanistic inquiry has done more than simply shape our own institutional practices. Through the integration of that language into case and even statutory law, certain strands of these discourses have in some situations acquired the force of law, for better or worse. We should therefore be careful as we call for reform of the academy. Law and policy makers do not regulate in a vacuum; they shape regulations to promote or discourage certain tendencies that already exist within the systems affected by the exercise of regulatory authority. Understanding the process reveals a potential opportunity to consider how, as we reconfigure the academic workplace, we might work more productively towards producing a regulatory framework more favorable to the public the academy ostensibly exists to serve, the policies to which we adhere, as well as the work we would like to do.
Differences of opinion exist among digital humanists about how to define the digital humanities as a discipline. Many of the various definitions share in common a tendency to turn away from defining digital humanities in relation to the literary, both as a category that may apply to the objects we study, and as a category into which the work we produce might fall. One fairly prevalent and commonplace definition of the literary has been deployed in the copyright law context to define scholarship and teaching in relatively narrow and problematic ways. One might question, therefore, the continued effectiveness of the literary as a vehicle for conceptualizing the work of digital humanities, even for digital humanists working in traditional areas of literary studies. If digital humanists are to take advantage of the opportunity to affect public policy, however, by modeling at the disciplinary and institutional levels how we believe intellectual property regulation does and should work, then we must be able to articulate an alternative formulation of the literary that will prove useful inside the academy as well as the courtroom. The Second Circuit in
Compositionist Manifesto.
Author.