The Intellectual Property Clause of the U.S. Constitution states that Congress shall have power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The clause displays an elegantly interwoven parallel construction much favored in eighteenth-century prose and poetry:
At once, it empowers Congress, through copyright law, “to promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings” and, through patent law, “to promote the Progress of . . . useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries.”
But for all of its apparent balance, the clause suffers from two fundamental asymmetries. Courts and commentators have pondered over one of these for more than two centuries. The other appears to have attracted in that same length of time only passing attention in one federal court case, the turn-of-the-twentieth-century case of Bleistein v. Donaldson Lithographic Co.
The first problem goes to the unresolved relation between the Intellectual Property Clause’s two subclauses, which pivot awkwardly about the comma. Does the Progress Clause (“To promote the Progress of Science and useful Arts . . .”) establish a purpose that limits the means specified in the Exclusive Rights Clause (“by securing for limited Times . . .”) so that Congress may provide monopoly rights in intellecttual works only when doing so will promote progress?
Or does the Exclusive Rights Clause limit the means by which Congress may promote progress, so that Congress may seek “to promote the Progress of Science and useful Arts” only by providing intellectual property rights?
From the late eighteenth through much of the nineteenth century, the prevailing view in Congress and the courts answered yes to both questions: Congress could only promote progress through intellectual property rights
and could only provide intellectual property rights when doing so would promote progress.
In the present day, the prevailing view answers no to both. Neither phrase, it is now generally thought, significantly limits the other. Little more than a “preamble,”
mere “introductory language,”
the Progress Clause proposes but does not require that Congress promote progress;
the Exclusive Rights Clause simply volunteers an example of one possible means of doing so.
The second, less remarked asymmetry is more profound. It goes to a peculiar vacancy in the Progress Clause, one that apparently only the courts in the Bleistein case ever took the time to notice. While several state copyright statutes in the 1780s spoke broadly of their intent to encourage the “various arts and sciences,”
with one such statute entitled simply “An act for the encouragement of arts and sciences,”
the Progress Clause conspicuously avoids the phrase “arts and sciences,” otherwise so pervasive in the eighteenth century.
Instead, in the phrase “to promote the Progress of Science and useful Arts,” the clause appears to take pains to exclude any reference to a rather significant category of intellectual achievement: the fine arts. To be sure, the late eighteenth century had not definitively settled the meanings of the terms “science” and “useful arts,” but the former was generally understood to refer to systematic theoretical and empirical knowledge (i.e., Wissenschaft), the latter to technology or commercial practices.
More significantly for our purposes, it was well recognized at the time that neither category encompassed the fine arts.
The failure of the Progress Clause to reference the fine arts is all the more mysterious given that the Framers elsewhere clearly subscribed to the general belief of the time that both the “arts and sciences” were progressing
and that “a flourishing state of the Arts and Sciences contributes to National prosperity and reputation.”
Yet the Progress Clause excluded the fine arts, and we have no records from the time or commentary since to explain this aporia, this banished category.
The exclusion of the fine arts may momentarily raise a rather awkward question, as it did for the courts in Bleistein: To the extent that our present-day intellectual property laws provide exclusive rights to works outside of the categories of copyrightable “Science” and patentable “useful Arts,” are such laws unconstitutional? The answer, of course, must be that the Constitution somehow permits the provision of exclusive rights in such works, perhaps through the increasingly flexible term “Writings,”
perhaps through the Commerce Clause,
or perhaps by holding that the Progress Clause cannot limit the subject matter of the Exclusive Rights Clause. If the actual language establishing Congress’s progress power does not allow us to reach this result, then it probably makes good sense to ignore it—as the Supreme Court has done repeatedly, most notably in Goldstein v. California, when it quoted the Intellectual Property Clause in full and then explained without further comment that the clause’s “objective is to promote the progress of science and the arts.”
If the Framers sought to write the fine arts out of the Intellectual Property Clause, we have since succeeded, when expedient, in reading the word “useful” out of the clause. This Article does not wish to suggest a different course.
I refer to the curious absence of the fine arts from the language of the Progress Clause to emphasize something else: that from its very origins in the Intellectual Property Clause, American intellectual property law has struggled to reconcile its fundamental purpose, the promotion of progress, with the aesthetic.
If the current incoherence of the law’s treatment of aesthetic issues is any indication, this struggle continues still—indeed, it will confront the Supreme Court this term in Varsity Brands, Inc. v. Star Athletica, LLC.
Though the Framers apparently sought in the Progress Clause to evade the aesthetic, we have overridden their efforts and treat the clause as if it addresses “science and the arts.” And yet, like the Framers, though we routinely speak of technological progress, we cannot seem to bring ourselves to speak of aesthetic progress. Admittedly, one finds in the intellectual property case law occasional references to the impact of copyright law on “artistic progress,”
or, more grudgingly, “intellectual (and artistic) progress.”
More recently, advocates seeking a new fashion-design protection law have declared as the law’s constitutionally sanctioned goal the “Progress” of fashion
—though one Congressman in favor of reform struggled mightily to explain where exactly fashion fits among “Science and useful Arts.”
But as the fashion-design protection debate makes especially clear, with its unexamined assumption that the latest fashion trend (or cycle) represents “Progress” over what came before it, we have no well-developed theory of what aesthetic progress—in contrast to technological, economic, or even political progress—might entail. The result is that our intellectual property courts lack even basic guidance as to what we hope to accomplish by providing property rights in aesthetic expression.
There may be many reasons for our failure to come to terms with aesthetic progress, not least that the concepts of the aesthetic and progress are both seriously perplexing, but there is a pivotal historical event that goes far toward explaining our present predicament: the 1903 Supreme Court opinion in Bleistein.
The basic question in the case was whether the illustrations in George Bleistein’s three posters advertising a circus were copyrightable as “pictorial illustrations or works connected with the fine arts” under the terms of the 1874 Amendment to the Patent and Copyright Act of 1870.
The statute’s reference to the fine arts twisted the lower courts into knots. As the district court volunteered, “the curious might moot the question”
of whether the Intellectual Property Clause allowed copyright protection of the images. In the court’s view, the posters were clearly not “Science,” and it was doubtful that they qualified as “useful Arts”—the difference between the useful arts and the fine arts was, for the court, a “matter of common knowledge.”
But the court ultimately avoided the constitutional question by denying protecttion on the ground that the posters, designed merely “to lure men to a circus,” did not qualify as “connected with the fine arts” under the terms of the statute.
The Sixth Circuit Court of Appeals affirmed.
The terms of the Intellectual Property Clause guided its construction of the 1870 Act:
What we hold is this: that if a . . . picture has no other use than that of a mere advertisement, and no value aside from this function, it would not be promotive of the useful arts, within the meaning of the constitutional provision, to protect the ‘author’ in the exclusive use thereof, and the copyright statute should not be construed as including such a publication, if any other construction is admissible.
The Sixth Circuit’s reasoning was remarkable. Because the illustrations lacked “any intrinsic merit or value” and failed to “rise to the dignity of art,” they were not promotive of the useful arts under the “obvious meaning” of the Intellectual Property Clause and therefore could not qualify as fine art under the statute.
Bleistein thus called upon the Supreme Court to decide whether to deny copyright protection to the works at issue because they lacked sufficient merit to promote progress. This the Court might very well have been willing to do—as lower courts had done in the past
—had the works at issue failed in some way to advance “Science.” But Bleistein’s circus posters were aesthetic works, and the question was essentially whether these works promoted aesthetic progress. In Bleistein, in short, the constitutionally sanctified concept of “progress” was finally forced to come to terms with—and forced upon—the aesthetic. The result, as this Article seeks to show, would prove to be a disaster for American copyright law.
It did not help that in the author of the Bleistein majority opinion, the concept of aesthetic progress found its perfect nemesis: the recently appointed Justice Oliver Wendell Holmes, Jr.
Bleistein called forth the many tensions in Holmes’s own personality and outlook—tensions that would then endure in our copyright law. On the one hand, the opinion allowed Holmes to make a great show of his aesthetic cultivation. Months before handing down Bleistein, he had adopted a flamboyantly aestheticist pose in a now-forgotten law school speech that anticipated much of Bleistein’s rhetoric.
In the short opinion itself, he somehow managed to allude to Velasquez, Whistler, Müller, Degas, Goya, Manet, and Rembrandt and to quote from Ruskin, all in two pages.
But on the other hand, Bleistein also brought out Holmes’s coldly unsentimental, even fatalistic understanding of the judge’s role in a democracy. Fully consonant with his larger political philosophy, the aesthetic was a realm that boasted a long and very respectable tradition of radical disinterestedness: de gustibus non est disputandum (“there can be no disputing matters of taste”).
Consistent with this tradition and in direct repudiation of the Sixth Circuit’s foray into art criticism, Holmes produced his celebrated paragraph-length declaration that judges should not judge the merit of an aesthetic work but should rely instead on the work’s “commercial value,” which could alone serve as an index of merit and as proof that the work promoted progress.
Cited in hundreds of federal court opinions and over a thousand law review articles, Bleistein is arguably the most influential copyright opinion the Court has ever produced, so influential that we now take much of its substance for granted as common sense. Yet as this Article seeks to show, the case remains underappreciated
and fundamentally misunderstood by courts and commentators. The purpose of this Article is to correct our understanding of Bleistein and explain the extraordinary impact of the case on our copyright law—in order finally to overcome it.
By way of background, Part I reviews the emergence of the concept of aesthetic progress in the Atlantic World in the seventeenth and eighteenth centuries. It speculates that the Framers omitted any reference to the fine arts from the Intellectual Property Clause in order to protect the aesthetic and the imperative of “Progress” from each other. It then draws upon early twentieth-century American pragmatist philosophy to outline a pragmatist aesthetic approach to aesthetic progress. As we will see, Holmes came close to adopting this approach in Bleistein but ultimately rejected it, embracing instead its antithesis.
Part II closely reads Bleistein and seeks to correct two significant misreadings of Holmes’s opinion. First, courts and commentators have long misunderstood Holmes’s oft-cited declaration in Bleistein that in order to satisfy copyright law’s originality requirement, a work need merely express the author’s “personality”
and, furthermore, that almost any uncopied expression will inevitably do so. Scholars have cited Bleistein’s nominal originality requirement, which survives in current law, as conclusive evidence that literary romanticism did not significantly influence American copyright law.
In fact, when understood in its specifically American cultural context, Bleistein’s reliance on “personality” represents one of the strongest examples in the history of American copyright law of specifically American literary romanticism’s influence on the law.
Second, we have misunderstood Holmes’s equally oft-cited call for judicial aesthetic neutrality. We have long read it as addressed, like his invocation of “personality,” to copyright law’s originality requirement. It was not. It was a direct response to Justice Harlan’s dissenting view and the Sixth Circuit Court of Appeals’ ruling below that the aesthetic works at issue were unprotectable because they failed to satisfy the constitutional requirement, as then understood, that the works must “promote Progress” to qualify for protection under the Intellectual Property Clause.
As Part II explains, our basic misunderstanding of these two crucial moments in Bleistein has obscured the deeper workings of the opinion and the degree to which it formed the principal turning point in the development of our copyright law, making the law, for better and worse, distinctively modern and distinctively American. In Bleistein, Holmes drew upon American literary romanticism’s glorification of “personality” to extol individual personality as at once commonplace and vital, so vital that its presence in the works at issue could alone satisfy copyright law’s originality requirement. And yet strangely, he then declined to find that personality could also satisfy the law’s progress requirement. Instead, he held that it was the work’s “commercial value” that did so.
The work constituted “Progress” not because someone was willing to make it and express his unique personality through it but only because someone else was willing to pay for it. Holmes’s fateful mistake, one with which we are still living, was thus to divide the basis of copyright protection, personality, from the purpose of such protection, progress in the form of something other than, if not opposed to, personality—namely “commercial value.”
Part III addresses Bleistein’s legacy. Compounding his error, Holmes struck his divide between personality and progress in such a characteristically cavalier, peremptory manner that subsequent courts and commentators easily confused—as they still do—Bleistein’s separate analyses of the originality and progress requirements. “Commercial value” came to dominate our understanding of both requirements. The effect of Bleistein was thus to substantially advance the rise of “commercial value” as both the basis and purpose of American copyright law and to quicken the decline and eventual erasure of personality as a significant factor in the law. Where the law might have evolved into a personality-oriented regime focused on aesthetic subjects, it instead devolved into a commodity-oriented regime focused on aesthetic objects; where the law might have focused on the intrinsic value to the person of the process of aesthetic creation, it instead came to focus on the exchange value to the consumer of the products of aesthetic creation. In Bleistein’s aftermath, the law adopted for the aesthetic, as it has for the scientific and technological, an “accumulationist” model of progress, one which defines aesthetic progress as simply the accumulation over time of more and more aesthetic things.
Part IV returns to pragmatist aesthetic thought to outline, as a practical matter, how we might correct or at least overcome Holmes’s mistake. It advocates concrete reforms in functionality, transformativeness, and moral rights doctrine. The need for these reforms has grown more urgent. Bleistein was not alone responsible for the underlying historical trend in American copyright law toward accumulation. Holmes’s opinion partook of larger shifts in the law brought on by the rise of corporate authorship and of consumer society.
