INNOVATION LAW & POLICY WORKSHOP
presents
Barton Beebe
New York University School of Law
Bleistein, American Copyright Law, and the Problem of Aesthetic Progress
Thursday, March 24, 2016
12:30 p.m. - 2:00 p.m.
Solarium (Room FA2), Falconer Hall
84 Queen's Park
Please register, by sending an email to: centre.ilp@utoronto.ca
Abstract
From the very origins of American copyright law in the Intellectual Property Clause, whose preamble “To Promote the Progress of Science and useful Arts” excludes any reference to the “fine arts,” our copyright law has struggled to reconcile its fundamental purpose, the promotion of progress, with the aesthetic. In the 1903 case of Bleistein v. Donaldson Lithographic Co., the Supreme Court was finally forced to attempt such a reconciliation and to explain how progress in the aesthetic, rather than in the scientific or technological, might be assessed. In an opinion that for all of our attention to it still remains underappreciated and fundamentally misinterpreted by courts and commentators alike, the new Justice Oliver Wendell Holmes, Jr. established that “personality” was the basis of copyright protection, but that the purpose of copyright protection, even of aesthetic works, was progress in the form of “commercial value.” This Article argues that Justice Holmes’s market-value theory of aesthetic progress and the cavalier, peremptory manner in which he formulated it had a profoundly damaging influence on American copyright law and on our pursuit through it of aesthetic progress. After Bleistein, the law coalesced around the “commercial value” of authorial works, creative products, aesthetic objects—and away from the “personality” of authorial work, creative practice, aesthetic subjects. Focusing on aesthetic ends rather than aesthetic means, the law adopted for the aesthetic, as it had for the scientific and technological, an “accumulationist” model of progress, one which defined aesthetic progress as simply the accumulation over time of more and more aesthetic works. Since Bleistein’s fateful commitment to accumulation, it has not been the “Romantic author” but rather the fetishized intellectual commodity that has been the cynosure of the law and driven the law’s expansion.