Indeed, Bleistein’s accumulationist notion of aesthetic progress, obsessed as it has since become with the growth rate of the gross aesthetic product of the nation, might have made some sense for the twentieth-century consumer society in which it was born. But the technological and cultural conditions that underlay Bleistein have now fundamentally changed. The Part urges reforms that seek to promote the progress of, rather than suppress, our current condition of massively distributed authorship, user-generated content, and, at least as an aesthetic matter, post-scarcity.
I. The Problem of Aesthetic Progress
The idea of aesthetic progress may strike the present-day reader as exceedingly strange, so let us begin with its converse, the idea of aesthetic regress. Since roughly 1910, this latter idea perhaps comes more naturally to us.
Indeed, in Bleistein, Holmes appeared to take the familiarity of aesthetic regress for granted when he addressed one of the defendant’s main arguments, that the Bleistein posters could not qualify for copyright protection as “illustrations” under the terms of the 1870 Act because they were mere advertising posters.
Holmes responded: “The word ‘illustrations’ does not mean that they must illustrate the text of a book, and that the etchings of Rembrandt or Müller’s engraving of the Madonna di San Sisto could not be protected today if any man were able to produce them.”
This final aside—“if any man were able to produce them”—is characteristically Holmesian, as is the example of Johann Friedrich Wilhelm Müller’s 1816 engraving. There can be little doubt that Holmes, a lifelong connoisseur of prints,
was aware that Müller spent the final decades of his life working solely on his engraving of Raphael’s Sistine Madonna and that he was said to have been so physically and mentally exhausted by the undertaking that it killed him before he ever saw a finished print of his work.
The legend of Müller’s Madonna di San Sisto speaks of the struggle of latter generations to produce even an adequate copy, let alone an original work of comparable significance. More generally, Holmes’s aside draws upon the still-commonplace belief that the aesthetic capacities of one era may simply be inferior to those of another.
This belief implicates a profound and persistent set of questions in the arts: Has artistic expression progressed or regressed over time, or is it improper to speak of the aesthetic value of artistic expression in any but synchronic terms?
Has it all been downhill since Shakespeare or Beethoven or Rembrandt, or are Stoppard and Schoenberg and Van Gogh as valuable in their own incommensurable ways, each enriching a timeless tradition, an “eternal present”?
Underlying these questions are a host of more fundamental questions. Is the mere accumulation of artistic expression over time a form of progress, or, as in science, must progress involve the supersession or at least the refinement of previous achievements? More fundamental still is the “axiological” question: How can a standard be established to evaluate aesthetic works in the context of their own time and place, let alone across time and place?
What true foundation is there for aesthetic judgment—if not, by implication, for any form of judgment?
Since Bleistein, the intellectual property case law has refused explicitly to engage any of these questions, and intellectual property law commentary has largely sought to avoid them as well.
Confronted with an aesthetic issue, even the strongest copyright judges invariably cite Bleistein and wash their hands of the problem of aesthetic judgment.
“We recognize that in aesthetics there are no standards,” asserted Judge Hand,
while Judge Posner has demurred on the basis that “judges can make fools of themselves pronouncing on aesthetic matters.”
This is remarkable for at least two reasons. First, we have long claimed and still claim that intellectual property law’s guiding purpose is to promote progress. As the Supreme Court asserted in Mazer v. Stein, copyright law in particular grants economic incentives to authors in the form of intellectual property rights “to afford greater encouragement to the production of literary [or artistic] works of lasting benefit to the world.”
In thus justifying copyright protection, we make no distinction between aesthetic and nonaesthetic works; we do not say that we grant intellectual property rights in nonaesthetic works to promote progress and in aesthetic works to do something else. Rather, despite the precise wording of the Intellectual Property Clause, our purpose in both cases is professedly the same. This would seem to call for some minimal inquiry into the nature of aesthetic progress. Second, much of intellectual property law commentary, particularly from the copyleft, seeks some form of qualitative progress in the production or consumption of aesthetic expression.
Oftentimes, the same commentators who accept the orthodoxy that judges should not engage in aesthetic judgment nevertheless argue—as this Article does—that the law must be reformed in one way or another to promote “better” aesthetic expression, be that expression noncommercial, or appropriationist, or simply more diverse.
Such commentary is ultimately anything but aesthetically neutral, nor should it be.
The “problem” of aesthetic progress in intellectual property law, as elsewhere, is that we appear to lack any foundation for establishing what constitutes progress in the aesthetic—because, as is conventionally thought, “there are no standards.”
This Part briefly surveys, in section I.A, the contentious origins of the concept in early-Enlightenment Europe. Section I.B speculates that the Framers declined to reference the fine arts in the Progress Clause in an effort to shield intellectual property law from the problem of aesthetic progress—and, furthermore, to shield the pursuit of aesthetic progress from intellectual property law. Section I.C turns from the past to the present. It focuses on an American pragmatist vision of aesthetic progress that emerged in the works of John Dewey, too late, in the decades following Bleistein. As we will see in later Parts, Holmes came close to establishing a distinctively pragmatic reconciliation with the problem of aesthetic progress in Bleistein and in American copyright law, but he then decisively rejected it.
A. The Origins of the Concept of Aesthetic Progress
The story of the concept of aesthetic progress begins with a curious controversy of the seventeenth century that raged on and off into the eighteenth: the so-called Querelle or “Battle between the Ancients and the Moderns.”
Proponents of the Ancients asserted that classical Greek and Roman arts and sciences remained superior to those of contemporary Europe; proponents of the Moderns—and of modernity—asserted the opposite.
The battle lines of the Querelle were largely responsible for breaking the premodern “unity of the arts” and generating the distinctions among the categories of “science” and the “useful arts,” in which contemporary Europe was indisputably superior, and the “fine arts,” in which Europe was at best only arguably superior.
As a measure of the fitness of the category it identified, the term “fine arts” spread rapidly through European thought in the mideighteenth century.
The formation of the special category of the fine arts, which were unconstrained by the imperatives of utility and subject only to the judgment of the imagination rather than reason, is principally responsible for the formation of the category of the aesthetic.
The very concept of the aesthetic was formed within the question of progress, as an exceptional category distinguished by its resistance to the concept of progress as then generally understood.
Yet notwithstanding this resistance, many at the time ultimately professed a belief in the superiority of the modern fine arts and in the importance of their continuing progression.
This was more than merely a matter of bragging rights. Linking aesthetics with politics, commentators believed that the progress of the fine arts promised to promote the overall progress of civic virtue and good government.
An open question was how the “the refinements of Government” might promote in turn the “refinements of Art” so that the two might go forward “hand in hand.”
As George Turnbull wrote in his well-known Treatise on Ancient Painting, “The Progress of the Arts and Sciences . . . depend[s] greatly on the Care of Society to encourage, assist, and promote them . . . .”
The belief that the fine arts, civic virtue, and good government could all mutually progress together, each promoting the others, was especially appealing to many early-republic Americans because it harmonized so thoroughly with their emerging cultural nationalism. The then-influential principle of translatio studii—that the center of learning moves ever westward—compelled in many the conviction that America would eventually emerge as the country “where the best of all the arts and sciences would flourish.”
B. The Mystery of the Progress Clause
Given the eighteenth-century belief that government could promote aesthetic cultivation and aesthetic progress, and that this progress could both improve the civic conditions of a society and bring renown to a nation, it should not be surprising that both James Madison and Charles Pinckney proposed language for the Intellectual Property Clause that would have encompassed the fine arts.
Madison proposed the power “[t]o secure to literary authors their copy rights for a limited time” as well as the powers “[t]o establish a University,” “[t]o secure to the inventors of useful machines and implements the benefits thereof for a limited time,” and “[t]o encourage, by proper premiums and provisions, the advancement of useful knowledge and discoveries.”
Pinckney went further. In addition to proposing the powers “[t]o secure to authors exclusive rights for a certain time” and “[t]o grant patents for useful inventions,” he proposed the power “[t]o establish seminaries for the promotion of literature and the arts & sciences.”
Yet nothing from the time indicates who was responsible for the phrasing that ultimately established Congress’s power “[t]o promote the Progress of Science and useful Arts,”
which was adopted without debate on September 5, 1787, in the waning days of the Federal Convention.
The mystery is all the more compelling because if the status of the fine arts simply was not a concern of the Framers at the time (i.e., if, distracted by weightier issues, they simply did not care one way or the other), then they would very likely have used the conventional phrase “arts and sciences,” as the state copyright statutes had.
Their exclusion of the fine arts from the language of the Progress Clause appears to have been a deliberate act.
British practice of the time offers no explanation. To be sure, not until the Fine Arts Copyright Act of 1862 did Great Britain provide statutory copyright protection to paintings.
Yet by 1787, the British had extended statutory protection to certain other fine arts, such as poetry, novels, and music,
and it is hard to imagine that the Framers were concerned about the special case of paintings. Furthermore, the English story was arguably one of inertia; they began from a default position of no protection outside of the common law and slowly added statutory protection over time. The Americans, by contrast, were writing on a clean slate, and their default was, if anything, the general category of “arts and sciences.” They were meanwhile exposed to numerous English acts promulgated for the “encouragement” of various forms of fine art.
For the Framers affirmatively to exclude any reference to the fine arts seems to require something more.
Perhaps this added motivation came from a competing view of the fine arts in early-republic America: the view that they were at best useless and at worst corrupting of virtue and religious faith. One commentator of the time, Benjamin Henry Latrobe, captured this alternative view succinctly when he observed that “our national prejudices are unfavorable to the fine arts.”
As John Adams conceded in various letters to Abigail Adams, the fine arts were mere “bagatelles introduced by time and luxury in change [sic] for the great qualities and hardy, manly virtues of the human heart”;
they could “inform the Understanding, or refine the Taste,”
but they could also “seduce, betray, deceive, deprave, corrupt, and debauch.”
Many of the founding generation were particularly suspicious of sentimental novels,
whose deleterious effects were understood to be especially harmful to their main readership, American women.
Indeed, as much of the above suggests, the fine arts, like the aesthetic more generally, comprised a gendered domain. Notwithstanding the common view that taste fostered virtue, the Framers may have had little desire that a constitutional provision be seen to declare among its purposes the promotion of the progress of “books of mere amusement.”
It may not be surprising, then, that the Framers appear to have inscribed into the founding provision of American intellectual property law a dichotomy between the masculine “Science and useful Arts,” privileged and worthy of constitutional mention, and the feminine fine arts, supplementary and unworthy—a dichotomy which survives, incidentally, in the current colloquial distinction between “hard IP” and “soft IP.”
A third and the most compelling (and perhaps obvious) explanation for the Framers’ exclusion of the fine arts from the Progress Clause stems from what this Article has been calling the problem of aesthetic progress. The Framers undoubtedly recognized that the deliberate pursuit of progress requires judgment about what constitutes progress and a foundation for that judgment. By the late eighteenth century, the realms of “Science and useful Arts” had developed well-accepted, positive, and seemingly objective standards of judgment, standards that Congress and courts could rely on to limit the reach of monopoly rights to those “Writings” and “Discoveries” the creation of which did indeed promote scientific and technological progress. But the realm of the aesthetic was different. Even those like Hume who posited a “universal” or objective standard of taste nevertheless typically believed that few were expert enough to judge the merit of aesthetic expression.
Other commentators rejected an objective standard of aesthetic judgment and, in the de gustibus tradition, reasoned that one simply could not reason about the aesthetic.
The Framers likely included the Progress Clause both to justify and to limit in some way the extraordinary grant of monopoly rights provided for by the Exclusive Rights Clause. As a justification for monopoly rights in works of the fine arts, the invocation of aesthetic progress would have been noncontroversial. But as a limitation on those rights, so that only aesthetically progressive works would qualify, the invocation of aesthetic progress would have been highly problematic. Despite their faith in the progress of the fine arts in general and in the importance of this progress to the cultivation of civic virtue, the Framers may have concluded that given the vagaries of taste, there were no acceptable standards of judgment that the law could employ to pursue aesthetic progress, and in any case, the state might abuse those standards to the detriment of the progress of the fine arts and of civil society. To be sure, the Framers could have called for short-term monopoly rights in all newly created aesthetic works regardless of their aesthetic merit, but this the Framers were apparently not willing to do, at least not in the Constitution. The overriding imperative of the Intellectual Property Clause—and the explicit defense of its special grant of monopoly rights—was the promotion of progress. As between promoting progress and protecting all aesthetic works regardless of progress, the Framers chose the former and excluded the fine arts from the Progress Clause.
In essence, then, the Framers likely sought in the strange wording of the Intellectual Property Clause to evade the problem of aesthetic progress. Yet the Framers quite clearly did so in vain. The fact is that since Bleistein we have largely ignored the precise wording of the Progress Clause and assumed that it applies to the fine arts, sometimes through the term “Science,”
sometimes through the term “useful Arts,”
usually without explaining how.
We are thus stuck with the aesthetic and a commitment to aesthetic progress and should seek to make the best of it, but instead, we have so far made the worst of it. Before turning to Bleistein, however, and the better to understand the choices that Holmes made in his decision, it is worthwhile to consider a contemporary approach to aesthetic progress, one that may offer some hint of how copyright law could have done—and almost did—better.
C. A Pragmatist Vision of Aesthetic Progress
In the wake of Marcel Duchamp, the present-day reader may find the Battle between the Ancients and the Moderns to be more or less comical and the more general idea of aesthetic progress to be more or less bizarre. We are accustomed now not to the idea of the progress of the “fine arts” but to the possibility of their exhaustion.
The overriding eclecticism of twentieth- and twenty-first-century art, with its cacophony of radical breaks, irreverent appropriations, and ever finer differences that quickly dissolve into indifference,
has arguably resulted, as a historical matter, in an extreme “contemporaneity of the non-contemporaneous,”
“serv[ing] to make all stylistic means equally accessible.”
The result, as Peter Bürger has described it, is that “no movement in the arts today can legitimately claim to be historically more advanced as art than any other.”
But it is nevertheless crucial to recognize that a rejection of the idea of artistic progress, that is, of progress in the fine arts, need not necessarily entail a rejection of the idea of aesthetic progress.
Indeed, the rejection of the former may very well open up conceptual space for the acceptance and promotion of the latter. This is because the artistic and the aesthetic need not and should not be understood as equivalent categories; they are related, rather, as part and whole—if not as exception and rule. Recognizing and moving beyond this fundamental distinction enables a better, more relevant, and more democratic vision of how intellectual property law might help to promote progress in the aesthetic, which this section seeks briefly to set out.
This vision draws inspiration from American pragmatist aesthetics, particularly as developed by John Dewey and more recently by Richard Shusterman.
A number of themes of pragmatist aesthetics will prove useful for our purposes. First, pragmatist aesthetics focuses on the aesthetic experience of “non-art”
objects, practices, and phenomena, rather than on the connoisseurship of “mummified museum art.”
It is fundamentally opposed to the notion, often associated with the Kantian tradition of aesthetics, that aesthetic experience ideally consists only of the disinterested contemplation of a preferably “autonomous”
Instead, pragmatist aesthetics celebrates the immediacy of everyday aesthetic experience—in Dewey’s words, the experience of “the fire-engine rushing by,”
of “him who sees how the tense grace of the ball-player infects the onlooking crowd,”
or in Shusterman’s more contemporary reference, the experience of the “creative virtuosity” of appropriationist hip-hop.
It thus urges a movement beyond the “compartmental conception of fine art”
that divides the “official arts”
from the “popular arts.”
It seeks to group all arts, all practice, along a single continuum, all to “recover the continuity of [a]esthetic experience with normal processes of living.”
Second, and related, pragmatist aesthetics urges—as Holmes did in Bleistein, though apparently for different reasons—a rejection of the distinction between aesthetic experience and the useful arts. Dewey admitted in 1934 that “[t]he division between fine and useful art has many supporters,”
but he asserted that this “customary distinction is based simply on acceptance of certain existing social conditions,”
which his meliorist philosophy sought to change. The process of labor, Dewey claimed, could be intrinsically aesthetic, in the sense of providing a “complete experience . . . intensely and concentratedly felt.”
But industrialization and consumerism had rendered much of labor and its output “anesthetic”:
The story of the severance and final sharp opposition of the useful and the fine is the history of that industrial development through which so much of production has become a form of postponed living and so much of consumption a superimposed enjoyment of the fruits of the labor of others.
The result, declared Dewey, is that “the conditions that create the gulf which exists generally between producer and consumer in modern society operate to create also a chasm between ordinary and aesthetic experience.”
A third theme of pragmatist aesthetics, and the most important for our purposes, follows from its rejection of the Kantian tradition and of the distinction between “museum art” and the useful arts. Pragmatist aesthetics asserts that the overriding value of the aesthetic is found not in objects but in practice, in human action and interaction.
It is found not in inert “art products,”
which “exist externally and physically . . . apart from human experience,”
but in the dynamic experience of perceiving and creating aesthetic phenomena.
For Dewey, the perception of an aesthetic work required an appreciation of the individual, human choices that led to its production.
Indeed, the perceiver must actively recreate these choices: “Without an act of recreation the object is not perceived as a work of art. The artist selected, simplified, clarified, abridged and condensed according to his interest. The beholder must go through these operations according to his point of view and interest.”
These three themes underlie a pragmatist vision of aesthetic progress distinct from what might be called the standard accumulationist account. This standard account distinguishes among scientific, technological, and aesthetic progress but applies to all of them the same basic accumulationist framework. It holds that scientific progress consists of the accumulation over time of positive knowledge that supersedes, refines, or supplements previous knowledge. Technological progress relatedly consists of the development over time of ever more efficient technical means to given ends. Both scientific and technological progress are unidirectional or ratchet-like in nature and may be measured objectively. The standard account recognizes that aesthetic progress, by contrast, does not necessarily consist of the supersession or refinement of what has come before—the works of Picasso, for example, do not somehow represent a replacement for or improvement upon the cave paintings of Chauvet-Pont-d’Arc Cave. Nevertheless, aesthetic progress consists of the accumulation over time of ever more artistic achievements or great works, though, in accordance with the de gustibus maxim, their relative merit cannot be objectively assessed. Thus, while a strong accumulationist model of progress is typically applied to scientific-technological progress, in which the goal is to accumulate ever-better scientific and technological achievements, a weak accumulationist model is typically applied to aesthetic progress. In the latter, the focus is not on better works but simply on more works. The weak accumulationist account of aesthetic progress retreats to the quantitative in an effort to disengage from the qualitative.
Very much in contrast to these accumulationist accounts, pragmatist aesthetics recommends a vision of aesthetic progress that focuses not on the stockpiling over time of fixed, archivable works but rather on the quality of ephemeral aesthetic experience in the present. In this sense, like the turn-of-the-century aesthetic-education movement,
pragmatist aesthetics measures aesthetic progress (or regress) largely by the extent of popular, democratic participation in aesthetic practice. Aesthetic progress is thus crucially different from scientific-technological progress. Enhanced popular participation in scientific and technological research itself is not typically thought to constitute progress in those fields unless this participation would itself help to produce even greater discoveries and inventions. Instead, the standard view is that the production of scientific and technological advances proceeds most efficiently when there is no redundancy of research and development.
By contrast, it is conventional to observe that the process of aesthetic creation is more than merely an instrumental means to some separate end that is the sole object of value. It is not mere “drudgery” but rather “could only prove purposive (be a success) as play, i.e. as occupation which is agreeable on its own account.”
Aesthetic play has intrinsic value—as a source of pleasure, of moral and political cultivation, of imaginative freedom and self-actualization—even when it does not ultimately result in the production of an aesthetic work.
Indeed, it may generate as much social welfare, if not more, than any objects eventually produced. In its emphasis on the popular, the experiential, and the intrinsic value of aesthetic labor, pragmatist aesthetics thus supports a notion of aesthetic progress that privileges active aesthetic work over objectified aesthetic works, everyday aesthetic practice over timeless aesthetic achievements, and seeks not so much more artworks, however fine, but more artists, fine or otherwise.
In many respects this may seem a utopian vision far afield from the realities of copyright law. And yet, though this pragmatist vision came too late for Bleistein, its development, especially in recent decades in the work of Shusterman, has arrived right on schedule for the present day Internet, a network of massively distributed authorship perfectly suited to the pragmatist aesthetic vision of popular aesthetic practice. Following his philosophical hero Dewey, Richard Rorty developed in the late twentieth century what was essentially a vision of long-term aesthetic progress. In Rorty’s view, a new “poeticized culture”
is taking shape in the modern world, one which seeks “redemption” not in religion or reason but in imagination, in the aesthetic.
In this culture, the individual continually seeks out and adapts new vocabularies and metaphors, new modes of “imaginative redescription” of her circumstances, the better to develop her self, or in the vocabulary of Bleistein’s time, her “personality.” Rorty’s vision of an aestheticized culture is certainly open to a variety of criticisms, but it should at least be celebrated for its emphasis on the importance to the everyday individual of aesthetic engagement, aesthetic practice, and aesthetic play, in the form of the active assimilation, appropriation, and creative recombination of aesthetic expression. And more importantly, it recognizes that the goal of aesthetic progress, as of aesthetic practice itself, is not any kind of endpoint, any kind of “attainment of perfection.”
It is rather the process itself that is the purpose of the activity.
Holmes, of course, could not have known of the kinds of cultural technologies that would arrive a century after Bleistein, nor could he have anticipated the implications of these technologies for American copyright law and for the constitutional command that it promote progress, both scientific and aesthetic. He was responding in 1903 to altogether different technological conditions and “felt necessities of the time.”
But the themes of pragmatist aesthetics were no less relevant to the technological and cultural conditions in which he wrote. In opposition to an increasingly powerful commercial society, the early-twentieth-century aesthetic-education movement sought to operationalize many of the ideas found in pragmatist aesthetics.
More significantly, Holmes had the benefit of a nineteenth-century tradition of American thinking that would inform much of the spirit of twentieth-century pragmatist aesthetics. An exceedingly learned individual, Holmes was undoubtedly familiar with this tradition of American romantic and transcendentalist thought. As we will see, he spoke of it and through it in Bleistein—or more specifically, in one part of Bleistein.
II. Personality, Progress, and the Misreading of Bleistein
“‘I fired off a decision upholding the cause of law and art and deciding that a poster for a circus representing décolletés and fat legged ballet girls could be copyrighted. Harlan, that stout old Kentuckian, not exactly an esthete, dissented for high art.’”
So wrote Holmes soon after completing his Bleistein opinion.
Holmes’s epistolary tone was irreverent, even derisive. And who can blame him? The facts of Bleistein were perhaps trivial. As Diane Zimmerman recounts in her wonderfully detailed history of the case, George Bleistein was the president of the Courier Company, a printing company based in Buffalo that developed and reprinted, among much else, circus advertisements.
Courier claimed copyright in three posters it had produced to advertise a travelling circus, the Great Wallace Shows.
The posters depicted, respectively, the bicycle act of the “Renowned Stirk Family,” the circus’s “Grand Spectacular Ballet” (making it “The Highest Class Circus in the World”), and the “Classic, Chaste and Culminating Living Triumphs of Imitative Art,” which consisted of performers whitened to represent statues and adopting various poses portraying mythological incidents (“Landing of Columbus,” “Appollo [sic] and the Muses,” etc.).
Donaldson Lithographing Company of Newport, Kentucky, copied the images in Courier’s posters in Donaldson’s advertising for a different circus. Bleistein and Courier’s other partners sued.
Courier itself wished to reuse the images in advertising for other circuses at some point in the future.
Donaldson argued, among other things, that the posters did not qualify as “pictorial illustrations or works connected with the fine arts” under the terms of the copyright statute,
and that even if they did, extending copyright protection to them was unconstitutional under the Progress Clause because it covered only “Science and the useful Arts.”
The district court had ruled in Donaldson’s favor on the statutory argument.
The Sixth Circuit Court of Appeals had affirmed on the statutory argument as informed by the constitutional argument.
The Supreme Court reversed.
These facts, this litigation history, and Holmes’s brief, breezy opinion mask the extraordinary tensions at work in the case and the fateful nature of Holmes’s resolution of them. For all of our citations to it in the case law and commentary, we have failed to appreciate the true significance of Bleistein because we have long misinterpreted the opinion. This is not surprising. Holmes’s opinion is characteristically compact, elliptical, and aphoristic; most readers encounter it only in aggressively edited casebook versions. Furthermore, so effectively did Holmes both affirm and nullify the progress requirement that most scholars have forgotten that it played any role in the case or the copyright law of the time.
According to the standard misreading of Bleistein, Holmes reasoned that (1) judges should not judge aesthetic merit, and as a result, (2) the originality requirement in copyright law must be set very low, so low that nearly any uncopied work should be able to meet it.
This misreading is found throughout our scholarship
and survives even in the Nimmer treatise.
More scholarly versions of the standard misreading go further. They assert that Bleistein’s very low standard of originality disproves the proposition that literary romanticism had any real influence on American copyright law. As Professor Oren Bracha has written in an influential and important article, “Copyright’s minimalist threshold originality requirement is but a mockery of the romantic vision of the author as an individual spirit who creates ex nihilo meritorious intellectual works.”
But as this Part seeks to show, Holmes did not reason in Bleistein that judges’ obligation to remain aesthetically neutral necessitated a low originality standard. He did not in any way retreat to Bleistein’s “personality” standard of originality because of the problem of aesthetic judgment. On the contrary, personality stood on its own in Bleistein, separate from the issue of aesthetic judgment, and not as a last resort but as something of paramount value. As understood within the tradition specifically of American literary romanticism and transcendentalism, the broad egalitarian inclusiveness of Bleistein’s personality standard was its great virtue. Holmes’s affirmative invocation of personality was arguably the high point of American romanticism’s influence on our copyright law and laid a foundation for the institution of a pragmatist vision of aesthetic progress.
But if, in Holmes’s reasoning, judges’ obligation to remain aesthetically neutral did not necessitate a low standard of originality, it did apparently necessitate something else: a market definition of aesthetic progress. Here was the path of Holmes’s actual retreat in Bleistein, one that represented a betrayal—a true “mockery”—of the American romantic tradition that he invoked only paragraphs earlier in his treatment of the originality requirement.
As we will see, Holmes held, in effect, that a work has merit and thus meets the progress requirement not because someone was willing to make the work and invest one’s personality in it, but rather because someone else is willing to pay for it. The work is valuable not because of its intrinsic value to its producer but because of its exchange value on the open market.
Holmes’s forceful invocation of individual “personality” and then, only paragraphs later, his equally forceful rejection of it for the market constituted the originating moment of modern American copyright law. Under the rubric of “romantic authorship,” copyright commentary has long argued that the law’s “exaltation of authorship” has driven the expansion of the law.
But after Bleistein, the story of romantic authorship was little more than an occasional sideshow. Instead, it has been the exaltation—indeed, the “fetishization”
—of the work, of the intellectual commodity, that has driven the expansion of copyright law. After Bleistein, the law finally coalesced around the “commercial value” of works, creative products, aesthetic objects—and away from the “personality” of work, creative practice, aesthetic subjects.
It is this shift, rather than any supposed concern with the romantic author, that has produced the obtuse sensibility of contemporary copyright law, a sensibility captured most effectively by Professor Jessica Litman when she observed that “we have seemed to think that the Progress of Science is nothing more than a giant warehouse filled with works of authorship.”
Part II aims to defend this reading of Bleistein and its importance. To emphasize the division between Holmes’s treatment of originality and his call for judicial aesthetic neutrality, section II.A seeks to make clear that nineteenth-century courts separately construed the originality and progress requirements for copyright protection, just as Holmes would do in Bleistein. Section II.B then turns in earnest to Holmes’s opinion in Bleistein.
A. The Originality and Progress Rquirements Before Bleistein
It makes sense that Holmes would treat the originality and progress requirements separately in Bleistein. American courts had maintained over the course of the previous century a clear separation between the two requirements. Recent commentary has confused nineteenth-century courts’ treatment of the two requirements,
perhaps in an effort to claim nineteenth-century American originality doctrine as the source of the doctrinal tumult of the time. But the originality requirement was relatively stable in the nineteenth century. The problem was the progress requirement, which forced upon copyright law all the complications of aesthetic judgment and aesthetic progress. Consider first originality.
The originality requirement in nineteenth-century American copyright law was reasonably straightforward and, at least for non-fact-based works,
changed little in the nineteenth century. It consisted essentially of the subrequirements that the work be independently authored rather than copied from another author and that the work contain some minimal creativity.
Of course, complications sometimes arose if the work for which protection was sought was based on a preexisting public domain or copyrighted work. This forced courts, as it still does, to engage in the difficult task of determining what, if anything, is significantly new in the new work.
Complications also arose in new technological contexts, such as photography.
But these complications and the outlier cases they produced (which have arguably been overemphasized in recent scholarship)
did not change the basic originality requirement. At the nineteenth century’s end, with respect to non-fact-based works, the lower courts continued to apply an exceedingly low standard of originality very similar to the one they had applied at the beginning of the century—and to the one courts apply today.
While the originality requirement was relatively stable, the progress requirement was not, primarily because it licensed courts to engage in often highly subjective content-based discrimination. As Eaton Drone attests, courts of the time considered the progress requirement independently of the originality requirement (and also, for Drone, of the “innocence” or public-morals requirement):
When a production meets the requirements of the law as to innocence and originality, the only inquiry relating to its character is, whether it is a material contribution to useful knowledge. This raises the question, whether literary merit, in the common meaning of that expression, is essential to copyright in a composition.
Here, courts did not seek to ensure, as they did with the originality requirement, that a work’s differences from whatever previously existed were minimally creative (i.e., more than “merely formal and shadowy”).
The question of “literary merit”
under the Progress Clause was qualitatively different. It asked whether the work promoted “the Progress of Science.”
Thus, a work such as an illustration for a product label could easily meet the originality requirement but be denied protection on the ground that it did not promote progress. Meanwhile, a work such as an educational textbook could fail to meet the originality requirement (because it was not significantly different from works it copied) but easily pass the progress requirement (because it promoted learning).
Through the course of the nineteenth century, courts repeatedly denied protection to a wide variety of works that, though original, failed to meet the progress requirement.
Recent commentary has incorrectly presented these cases as denying protection on originality grounds.
They did not. Indeed, one of them never mentions originality.
In the 1829 case of Clayton v. Stone, Justice Thompson denied copyright protection to a newspaper’s daily listing of stock prices.
Making no mention in his opinion of the originality requirement,
he instead quoted the Intellectual Property Clause and held:
The act in question was passed in execution of the power here given, and the object, therefore, was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them. They are of a more fixed, permanent and durable character. The term science cannot, with any propriety, be applied to a work of so fluctuating and fugitive a form as that of a newspaper or price-current, the subject-matter of which is daily changing, and is of mere temporary use.
In the 1867 case of Martinetti v. Maguire, the work at issue was rather different but equally as suspect under the Progress Clause.
The district court refused copyright protection to a play that, as the court put it, “panders to a prurient curiosity or an obscene imagination by very questionable exhibitions and attitudes of the female person.”
Though the court belittled the originality of the play, which “consists almost wholly of scenic effects, or representations taken substantially from well-known dramas and operas,” the court ultimately appealed to the pro-gress requirement to deny protection: “The exhibition of such a drama neither ‘promotes the progress of science or useful arts,’ but the contrary. The constitution does not authorize the protection of such productions . . . .”
Finally, in the latter decades of the century, courts routinely denied copyright protection to expression appearing in advertising, product labels, and product catalogues. This line of cases is best represented by Justice Field’s opinion for the Court in the 1891 case Higgins v. Keuffel, which held that the product label at issue, consisting of the phrase “water-proof drawing ink,” could not be protected under copyright law.
Field questioned whether the label met the originality requirement,
but the progress requirement arguably drove the outcome of the case. The Justice gave various examples of simple product labels and explained that
The use of such labels upon those articles has no connection with the progress of science and the useful arts. So a label designating ink in a bottle as “black,” . . . or as possessing any other quality, has nothing to do with such progress. It cannot, therefore, be held by any reasonable argument that the protection of mere labels is within the purpose of the clause in question.
The Seventh Circuit Court of Appeals reasoned similarly in J.L. Mott Iron Works v. Clow, which denied copyright protection to illustrations of bathroom fixtures appearing in various product catalogues.
The court explained that in contrast to the British Parliament, “In this country, under the constitution, the power lodged with congress is not unlimited, but is restricted to the promotion of the progress of science and useful arts.”
In the court’s view, the simple illustrations failed to meet either the originality or the progress requirement.
Cases that denied protection to advertising instantiated a remarkable irony, culminating in Bleistein. With the 1874 amendment to the Copyright Act of 1870, courts no longer needed to rely on the Constitution—and specifically on a reading of the Progress Clause as including the fine arts—to deny protection to works that in their view failed to promote the progress of the fine arts.
Instead, what the Constitution arguably did not provide, a statute finally did. The 1874 amendment explicitly established statutory protection for “works connected with the fine arts.”
This explicit statutory reference to the fine arts, a term the statute left undefined, produced strange results. One court in 1896 went so far as to deny copyright protection on the basis that the illustrations at issue “are not offered to the public as illustrations or works connected with the fine arts, but are adjuncts simply to a publication connected with a useful art.”
By the turn of the century, the very constitutional clause whose reference to “Science and the useful Arts” might have counseled against extending protection to fine art was instead understood to empower courts to apply a strict definition of fine art.
The thinking was that only aesthetic works that could satisfy this strict definition would “promote the Progress.”
By 1903, then, one phrase in the Progress Clause—“Science and useful Arts”—had been entirely denatured, but the other phrase—“to promote the Progress”—still seemed to carry real force. And unlike the originality requirement, which called upon courts to engage in only a minimal inquiry into the creativity of the work, the progress requirement opened the door to the difficult question of what constitutes progress in the realm of the aesthetic.
Bleistein thus presented a number of difficult issues to the Court. With respect to the progress requirement in particular, the case called upon the Court to decide three fundamental questions: (1) May Congress provide copyright protection to works of the fine arts under its Intellectual Property Clause power; if so, (2) does the Progress Clause limit Congress to offering protection only to those works of the fine arts that promote “Progress”; and if so, (3) do the circus posters promote “Progress”?
What was required to set American copyright law on a proper course in the new century was a clear, careful analysis of each of these issues. Enter Justice Holmes.
B. The Originality and Progress Requirements in Bleistein
In what follows, section II.B.2 examines Holmes’s consideration of whether the Intellectual Property Clause covered the fine arts and shows how he essentially bullied his way through to reach the right result. Section II.B.3 focuses on the originality requirement and locates Holmes’s invocation of personality within the tradition of nineteenth-century American literary romanticism. Section II.B.4 turns to Bleistein’s famous call for judicial aesthetic neutrality and its embrace of “commercial value” as the only workable measure of aesthetic merit under the progress requirement. First, however, to highlight the tensions in Holmes’s own thinking about the issues before him in the case, section II.B.1 reviews an extraordinary speech that he delivered months before the Court handed down Bleistein. Apparently unremarked by previous scholarship on the Bleistein case, the speech reads like the antithesis of—and perhaps like atonement for—Holmes’s opinion in Bleistein.
1. Holmes the Aesthete. — Donaldson, the alleged infringer, could have been forgiven for thinking in the winter of 1903 that it had a good chance of winning the vote of at least one Supreme Court Justice. On October 20, 1902, Holmes delivered a brief speech at Northwestern Law School that spoke in defense, as Justice Harlan would in his Bleistein dissent, of “high art.”
The speech anticipated many of the themes and much of the rhetoric of his opinion for the Court.
In the four-paragraph speech, parts of which deserve to be quoted here at some length, Holmes rather flamboyantly allied himself with the then-fashionable aestheticist view that, as Oscar Wilde put it in its most extreme form, “all art is quite useless.”
One can only imagine what the law students assembled at the dedication of a new law school building must have thought when the Justice began: “Nature has but one judgment on wrong conduct—if you can call that a judgment which seemingly has no reference to conduct as such—the judgment of death.”
And then, within a few sentences, he observed: “[E]very joy that gives to life its inspiration consists in an excursion towards death, although wisely stopping short of its goal.”
And finally, art:
The justification of art is not that it offers prizes to those who succeed in the economic struggle, to those who in an economic sense have produced the most, and that thus by indirection it increases the supply of wine and oil. The justification is in art itself, whatever its economic effect. It gratifies an appetite which in some noble spirits is stronger than the appetite for food. The principle might be pressed even further and be found to furnish art with one of its laws. For it might be said, as I often have said, and as I have been gratified to find elaborated by that true poet Coventry Patmore, that one of the grounds of aesthetic pleasure is waste.
Assuming, as he would in Bleistein, his intended audience’s familiarity with John Ruskin’s art criticism (and in particular with Ruskin’s The Nature of Gothic)
Holmes then elaborated on this theme:
Who does not know how his delight has been increased to find some treasure of carving upon a mediaeval cathedral in a back alley—to see that the artist has been generous as well as great, and has not confined his best to the places where it could be seen to most advantage?
A notoriously ill-defined ism, nineteenth-century British aestheticism consisted of a wide variety of artists and critics who held in common, if anything, a belief in the paramount importance of art and aesthetic experience to a properly lived life.
Many aestheticists, including Ruskin, would likely have rejected Wilde’s view that “all art is quite useless”
and possibly also Holmes’s view that “one of the grounds of aesthetic pleasure is waste.”
All, however, would have seen in the aestheticist emphasis on art a vehicle for the rejection and overcoming of what they perceived to be the cold utilitarianism of the leading thought of the time, the brute functionalism of industrial capitalism, and the soulless empiricism of modern science. Many would furthermore have seen the development of the aesthetic sense as the foundation for, or at least as interdependent with, the development of moral and civic virtue. Linda Dowling has persuasively argued that, in its origins, aestheticist thought pursued a “project of aesthetic democracy”
that identified in the properly cultivated common aesthetic sense of the people a legitimizing basis for popular democratic sovereignty.
But as Dowling has also shown, many aestheticists eventually abandoned this project as a failure.
The tension between aestheticist aspiration and the reality of popular taste proved unsustainable.
Ruskin, for example, had begun his career with the intention “to spread the love and knowledge of art among all classes.”
By the end, he came to believe that those not belonging to “the higher ranks of life” could not appreciate art, “incomprehensible as it must always be to the mass of men.”
It was clearly within the more optimistic strains of the aestheticist tradition that Holmes placed himself at Northwestern. In language that would echo in Bleistein, he declared that “man as he is” may have material “bodily needs,” but his “uneconomic” ideals still took precedence:
I only mean to insist on the importance of the uneconomic to man as he actually feels today . . . . [T]he ideals which burn in the center of our hearts . . . are categorical imperatives. They hold their own against hunger and thirst; they scorn to be classed as mere indirect supports of our bodily needs, which rather they defy; and our friends the economists would do well to take account of them . . . if they are to deal with man as he is.
The university nurtures these ideals, the individual cultivation of which Holmes equated with the process of individual artistic effort:
Mr. Ruskin’s first rule for learning to draw, you will remember, was, Be born with genius. It is the first rule for everything else. If a man is adequate in native force, he probably will be happy in the deepest sense, whatever his fate. But we must not undervalue effort, even if it is the lesser half. And the opening which a university is sure to offer to all the idealizing tendencies—which, I am not afraid to say, it ought to offer to the romantic side of life—makes it above all other institutions the conservator of the vestal fire.
Holmes acknowledged, de gustibus, that not all could be cultivated to share his aestheticist view:
Our tastes are finalities, and it has been recognized since the days of Rome that there is not much use in disputing about them. If some professor should proclaim that what he wanted was a strictly economic world, I should see no more use in debating with him than I do in arguing with those who despise the ideals which we owe to war.
Yet Holmes optimistically concluded that the majority were with him. They aspired above all to aesthetic experience, even themselves to engage, “if they can,” in aesthetic creation:
But most men at present are on the university side. They want to be told stories and to go to the play. They want to understand and, if they can, to paint pictures, and to write poems, whether the food product is greater in the long run because of them or not.
It must have been a beautiful speech, and all the more effective in that a man of Holmes’s authority and experience would profess to the students before him such an optimistic, perhaps even naïve, belief in the salutary effects of art and idealism. Holmes insisted upon not just the independence of the aesthetic from the economic but also the overriding primacy of aesthetic experience over any other basic human need. And where other critics might have spoken primarily, if not exclusively, of connoisseurship, of aesthetic consumption, Holmes spoke to his audience of aesthetic production. The highest form of aesthetic experience, Holmes implied, is found in aesthetic creation itself—indeed, in even the mere “effort” at aesthetic creation that remains subpar (“even if it is the lesser half”).
The speech was arguably Holmes at his best, which makes it all the stranger—and more frustrating—that he would so thoroughly abandon all of its “idealizing tendencies” four months later in Bleistein.
2. The “Useful Arts” and the “Fine Arts.” — To get an immediate sense of the almost schizophrenic quality of Holmes in Bleistein versus Holmes at Northwestern, consider his treatment in his Bleistein opinion of the main constitutional issue in the case. As mentioned above, Donaldson had argued that the Progress Clause empowers Congress to provide intellectual property rights only in works of “Science and the useful Arts” and thus that the copyright statute’s reference to “fine art” should not be read to protect Bleistein’s posters or, if it should be so read, that the statutory provision was unconstitutional.
The entirety of Holmes’s “mention” of the issue consisted of the following:
We shall do no more than mention the suggestion that painting and engraving, unless for a mechanical end, are not among the useful arts, the progress of which Congress is empowered by the Constitution to promote. The Constitution does not limit the useful to that which satisfies immediate bodily needs.
Thus Holmes swept aside centuries of conventional wisdom, of which he could not have been unaware, that distinguished between “useful arts” and “fine arts”—and to do so, he cited a Supreme Court opinion that made no effort to interpret the mysterious language of the Progress Clause but that did involve, of all people, Oscar Wilde.
He also abandoned the aestheticist conviction he professed at Northwestern that art is not useful and that aesthetic experience is by definition wasteful. Admittedly, the “bodily needs” of the Northwestern speech reappeared intact in Bleistein as a foil against which the aesthetic could be defined, but Holmes then dissolved the aesthetic back into the category of the useful.
The result was that Bleistein would stand for the proposition, among others, that the fine arts somehow fell within the scope of the Intellectual Property Clause as “useful Arts.” Courts have understandably avoided the issue ever since.
Holmes’s treatment of the main statutory question in Bleistein was equally as abrupt and even more acutely in tension with his Northwestern pose. The issue, to recall, was whether Bleistein’s posters qualified as “pictorial illustrations or works connected with the fine arts” under the 1874 amendment to the Copyright Act of 1870.
Holmes’s analysis bordered on the fatuous. He betrayed no knowledge of the Copyright Office’s decades of complaints about a flood of registrations for advertising.
Instead, he forcefully held that even if the statutory phrase were read conjunctively to apply only to those “pictorial illustrations” that were “connected with the fine arts,” the Bleistein posters met this requirement:
Certainly works are not the less connected with the fine arts because their pictorial quality attracts the crowd, and therefore gives them a real use—if use means to increase trade and to help to make money. A picture is none the less a picture, and none the less a subject of copyright that it is used for an advertisement. And if pictures may be used to advertise soap, or the theatre, or monthly magazines, as they are, they may be used to advertise a circus. Of course, the ballet is as legitimate a subject for illustration as any other. A rule cannot be laid down that would excommunicate the paintings of Degas.
For the Holmes of Bleistein, a “real use” is “to increase trade and to help to make money.”
Holmes the aesthete makes an appearance only at the end, protesting that the law not “excommunicate” Degas, unquestionably an expositor of the fine arts—who was said to disdain Monet for his supposed commercialism.
But what should Holmes have done here? Should he have held that because the circus posters at issue were not “fine art,” they could not receive copyright protection, even if they attracted the “crowd?” The answer is that regardless of what Holmes’s view might have been as to what copyright law should protect, the “crowd,” through Congress, had spoken, and it had decided that copyright law would extend only to pictorial works of the fine arts.
The advertisements were not fine art by even a broad definition of the term, and the Bleistein Court should not have granted them copyright protection. Present-day accounts of Bleistein strangely overlook the statutory context of Holmes’s ruling. They celebrate his declaration later in the opinion that judges should not impose their own aesthetic standards when deciding copyright cases, but they omit the fact that this is precisely what he did in his highly tendentious statutory interpretation.
Though Holmes was arguably a strong exponent of American pragmatist philosophy,
the Holmes of Bleistein expounded a brand of that philosophy most susceptible to the caricature, much despised by Dewey, that pragmatism was “the philosophy of the American business-man.”
The particular manner in which Holmes merged the aesthetic into the useful in Bleistein got exactly backward what Dewey would try to accomplish three decades later in Art as Experience.
There, as we have seen, Dewey went to great lengths to attack the traditional distinction between fine and useful art and also between the connoisseur and the “crowd”—though in this, he was much more generous than Holmes.
But in his emphatic meliorism, Dewey did so primarily to assert that the world of utility he saw around him, the world of “postponed living,” could be made aesthetic.
The difference between Holmes in 1903 and Dewey in 1934 was a difference in priority, in privileging. Dewey sought to raise the useful up to the level of the aesthetic; Holmes sought to reduce the aesthetic down to the level of the useful. This difference in emphasis set the tone for much, but not all, of the remainder of the opinion.
3. Bleistein’s Originality Requirement and American Literary Romanticism. — If, on the constitutional and statutory issues in Bleistein, Holmes seemed to revel in the coarse commercialism of his stance, his treatment of the originality requirement in copyright law brought a shift in rhetoric to an entirely different vein of the American cultural tradition. To appreciate the full meaning of Bleistein’s restatement of the originality requirement, it is necessary to redirect a sometimes misguided debate in American copyright law concerning the influence on it of literary romanticism. This will allow us, in Part IV, to properly consider how Holmes’s restatement of originality in terms of “personality” may form the foundation for certain reforms of copyright law.
Copyright commentary has long debated the influence of literary romanticism on modern American copyright law and, in particular, on the law’s conception of the author. Drawing upon the work of literary scholars Martha Woodmansee
and Mark Rose,
leading commentators such as Jessica Litman,
and James Boyle
argued in the 1990s that copyright owners had justified the expansion of copyright rights by instilling in copyright law a conception of authorship drawn from romanticism’s purported ideal type of the heroic solitary genius.
This romantic author figured as an autarchic individual who creates unique and heterodox creative works ex nihilo, or at least out of her own “singular inner being.”
As Jaszi put it, “British and American copyright presents myriad reflections”
of “the full-blown romantic conception of ‘authorship’”
—though, to his credit, he admitted that “they sometimes remind one of images in fun-house mirrors.”
More recent commentary has sustained
and substantially refined
the romantic-authorship thesis. Other scholars, however, have strongly criticized the core historical and theoretical claims of this romantic-author school of copyright commentary,
not least because of Bleistein.
Bleistein has figured prominently in the debate because of a still oft-quoted passage in the opinion that has significantly influenced the development of American copyright law—though perhaps not in the way one might have hoped. The Bleistein defendants had argued that the posters could not qualify for protection because, as Holmes put it, “the pictures represent actual groups—visible things.”
This might appear to be a strange argument, but it proceeded from the Supreme Court’s dictum twenty years earlier in Sarony that in the case of photographs, the mere “transferring . . . of the visible representation of some existing object” might not qualify for copyright protection.
The argument also anticipated the Supreme Court’s holding ninety years later in Feist that authors cannot claim copyright in facts because authors do not create facts but rather merely “copy [facts] from the world around them.”
[E]ven if they had been drawn from the life, that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy. The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible which is one man’s alone. That something he may copyright unless there is a restriction in the words of the act.
This passage carried into twentieth-century copyright law the low originality requirement at the core of nineteenth-century copyright law. If dicta in The Trade-Mark Cases had muddled things by suggesting that trademark law was different from copyright law because the former “require[d] no fancy or imagination, no genius, no laborious thought,”
it was now clear that copyright law never required these qualities either.
Critics of the romantic-author school have fastened upon Bleistein’s—and Feist’s—nominal originality standard as evidence that modern American copyright law has never been in thrall to any kind of romantic notion of authorship.
Chief among these critics is Bracha, who identifies in the history of the originality requirement a “full-fledged paradox”
that culminated in Bleistein. In the lead up to Bleistein and with the opinion itself, “[o]riginality, in the romantic sense, became the foundation of copyright law,”
yet Bleistein reduced “copyright’s originality requirement to almost nothing”
by giving it “a restrictive and technical meaning” that “has little to do with the romantic vision.”
In an excellent review of the issue, Professor Erlend Lavik has stated the problem more pointedly: “If copyright law has adopted an idea of originality premised on notions of poetic creativity as a gift bestowed on a few geniuses, then surely we would expect it to be exceedingly difficult to obtain copyright protection, yet the problem is precisely the opposite: it is granted remarkably easily.”
What has been strangely missing from the debate over the romantic-authorship thesis, aside from much of the nuance of Woodmansee’s and Rose’s initial historical claims, is any appreciation of the crucial differences between English and other strains of European romanticism, on the one hand, and American romanticism, on the other. With Bleistein, American copyright law fully embraced a romantic conception of the author, but it embraced a specifically American romantic conception of the author that is altogether different from any stereotyped notion of heroic daemonic genius that legal scholars have associated with literary romanticism in general. Meanwhile, the “paradox” that Bracha identifies in which American copyright law glorifies originality at the same time that the law describes originality as commonplace and easily achieved is no paradox at all, nor is it a distorted image in “fun-house mirrors.”
On the contrary, it is, like Holmes’s invocation of “[p]ersonality” in Bleistein, a completely unsurprising and straightforward reflection of the “Democratic Vistas”
of nineteenth-century American literary romanticism, particularly as inflected by American transcendentalism.
Holmes’s restatement of the originality requirement in terms of “personality” did more than merely carry forward the nineteenth century’s low standard. It infused that standard with new meaning, or at least made explicit themes latent in nineteenth-century case law and commentary. Consider Holmes’s declaration that “[t]he copy is the personal reaction of an individual upon nature. Personality always contains something unique.”
Well-informed readers of the Bleistein opinion in 1903 would have immediately recognized this claim as an article of American democratic intellectual faith, one that emerged out of American transcendentalism—and Emerson’s call for “an original relation to the universe”
—and that by the turn of the century bordered on cliché.
Readers might also have recognized in Holmes’s invocation of personality the influence of Walt Whitman, whom Holmes admired and with whom he corresponded.
Whitman, the author of such characteristic lines as “O climates, labors! O good and evil! O death! / O you strong with iron and wood! O Personality!,”
repeatedly described himself as, for example, the “bard of personality”
or the “Chanter of Personality, outlining a history yet to be,/ I project the ideal man, the American of the future.”
Finally, consider Dewey’s possibly even more rhapsodic invocation of personality in his 1888 essay The Ethics of Democracy, in which he celebrated “the highest ethical idea which humanity has yet reached—the idea that personality is the one thing of permanent and abiding worth, and that in every human individual there lies personality.”
The emphasis on personality in turn-of-the-century American culture also took more prosaic—and pessimistic—forms. In his statement that personality “expresses its singularity even in handwriting,”
Holmes called upon a conventional belief of the time, made clear in the first, lengthy chapter of the 1899 treatise Ames on Forgery entitled “Personality in Handwriting,”
that the details of personality were revealed in the interpretation of handwriting.
And as Professor Warren Susman has explained in an essay of enormous influence on American historiography, the many popular self-help manuals of the time stressed the need for the democratic common man to develop “personality” if only to preserve his identity as against modern mass society, or, in the most commonly used expression of the time, the “crowd.”
In conformity with American thinking of the time, then, Holmes’s invocation of personality resulted not in a “restrictive and technical”
originality requirement but rather in one that was broadly inclusive and emphatically liberal, egalitarian, and humanistic—and American.
Holmes’s statement that “a very modest grade of art has in it something irreducible, which is one man’s alone,”
calls to mind Ralph Waldo Emerson’s insistence on “the infinitude of the private man”;
“every man has within him some[thing] really divine.”
This “something,” declared Emerson, is the true source of originality: “And what is Originality? It is being, being one’s self, and reporting accurately what we see and are.”
Holmes also conveyed the continued receptiveness of American romantic aesthetics to an older—essentially preromantic—conception of individual genius, one well-exemplified in Samuel Johnson’s declaration that “every Man has his genius”
or in Whitman’s celebration of the “genius of the United States” as adhering “most in the common people.”
Much of the commentary both advocating and criticizing the romantic-authorship school of copyright commentary proceeds from a stock notion of the romantic “genius” as a revolutionary prodigy, a Promethean “creator ex nihilo of utterly new things.”
Admittedly, there are elements of the romantic tradition, including in America, to support this notion. But Holmes’s formulation of the originality requirement in Bleistein invoked a different, distinctively American and distinctively democratic—and more particularly, Emersonian
—image of everyday, common genius.
Commentators have lamented Bleistein’s highly permissive originality standard as a regrettable but necessary compromise with the reality that judges cannot reliably judge aesthetic merit, thus rendering it a standard perhaps not worthy of an ideal copyright law.
Yet a closer reading of Bleistein better informed by the opinion’s cultural context urges a different judgment: that its nominal originality requirement is not to be regretted but to be celebrated.
The standard emerged out of an individualistic and egalitarian cultural tradition that glorified “personality” and that did so in part because it was understood to adhere in every human being. For thinkers such as Dewey in 1888, furthermore, individual personality formed the basis of democratic legitimacy, and the ultimate goal of democratic society should be to provide the optimal conditions for its cultivation.
In essence, in its formulation of the originality requirement, Bleistein embraced a leveling conception of aesthetic creation, a conception of the common person as an author and the author as a common person. Critics that argue that the originality standard as formulated by Bleistein “has little to do with the romantic vision”
are mistaken; it has everything to do with a romantic vision as seen by Americans of the time, if not still.
4. Bleistein’s Progress Requirement and “Commercial Value.” — One wonders how American copyright law might have evolved differently had Holmes put down his pen after he invested the originality standard—and American copyright law—with the dignity of democratic “personality.” But he had one more issue before him that required a response. Donaldson argued to the Court that the circus advertisements could not qualify for protection because they lacked sufficient aesthetic merit “to promote the Progress of Science and the useful Arts.”
The Sixth Circuit agreed, and so did Justices Harlan and McKenna as the sole basis for their dissenting votes. Harlan quoted at length from the heart of the Sixth Circuit’s opinion and then grandly concluded: “The clause of the Constitution giving Congress power to promote the progress of science and useful arts, by securing for limited terms to authors and inventors the exclusive right to their respective works and discoveries, does not, as I think, embrace a mere advertisement of a circus.”
Harlan garbled the constitutional language—“Times,” not “terms”; “Writings,” not “works”—but his point was clear enough.
Having just held that the fine arts fell within the scope of the Progress Clause, Holmes now had to face the consequences. He had to reconcile in some way the aesthetic with the Progress Clause’s reference to progress. His effort to do so exposed a facet of his own personality altogether different from the one that so warmly glowed in his invocation of human personality just paragraphs earlier. Holmes’s treatment of the progress requirement in Bleistein brought out his “bettabilitarian”
stance that there are no “ultimates,” no absolute, incontrovertible standards.
Perhaps relatedly, it also brought out his unapologetic elitism, his dark fatalism with respect to popular democracy,
and, like the aestheticists he sought to emulate at Northwestern, his ultimate disappointment with the aesthetic sense of the “crowd.”
Here in full is Holmes’s famous statement of judicial aesthetic neutrality, which he wrote, it must be emphasized, in response to the dissent’s argument that the posters lacked sufficient merit to satisfy the progress requirement:
It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value—it would be bold to say that they have not an aesthetic and educational value—and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs’ rights.
To find that the works at issue satisfied the progress requirement, Holmes quite sensibly declined to apply his own aesthetic judgment to the circus posters. He did so, however, not on the ground that judges should never engage in aesthetic judgment but rather on the ground that he, like most jurists, was “trained only to the law”
and thus unqualified and prone to error.
Caught in the middle, such judges might improperly deny protection to both very high and very low culture. Where once he rhapsodized about democratic personality, now Holmes presented an image of radical genius that is unintelligible, even “repulsive” to a public still behind the times, and a condescending image of popular taste “less educated than the judge.”
Instead, to find evidence that the works promoted progress, Holmes retreated to the market’s judgment of their worth or otherwise to the infringer’s judgment of their worth. If the works have “commercial value” or are subject to infringement in the “desire to reproduce them without regard to the plaintiffs’ rights,”
then the works have sufficient merit—“their worth and their success”
—to promote progress. In pursuing this course, Holmes stood up for popular taste—“the taste of any public is not to be treated with contempt”—but made an altogether gratuitous show of doing so reluctantly: “It is an ultimate fact for the moment, whatever may be our hopes for a change.”
This is a remarkable shift in tone from his celebration of the “irreducible” uniqueness of the individual personality.
Like many intellectuals—and aestheticists—of the time,
Holmes appears to have had great respect for the individual but something bordering on contempt for the “crowd.” Yet consistent with his belief, stated in The Common Law, that “[t]he first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong,”
he deferred to popular judgment as expressed in the market as evidence of aesthetic merit.
For all of his claims of aesthetic neutrality, however, Holmes’s particular solution to the problem of aesthetic progress was anything but aesthetically neutral. In deferring to market taste as the standard of merit, he imposed on copyright law one particular view of the value of the aesthetic. This view holds that the realm of the aesthetic yields value primarily, if not exclusively, in the form of aesthetic objects. This market definition of aesthetic progress ignores what cannot be commodified and sold, such as one’s own engagement in aesthetic play. Instead, it focuses on the value of the aesthetic only after a work has been completed and introduced to others.
Bleistein’s essentially industrial view of the purpose of aesthetic production has underpinned the accumulationist approach that intellectual property law has taken to aesthetic progress ever since.
Yet so apparently effective was Holmes’s presentation of his aesthetic neutrality thesis and so thoroughly has it influenced the subsequent course of American copyright law that it may be difficult to imagine that he had any reasonable alternative other than deferring to market demand. Indeed, a third way—beyond judges themselves assessing aesthetic merit or judges simply deferring to consumer demand—may seem even more elusive in a consumer society in which, for most, deliberate aesthetic experience occurs purely in consumption, in leisure, rather than in production, in labor.
But there was of course an alternative approach put squarely in front of Holmes by the very opinion he was writing, and it was based on the value of human “personality.” In avoiding judgment of aesthetic merit, he could just as easily have found—so thin was his reasoning—that a work’s aesthetic “worth”
was shown not by the mere fact that someone was willing to pay for it or that someone other than the author was willing to copy it but rather by the mere fact that someone was willing to make the work, either for sale or otherwise, and that in making it, someone had invested one’s personality in the work. Regardless of the work’s value to others as a commodity, Holmes could have found merit in the aesthetic pleasure—and aesthetic cultivation—that attended the act of aesthetic creation and further merit in the existence of whatever is “unique” and “irreducible” and “one man’s alone” in the work created.
If this alternative approach seems unduly sentimental, even precious (or European),
consider that Holmes had just invoked all of this four paragraphs earlier in Bleistein as the very basis of the copyright property right.
Importantly, as he indicated at the conclusion of his aesthetic-neutrality paragraph in referring to the preexistence of the property right (“without regard to the plaintiffs’ rights”),
the works’ commercial value did not form the basis of the property right. The property right was instead based on the already-established fact that the works contained personality. Their commercial value simply showed that they met the progress requirement. Holmes thereby explicitly avoided circular reasoning of the “if economic value, then property right” variety—a circularity in which legal protection is based on commercial value, but that commercial value depends on the extent of legal protection.
Instead, Holmes adopted an “if personality, then property right” logic with respect to the originality requirement and an “if economic value, then progress” logic with respect to the progress requirement. But what Holmes could not apparently bring himself to articulate was an “if personality, then progress” logic. The result was that Bleistein separated the basis of copyright rights, personality, from the purpose of granting those rights, progress in the form of “commercial value.”
What compelled Holmes to abjure an “if personality, then progress” logic, the very logic that seemed to animate his Northwestern speech? We cannot know for sure, and it would ultimately be a mistake to search for total coherence in his Bleistein opinion. For all of its brevity, the opinion, to borrow from Whitman, is large and contains multitudes.
The tensions within Holmes’s own thinking no doubt grew out of and reflected larger tensions in turn-of-the-century America. These were captured perhaps most effectively at the time by Henry Adams.
What seems clear is that Holmes’s opinion was ultimately much more of the century to come, the world of Adams’s “dynamo”
and mass-market commercial capitalism, than of the century that had just passed. Though Holmes could still speak stirringly of the “irreducible”
in the transcendental individual, he apparently would not conceive of progress in terms of that individual. Rather, progress expressed itself through social forces and, most significant among these, market forces. Holmes’s innate elitism and distrust of the common people ultimately prevailed in Bleistein over any aversion his aestheticism might have held toward the market. This would be of interest only to Holmes’s biographers but for its effect even now on our copyright law.
III. Bleistein’s Aftermath
In the decades immediately following Bleistein, it might have been appropriate to ask which aspect of Bleistein would ultimately prevail: its emphasis on personality as the basis of copyright protection or its emphasis on commercial value as the purpose of copyright protection. The relation between these two sides of Bleistein was particularly unstable. One side was driven by the imperatives of romanticism and the aesthetic. The other was driven by the imperatives of industrial capitalism—the very imperatives against which romanticism and the aesthetic at least in part defined themselves. It was thus perhaps inevitable that after Bleistein, this division would eventually erode so that either personality or commercial value would come to dominate both the basis and purpose of copyright property rights and drive the evolution of the law.
There can be little doubt that in the post-Bleistein synthesis in which we find ourselves, Bleistein’s division between the basis and purpose of the law has indeed collapsed, with commercial value now defining both and personality more or less forgotten or seen at best as having always been an empty or meaningless category. Many factors likely contributed to this outcome. Most notably, the rise of collective, corporate forms of authorship and closely related changes in work-for-hire doctrine made Holmes’s concept of personality untenable with respect to an increasing proportion of copyrightable works.
If corporate works were not exactly created by a “crowd,” neither were they created by a singular individual. They could not so readily claim the mantle of “irreducible” personality.
Furthermore, courts were already shifting their focus toward commercial value as the primary concern of the law, and the “work” had taken on a life of its own,
so much so that for some courts, it seemed that it was not the author’s labor that constituted commercial value but the work itself that did so.
Bleistein both expressed and substantially advanced these general trends in copyright law. Indeed, it arguably brought them to their full realization, but not for the reason conventionally given. Commercial value displaced personality not because Bleistein set any kind of “technical and anemic” originality standard that “emasculate[d]” the originality doctrine.
As I have tried to show, understood in its context, Holmes’s humanistic, egalitarian notion of personality was instead a quite vital, even passionate, affirmative vision of authorship. Criticisms that read the opinion as a negative retreat arguably only further the dominance of commercial value by casting it as the only meaningful concept at hand.
Instead, the case law and commentary after Bleistein suggest a perhaps somewhat mundane explanation for why Bleistein performed such a decisive role in shifting the law to commercial value. The explanation is that Holmes’s reasoning—or more accurately, his swaggering rhetoric,
his “cryptic peacocking”
—failed to make clear the distinction the opinion sought to draw between its separate analyses of the originality requirement and the progress requirement. Courts of the time were likely unaware of the lower courts’ opinions in the case and the nineteenth-century case law that informed those opinions, and were perhaps unconcerned by the brief dissent. They cannot be blamed that they began to misread and misapply Holmes’s opinion in exactly the way that current courts and scholars still do. Furthermore, the progress requirement declined in significance through the course of the twentieth century, to the point where it now plays no appreciable role in our law. For that reason, courts and commentators could not have been expected to recognize, without clarification in the opinion itself, that the aesthetic-neutrality paragraph and its emphasis on “commercial value” addressed the progress requirement.
The result was that Bleistein’s discussion of originality was merged with its call for judicial aesthetic neutrality. In essence, Bleistein made two separate holdings. First, to meet the originality requirement, copyrightable expression must (a) not be copied from another author and (b) contain the author’s personality.
Second, to meet the progress requirement, copyrightable expression must (c) contain economic value.
But courts applied Bleistein to hold simply that to merit copyright protection an expression must (a) not be copied from another author and (c) contain economic value. As the progress requirement was forgotten, Bleistein came to stand for the proposition simply that uncopied commercial value could meet the originality requirement.
For evidence of the misreading of Bleistein just described, consider, for example, the 1939 case of Vitaphone Corp. v. Hutchinson Amusement Co.
The Vitaphone court adopted the now-standard practice of reading Bleistein’s invocation of aesthetic neutrality and commercial value as bearing on the question of originality. The court merged various quotations from Holmes’s opinion:
[I]t must be admitted [that the photoplays at issue] showed originality. As the Court said in Bleistein v. Donaldson Lithographing Co.: “The least pretentious picture has more originality in it than directories and the like, which may be copyrighted. It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations. Yet if they command the interest of any public, they have a commercial value,—it would be bold to say that they have not an aesthetic and educational value,—and the taste of any public is not to be treated with contempt.”
In the 1941 case of Stuff v. La Budde Feed & Grain Co., the court similarly quoted from Bleistein’s discussion of “commercial value” and “their worth and their success” to find that the work’s market value proved “sufficient novelty” to trigger protection: “In the instant case, although the picture of the idiotic looking boy is almost repulsive to look at, the drawing contained sufficient novelty to attract and hold the attention of many people.”
For a more recent and succinct example, the court in the 2000 case of SHL Imaging, Inc. v. Artisan House, Inc. also quoted from both parts of Bleistein in assessing the originality of the works at issue: “Rather, [Holmes] noted that courts may reject protection for works within ‘the narrowest and most obvious limits’ and that works are protectible when there is a ‘very modest grade of art.’”
Even the Supreme Court has arguably skewed the distinction between Bleistein’s originality standard and its discussion of aesthetic neutrality. In its Feist decision, the Court explained that some works, even if uncopied, may not qualify as original: “There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”
To support this proposition, the Court cited Bleistein’s aesthetic-neutrality paragraph: “See generally Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (referring to ‘the narrowest and most obvious limits’).”
In sum, Holmes’s opinion was highly stylized but not especially analytic; it was beautiful to read, but it did not encourage disciplined application by lower courts.
Its more easily digestible economistic rhetoric of commercial value supplanted its more abstruse humanistic rhetoric of personality. Already in decline, the status of the authorial laborer collapsed. Already in ascendance, the status of the copyrighted “work” reached its apex. Holmes’s opinion thus helped to set in motion the “if economic value, then property rights” circularity that continues to undermine our copyright law.
This was the very circularity that Holmes had carefully avoided in his opinion by asserting personality as the basis of the property right. Bleistein leaned toward an accumulationist approach to aesthetic progress by setting commercial value as the index of progress. Courts’ misreading of Bleistein and the circularity this misreading abetted only intensified the law’s commitment to accumulation. Now both the basis and purpose of copyright protection was uncopied commercial value. Personality no longer exerted a moderating influence on the circularity by introducing into the equation a value other than uncopied exchange value—the kind of moderating influence discussed in Part IV.
Bleistein did, however, touch upon the issue known as the “sweat of the brow” basis for copyright protection,
and this might have presented some limiting principle external to the “if value, then right” circularity. Immediately after his invocation of “personality,” Holmes continued:
If there is a restriction [in the Copyright Act on the protectability of expression] it is not to be found in the limited pretensions of these particular works. The least pretentious picture has more originality in it than directories and the like, which may be copyrighted. The amount of training required for humbler efforts than those before us is well indicated by Ruskin. “If any young person, after being taught what is, in polite circles, called ‘drawing,’ will try to copy the commonest piece of real work,—suppose a lithograph on the title page of a new opera air, or a woodcut in the cheapest illustrated newspaper of the day,—they will find themselves entirely beaten.”
The skill of the illustrator of the Bleistein posters thus easily exceeded a “very modest grade of art”
and supported the originality of his expression.
But another irony of the legacy of the Bleistein case—and probably the clearest expression of the overriding logic of commodity fetishism
in our law—is that in the one instance in which the law still employs Bleistein’s emphasis on personality, it does so only to suppress any concern with the laborer’s “sweat of the brow.”
Holmes mentioned in passing that “directories and the like . . . may be copyrighted,”
and he was certainly correct that in the nineteenth and early twentieth centuries, copyright law protected facts compiled in such media as maps or telephone books in light of the enormous amount of labor that went into their collection.
But this rule has since changed. In Feist, the Court held that an original selection and arrangement of facts may be copyrighted but the facts themselves are not copyrightable.
In making this holding, the Court cited Bleistein exactly once, in passing, as quoted above.
Perhaps the Court dismissed Bleistein because it explicitly stated in dicta a rule contrary to that stated in Feist—or perhaps the Court was wary of the minefield of Holmes’s undisciplined prose. In any case, the Court instead relied heavily on The Trade-Mark Cases and Sarony.
But as Jaszi has argued, Holmes’s emphasis on the personality of the author suffuses Feist.
The Court explained that only an intellectual work that originates in authorial subjectivity—only the “fruits of intellectual labor,”
“of intellectual production, of thought, and conception”
—can qualify for copyright protection, and it so qualifies because any uncopied expression of subjectivity will apparently always be original; as Bleistein put it, “[p]ersonality always contains something unique.”
Mere mechanistic grunt work, by contrast, in the nature of the “industrious collection” of facts—or the “slavish copying” of the Bridgeman Art Library case
—does not rise to the level of personality and the products of such labor are not recognized by the law. Here alone in copyright law personality trumps commercial value, but only to devalue something even less important than “intellectual labor,” the nonintellectual laborer’s merely “slavish” “sweat of the brow.”
The demise of the “sweat of the brow” doctrine provides strong evidence of the more general collapse in the status of authorial labor in our copyright law after Bleistein. Now authorial labor is merely the means of producing intellectual works and of establishing who owns those works, and if we can accomplish the same amount of output with less labor, so much the better. Judge Easterbrook captured this sensibility quite effectively in a 1985 opinion:
The copyright laws protect the work, not the amount of effort expended. . . . The input of time is irrelevant. A photograph may be copyrighted, although it is the work of an instant and its significance may be accidental. In 14 hours Mozart could write a piano concerto, J.S. Bach a cantata, or Dickens a week’s installment of Bleak House. The Laffer Curve, an economic graph prominent in political debates, appeared on the back of a napkin after dinner, the work of a minute. All of these are copyrightable.
This sensibility has little real interest in the “input” of authorship—other than that it be made more efficient—and has come even to celebrate inadvertent, unconscious acts of authorship. For example, in the well-known 1951 case of Alfred Bell & Co. v. Catalda Fine Arts, Inc., the Second Circuit cited Bleistein but only as approving the proposition that a work need not be the product of skill to qualify for copyright protection.
Alfred Bell’s deskilling of authorial labor went further. Whereas a romantic author might once have been understood to be inspired as if by a bolt of lightning, now the metaphor was different:
There is evidence that they were not intended to, and did not, imitate the paintings they reproduced. But even if their substantial departures from the paintings were inadvertent, the copyrights would be valid. A copyist’s bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations. Having hit upon such a variation unintentionally, the “author” may adopt it as his and copyright it.
Alfred Bell’s “clap of thunder” dramatically devalues both personality and labor, and why shouldn’t it?
Its version of copyright law is concerned purely with the work produced and with the production of more such works regardless of the means of production, which might as well all be thunderclaps (or perhaps machine intelligence).
Authorial labor is “drudgery,”
a necessary evil, a requisite of no value in itself that is only worthwhile because of the ends it produces.
Copyright law’s sole focus on ends, on commodified “commercial value,” appears in other areas of the law. For a compelling example, consider transformativeness doctrine in fair use, which is often thought to be one of the more aesthetically progressive areas of copyright doctrine, concerned as it often is with artistic appropriation. But in adopting the transformativeness approach to fair use in Campbell v. Acuff-Rose Music, the Supreme Court declared that “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works,” because such works, rather than “merely ‘supersed[ing] the objects’ of the original creation . . . instead add something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
The Court construed the Progress Clause (as amended) to focus on the end product of transformative conduct: “transformative works,” “new expression, meaning, or message.”
The Court never considered the value of the defendant’s transformative conduct in itself: specifically, the pleasure and edification a second-generation author might derive from such conduct even if she never ultimately fixes and publishes a transformative work. The Court’s silence on the issue is of course perfectly understandable. It was never argued in the case and is conventionally understood to have no bearing whatsoever on the fair use inquiry.
In pulling the fine arts into the Intellectual Property Clause and then responding to the problem of aesthetic progress with a commercial standard of merit, Bleistein ultimately gave rise to an argument altogether in tune with one vein of thinking in the present day, which is prone to assess all modes of progress in quantitative, accumulationist terms—in terms, that is, of “more.” More copyright protection will generate more expression, goes the argument, and some of this expression, we trust, will promote aesthetic progress, be that progress in the form of more pleasingly diverse expression, more pleasingly beautiful expression, or simply more pleasing expression.
Courts often rehearse this argument.
The Eleventh Circuit framed it most starkly: “This broad [copyright] protection encourages authors to create more works and thereby advance the progress of science and useful arts.”
This accumulationist approach arguably began with Bleistein. Though Holmes could not help hiding his distaste for the works before him in the case, his opinion nevertheless relied heavily on the view that by adopting a baseline of near-total propertization of anything uncopied that anyone else might want to copy, we will incentivize everything regardless of merit. And while this will produce more transitory bad, it will also produce more “works of lasting benefit to the world.”
This argument works especially well in the world of Bleistein. Bleistein’s posters were based on “nature,” on the “original”; “they had been drawn from the life.”
Donaldson’s copies were identical.
The facts of Bleistein thus never called upon Holmes to consider the extent to which Bleistein’s illustrator drew on previous authors’ works or the extent to which Donaldson’s illustrator should have been able to draw on the work of Bleistein. The accumulationist approach generally declines to concentrate on such issues. This is because in its essential outlines, it assumes purely independent creation. For all of its economism, it embraces at least one aspect of romantic aesthetics: It assumes that works are drawn from “nature,” not from other works.
The work expresses the “singularity” of the author, “which is one man’s alone,”
not the degree to which it is based on another personality’s work. Everything that is needed to progress can be found in the commons, not in the property of others. Accumulationism makes the facile assumption that the source of “more” is the inexhaustible creativity of the autonomous profit-seeking agent and some exogenous infinite commons rather than the market itself.
IV. pOvercoming Bleistein
As this Article has shown, Holmes declined in Bleistein to hold that personality, which satisfied the originality requirement, could also satisfy the progress requirement.
His resulting need for a separate analysis of the progress requirement prompted his call for aesthetic neutrality and deferral to the market. As we have also seen, courts and commentators merged his deferral to the market with his discussion of the originality requirement.
This helped to create the conditions for exchange value to become both the basis and purpose of copyright protection and, more generally, for copyright law to adopt a commodity-oriented, accumulationist conception of aesthetic progress. This Part seeks to consider the implications of an alternative approach to aesthetic progress: the pragmatist aesthetic approach that engages in aesthetic judgment and assesses aesthetic progress according to the simple propositions that aesthetic labor in itself is its own reward and that the facilitation of more such labor represents progress.
Section IV.A first takes up the issue of aesthetic judgment in copyright law. Section IV.B then turns to aesthetic progress.
A. Personality and Aesthetic Judgment
Copyright commentary has long observed that despite Bleistein’s admonition against doing so, judges in copyright cases are sometimes compelled to determine the existence or degree of aesthetic merit in the works before them.
While some forms of contemporary art present considerable challenges in this regard,
these cases are quite rare, as are cases under the Visual Artists Rights Act.
More often, courts appear to engage in aesthetic discrimination when they assess close questions under the originality requirement
or in connection with the concepttual separability test that applies to “useful articles.”
The irony is that the particular terms of Holmes’s call for aesthetic neutrality did much to introduce into the originality analysis and even more so into the conceptual separability analysis the many problems of aesthetic judgment. Bleistein’s deferral to market opinion opened the Pandora’s box of aesthetic judgment, which a reliance on personality would have kept closed.
Consider first originality. As courts and commentators merged Holmes’s deferral to the market with his discussion of the originality requirement, this allowed into the assessment of originality considerations other than personality, such as whether the market perceived the work as possessing uncopied commercial value and, more significantly, whether others perceived the work as “art.”
The focus on personality was lost. This is highly regrettable. At least in the context of the originality analysis, judges should remain aesthetically neutral not because they may introduce their own bias into aesthetic judgment, or because aesthetic judgment is inevitably subjective, or even because they are “persons trained only to the law” and thus lack expertise.
Rather, they should remain aesthetically neutral because the only significant issue in the originality inquiry should be whether the work contains its creator’s personality. Citing Bleistein’s originality analysis, the Alfred Bell court wrote in an oft-quoted passage: “No matter how poor artistically the ‘author’s’ addition, it is enough if it be his own.”
For too long we have read such a summary of the originality requirement as a kind of grudging concession to the reality that aesthetic judgment is excessively contingent and that we must therefore retreat to the lowest common denominator among works of more or less aesthetic merit. But to read such a statement in the original spirit of Bleistein’s originality analysis would be to understand it as an affirmation of the overriding importance that our copyright law should ascribe to any expression of individual subjectivity regardless of its commercial value or status as an art object.
Bleistein’s call for aesthetic neutrality and deference to the market has also arguably weakened the role of personality in the conceptual separability analysis. The current leading test of conceptual separability is set forth in Brandir International, Inc. v. Cascade Pacific Lumber Co.
The Brandir test asks whether the claimed “design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences.”
This test intensifies the core concern of Holmes’s analysis of the originality requirement: human subjectivity. In the context of useful articles, Brandir offers copyright protection only to design elements that are expressions of pure subjectivity unconstrained by functional, technical considerations. In its close attention to subjectivity, the Brandir test is continuous with copyright law’s emphasis on originality. The problem is that Brandir is not the only test courts have used—or at least proposed—for conceptual separability. Many alternative tests insist on engaging the endlessly mystifying question of what is and is not art, with several seeking to defer to social understandings of what constitutes art.
They do so notwithstanding the fact that the drafters of the statutory section underlying the conceptual separability test deliberately omitted any reference to “art.”
Consistent with the commodity-oriented, accumulationist approach, these alternative tests focus not on personality but on the status (as art or non-art) of the object produced. Given trends in the art world, this inquiry is hopeless. This is why a more recent leading application of the Brandir test makes more sense. In Pivot Point International, Inc. v. Charlene Products, Inc., the Seventh Circuit focused on the subjective process by which the designer developed his design and asked whether this process was “unfettered by functional concerns.”
B. Personality and Aesthetic Progress
Bleistein might have made some sense for the consumer society of twentieth-century America, a society in which, for most of its inhabitants, consumption (or religious worship) was the sole source of aesthetic meaning; and production, or labor, was often little more than “anesthetic” drudgery.
Nor did many have much option in this regard. The means of aesthetic production and of the communication of that production were highly centralized. The raw materials of aesthetic production were scarce. In such a society, it might even have made sense to some to conceive of aesthetic progress in essentially aristocratic terms, as consisting simply of more great works, of more archivable excellence and more wings of the museum, since the aesthetic condition of the “crowd” remained intractably hopeless.
To others, like those who committed to the aesthetic-education movement of the early century, industrialism and consumer society finally provided conditions of sufficient abundance that the time had come to democratize aesthetic experience. But even the most optimistic practitioners of such “missionary aestheticism”
recognized that this experience would largely, if not entirely, take the form of passive consumption rather than active production.
The new century has of course brought new technological and cultural conditions far different from those that motivated Bleistein. Like space law in the 1960s
and “cyberlaw” in the 1990s,
the newest wave of “legal futurism”
has taken the form of legal commentary on the advent of post-rarity society,
and 3D printing.
Though the full potential of these technological and cultural developments likely remains quite far off, their implications for aesthetic progress and the law’s role in promoting it are already becoming clear, particularly in the currently existing world of digital user-generated content (UGC). In this world, the means of aesthetic production are nearly costless, and the channels of distribution have been radically decentralized. Users generate this content, much of which is noncommercial, because they enjoy and derive meaning from making it and sharing it.
“Commercial value,” let alone excellence, is rarely the goal of the undertaking any more than it is the goal of a preschool art class.
It is essentially a culture of streaming in the moment rather than of archiving for future consumption. The “more” we are interested in here is more aesthetic practice, more actualizing of “personality,” more active human flourishing and human solidarity, all in the present.
This is why the pragmatist aesthetics of the twentieth century—that arguably arose in part out of that century’s aspirations for its own hoped-for “economy of abundance”
—now makes so much more sense in the twenty-first. At its core, pragmatist aesthetics proposes a different, essentially egalitarian vision of what aesthetic progress entails. It does not judge progress by aesthetic monuments, by the aesthetic equivalent of ever taller buildings. Nor does it judge aesthetic progress by the new “aestheticization of everything,” in which more and more everyday commodities are rendered aesthetically appealing.
The problem in an abundant society, particularly one quickly shifting to automation, is not a lack of opportunities for meaningful aesthetic consumption but a lack of opportunities for meaningful aesthetic production. Pragmatist aesthetics instead judges progress by the extent of popular access to and participation in aesthetic practice
and does so based on an ethical belief in the importance of allowing everyday, common genius to flourish. Our new technological and cultural conditions have begun to make this understanding of aesthetic progress altogether appropriate.
The massive democratization of aesthetic practice that has attended the rise of online UGC shows just how obsolete copyright law’s purely accumulationist approach to aesthetic progress has become. Apologists for the present framework may cite the explosion in works of authorship on the Internet as evidence that the accumulationist approach has indeed produced “more,” but copyright law has hardly incentivized this expression, nor do many of these works have significant intrinsic value other than as outcomes of aesthetic practice and sources for further such practice. Rather, with respect to UGC in particular, copyright law’s role now is largely to suppress democratic aesthetic practice and participation;
its role is to encourage the “crowd” to passively consume rather than actively produce. This is particularly true for what might be termed “superstar works.”
It has been apparent for many years that the copyright system helps to underwrite a cultural star system in which certain works far exceed—on the order of a power-law distribution
—other works in their cultural impact and, if they are made for profit, their profitability.
These works become central to cultural conversation and important sources of shared meaning. They provide crucial raw materials for others to use in their own aesthetic practices.
Copyright law, however, ensures that these works are substantially protected from appropriation and redefinition, from the sort of “imaginative redescription” of which Rorty spoke. For all of its progressiveness, transformativeness doctrine, for the few who can afford it, remains inadequate—and itself focused on accumulation, on ends not means.
Had Bleistein adopted personality as both the basis and purpose of copyright protection, it is likely that the originality requirement would not now be significantly different in practical effect from its current incarnation. Nearly all uncopied expression would qualify for copyright protection. However, the normative effect of placing personality at the center of our copyright law would likely have been profound, so that certain other areas of copyright law might be quite different in practical effect and substantially more in sync with current technology. Regardless, even if Bleistein was a missed opportunity, we can set aside the counterfactual briefly to consider more directly how a law constructed in pursuit of a pragmatist vision of aesthetic progress might differently accommodate these new technological conditions. I consider two general themes.
First, the law would modestly shift its basic balance between incentives and access. If we accept that one component of aesthetic progress is facilitating the activity of second-generation authors because this activity is intrinsically good (regardless of what is produced), then we must shift where we strike the balance in copyright law between property-based incentives to produce aesthetic works and limits on those incentives to allow aesthetic activity by others. The point is that when we worry about this balance between incentives and access in the context of scientific and technological progress, we typically do so only in an effort to ensure that second-generation authors and inventors will be able to create second-generation works that represent further progress. Our goal is ends, not means. Indeed, we would generally prefer less technological labor because we see it as no more than a costly means to the end that is the actual benefit. In the context of the aesthetic, however, we would do well to add to the access-incentives equation the value of aesthetic production in itself, regardless of whether the second-generation works themselves represent some form of additional value over what came before them.
This is not a radical proposal. Copyright law arguably already proceeds along these lines when it grants protection to independently created works, even if identical to already existing works.
More concretely, such a shift toward access in the access-incentives balance would urge a fundamental change in our understanding of the purpose of the transformativeness analysis in the fair use inquiry. Courts would no longer apply the doctrine solely in pursuit of the accumulation of more transformative works dynamically over time. Our goal would also be more transformative practice statically in the present.
This would expand the scope of the doctrine, particularly for noncommercial uses.
When the Acuff-Rose Court decided whether Two Live Crew’s transformation of Roy Orbison’s song should qualify as a transformative use, it considered only whether the end product represented “new expression, meaning, or message,”
and thus a new contribution to Litman’s “giant warehouse”
of works of authorship. The Court did not consider how the act of transformation was itself meaningful to the band members themselves, how it helped to further their own self-actualization, the transformation of their own personalities. This may seem a trivial consideration in the context of professional, for-profit, mass-market artists, and perhaps it is. But it is not at all trivial in the context of the millions of UGC authors who create and share transformative content. Such authors have moved beyond passive reading or even traditional reader response. For them, as it was for Dewey, rewriting is the new reading.
The mindset of a different time, of traditional consumer society, would value transformative labor only to the extent that it produces a transformative work of value to consumers other than the transformative work’s author. But as more and more “consumers” engage in active aesthetic labor, if only because of the value in itself of such labor, transformativeness doctrine should be expanded to facilitate this form of aesthetic progress.
Such a reform could be grounded in the statutory language calling upon courts to evaluate, as part of the fair use analysis, the “purpose and character” of the defendant’s use.
Second, a copyright law committed to aesthetic progress would emphasize much more the nature and significance of the labor that goes into the production of works of authorship. Contrary to conventional wisdom, we need more romantic authorship, not less, but romantic authorship understood in the egalitarian, commonplace American romantic sense in which Holmes used the term “personality.” A copyright law that placed greater emphasis on the common human origins of each work might clarify the extraordinary degree to which new works are based not on thunderclaps or bolts of lightning, or on “nature,” but rather on other preexisting and often copyrighted works, which are themselves products of human labor. Like any other commodity, intellectual works do not emerge ex nihilo but out of the social and intellectual relations of many intellectual laborers. The accumulationist orientation of our current copyright law tends to obscure this fact; if it romanticizes anything, it romanticizes, indeed fetishizes, the “romantic work” rather than the “romantic author.”
The concrete implication of such a change in the sensibility of our copyright law would be a greatly expanded system of moral rights protections and limitations on those protections. The law’s current, quite limited moral rights regime fully expresses the product-oriented rather than process-oriented stance of the law. We currently offer the moral rights of attribution and integrity only to the “author of a work of visual art,” which the Copyright Act defines as any painting, drawing, print, sculpture, or photograph existing in a single copy (where, in the case of a photograph, that copy is signed) or existing in 200 copies or fewer where each copy is signed and consecutively numbered.
The law endows authors with moral rights based not on the nature of their means of production, but only on the nature of the work product that they ultimately produce and publish. It cares little about the personality, the moral “sweat of the brow,” that went into the work provided that the work is limited in its number of copies. The commodity defines the status of the laborer, rather than the laborer the status of the commodity.
A revised regime, by contrast, would extend the attribution right to all works of authorship and impose the attribution duty on all publicly distributed such works. This reform is crucial. Its essential purpose would be to disenchant copyright law of the commodity fetishism—the erasure of authorial labor—that Bleistein did so much to encourage in U.S. law. It would emphasize that cultural production—and culture more generally—does not consist of social relations among works but social relations among people, among personalities, by means of works.
More concretely, particularly in the fair use context, any act of appropriation, any “imaginative redescription,” would trigger the obligation at least to provide the source for any copying that would otherwise constitute infringement and at best to provide the source for any significant copying at all, even of public domain expression and ideas.
Though this is routine practice in the open-source software world,
it may nevertheless seem a quite radical intervention outside of that world. But such a democratized regime of moral rights is consistent with the pursuit of aesthetic progress understood as the pursuit of human personality and human solidarity in the present and across time rather than of more and more seemingly self-generating commodities.
These are obviously only a few very general proposals as to how copyright law might be updated to promote aesthetic progress, and admittedly, given the realities of copyright lawmaking and regulatory capture, perhaps the only concrete modifications that are realizable in the near term relate to the fair use analysis. But in the longer run, the technology of aesthetic production and distribution will continue to evolve over the coming decades, and twentieth-century consumer culture will likely give way to some new cultural mode, be it a “networked society,” a “post-scarcity society,” an “artificial intelligence society,” or indeed Rorty’s “poeticized society.” In these emerging conditions, we would do well to appreciate that our overriding commitment always to increase the gross aesthetic product of the culture in the pursuit of “Progress” no longer makes complete sense and is increasingly counterproductive. Bleistein’s imposition on the aesthetic of a vision of progress grounded in “commercial value” and committed to accumulation has proven to be a significant mistake, which helps us to appreciate how much better off we might have been if the Framers had somehow managed to separate the aesthetic from the Progress Clause—perhaps by excluding from the language of the clause any reference at all to the fine arts.
In his 1794 Letters on the Aesthetic Education of Man, Friedrich Schiller spoke of what he called the “problem of the aesthetic”: “If man is ever to solve that problem of politics in practice, he will have to approach it through the problem of the aesthetic, because it is only through Beauty that man makes his way to freedom.”
Schiller was writing against his severe disappointment with the French Revolution, whose Enlightenment aspirations had by 1794 collapsed into terror. In the Letters, he looked to the cultivation of the aesthetic sense of the individual and the liberation of the individual’s “Spieltrieb,”
or drive toward aesthetic play, as a means to move beyond further such reversals and realize the full promise of the Enlightenment project. Admittedly, European events a century and a half later suggest that Schiller put too much trust in the aesthetic—and in the aestheticization of politics.
But Schiller is certainly not the only modern thinker to seek in the aesthetic a means of coming to terms with the many complications of human “progress”: among them that progress requires standards to determine what constitutes progress; relatedly, that progress in the quantitative, in the scientific and technological, has apparently far outpaced progress in the qualitative, in the ethical and aesthetic; and also relatedly, that progress so often contains within itself the seeds of its own reversal.
Intellectual property law has gained increasing appeal in recent decades because it treats of such matters as the latest high technology, media, entertainment, fashion, art, and branding, all of which are areas that can produce intangible “superstar works” of absolutely enormous economic value and global cultural influence. But of far greater appeal has always been the fact that intellectual property law is the one area of American law explicitly committed to the promotion of “Progress,” and the constitutional language that enforces this commitment writes into its very structure the fundamental division in modern thought between the positive world of the scientific and technological and the decidedly nonpositive world of the aesthetic.
Progress-driven, intellectual property law operates at the very center of modernity and thus shares—as Holmes did in Bleistein—in its tensions and pathologies. At the same time that intellectual property law is emphatically technologically progressive, it can also be socially and culturally reactionary,
and as this Article has sought to show, it can be aesthetically regressive as well. The “giant warehouse”
of intellectual commodities that our copyright law continues to pursue has increasingly taken on the characteristics of an “iron cage.”
The overriding imperative of the pursuit is the accumulation of ever more things. This pursuit has taken on a life of its own, one that has outlived the technological and cultural conditions in which it was born. It is a final, but perhaps fortunate, irony of the story of Bleistein and all that led up to and followed from it that the aesthetic, originally quarantined from the Intellectual Property Clause and its pursuit of progress, may ultimately redeem that pursuit and reorient it toward progress in our understanding of what progress actually should be—and so the stone that the Framers rejected might become the chief cornerstone of our copyright law.