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date: 23 October 2019

The Mirror, the Lamp, and Public Performances

Abstract and Keywords

How courts determine copyright infringement has been the subject of scholarly debate. Where courts fail is in adequately appreciating the richness of a creative work, often reducing the novel, the song, the work to its literal terms. While the need for contextualizing creative works is accepted, the approach is not. This article uses the aesthetic framework of literary critic M.H. Abrams to offer a conceptual framework to contextualizing a work within the legal method for assessing copyright infringement. This framework is applied to the problems of infringement by reproduction and unauthorized public performance. Abrams’ aesthetic categories provide a multivalent approach to copyright law. The article ends with a precatory discussion of the problems of conceptualism in law, whether in the application of economic models or of aesthetic theories.

Keywords: copyright, law & literary theory, economic analysis, conceptualism, legal process

The theory and practice of copyright infringement litigation in the United States has recently come under long-overdue scrutiny. (Balganesh (2016), Said (2015), Samuelson (2013), Lemley (2010).) Whether the case of software or of music, academics and practitioners point to an infringement analysis that is unpredictable for the artistic community engaging in the creation and performance of copyrighted works. This article addresses these concerns by drawing on an important strand of literary theory with application to the treatment of public performance rights.

In order to be successful in a lawsuit for unauthorized copying of her work, a copyright owner must show that the infringer (1) accessed the copyrighted work in creating the infringing work and (2) reproduced original elements from the legally protected work. Evidence of access to the copyrighted work demonstrates that the infringer did not independently create the work but used the owner’s work to make his own. Access, in other words, shows the possibility of copying when combined with identified similarities between the two works. But copyright infringement goes beyond mere copying, or plagiarism. Copyright infringement covers the reproduction of original elements from the work, the unique and personal contributions of the copyright owner. Originality means the work is produced by an author, while copying of original elements means that the infringing work is not the product of an author. Instead, the infringer is not an author at all.

Such a stark description of copyright infringement underscores the aesthetic as well as legal dimensions of copyright law. Copyright litigation polices authorship, protecting creative spirits while identifying the fallen angels of creativity who lack the character to create from their own person. Litigation, also, is not simply about compensating authors for lost sales from pirated copies. Economics may be an afterthought rather than a foundation for copyright litigation. Practical realities, such as cost of litigation, may determine when an owner pursues the litigation option. But the fuel for the process of determining copyright infringement, once a party institutes litigation, is aesthetics.

Support for this last point is found in the standard of “substantial similarity” used by courts in determining whether an infringer has in fact violated an author’s copyright. As with many rules in the law, there are degrees of substantial similarity. Some amount of similarity can be evidence of access. Often there is no direct proof of plagiarism, no videotape showing the infringer lifting portions of the author’s work, no confession, no eyewitness testimony of copying. But if the infringer’s work is strikingly similar to the author’s, there is more than a nod to support the copyright owner’s claim of copying. Furthermore, in determining whether the infringer copies original elements from the author’s work, the court will look to see if the two works are substantially similar. For example, if the two works are identical (as they would be if the infringer used a recording or copying device to create his own work), then substantial similarity exists and copyright infringement is established. If the two works differ, maybe because the infringer made his own contribution, the substantial similarity adopts a mix of quantitative and qualitative analysis to determine if the similarities are substantial to support a finding of infringement. This approach is used to analyze infringement of books, movies, music, artwork, television broadcasts.

Legal process adds important nuances to the substantial similarity standard. Litigation is divided into questions of law and questions of fact, the first being the exclusive provenance of the judge, the second often given to a jury. Substantial similarity is a mixed question of law and fact. The judge addresses the legal question of identifying originality in a work. The judge asks the jury to examine the works and identify points of similarity. The legal standard is applied through the determinations of judge and jury, working together to resolve the legal dispute of whether an infringer copied from an author.

Criticism of copyright infringement stems from the open-endedness of the infringement analysis. Effectively, substantial similarity requires examining and comparing the works with the goal of identifying where the two are the same and where different. Although the approach can be described as analytical and objective, the legal standard seems in practice to be a subjective one, resting on individual aesthetic judgments. Compare the approach to copyright infringement with the treatment in patent and trademark litigation. In determining whether an infringer made an unauthorized copy of the patent owner’s work, the court will look to the claims written by the inventor and approved by the patent office as the standard against which to determine whether the infringer’s invention is identical to the patent owner’s. While far from perfect, patent infringement analysis focuses the court on the objective language of the claim rather than a comparison of two inventions. Similarly, trademark infringement rests on a comparison of the trademark owner’s mark with the infringer’s mark based on whether a consumer could be confused by the two marks in the marketplace. Legal language in patent law and the perspective of the consumer in trademark law contrasts with the potentially unguided and subjective inquiry of copyright law.

Prominent cases illustrate the problems of an ungrounded and unmoored copyright standard. Marvin Gaye’s estate successfully sued Pharrell Williams for infringement in his “Blurred Lines” composition. The jury in that case determined that there were substantial similarities in the melody of the work. Oracle unsuccessfully sued Google for copying several lines of JavaScript in developing its application programming interface (API). But, the federal circuit on appeal held that there was originality in Oracle’s lines of code and therefore was copyright protected. Appropriation artist Richard Prince was found to have infringed some but not other photographs by Patrick Cariou because some of Prince’s works demonstrated his own authorship, while others were works of an infringer. What constitutes authorship, what constitutes copying remains clouded because of the method for determining infringement.

Unpredictability and lack of coherence results from existing copyright standards. More complex cases of copyright infringement exacerbate the concerns. Often infringers not only make unauthorized reproductions of a work but also engage in other activities that violate the rights of a copyright owner. One prominent example is that of public performance. A copyright owner has the exclusive right to make a public performance of a work. Public performance includes the reading of a novel or poem in a bookstore, stage rendition of plays and musicals, showing a movie in a theater, or street performance of a dramatic work or a musical composition. The notion of public performance is closely tied to well-established forums for sharing works. A public stage, a public street, a movie theater are all places where performance of a copyrighted work implicates the public performance right. A home theater, a shower, a private automobile are all places which would not implicate the public performance right. When technology blurs the distinction between private and public places, however, the question of what constitutes public performance arises. Examples include streaming services for movies and music on the Internet and recording services within cable or satellite television. As I discuss below in greater detail, the question of public performance is an aesthetic one, and an appeal to a deeper understanding of aesthetics can provide guidance for what is otherwise an unfocused determination of infringement.

Literary critic M.H. Abrams provides a valuable source for developing an aesthetic understanding of copyright. Professor Abrams describes aesthetic theory in terms that unintentionally echo problems facing courts in copyright cases.

By setting out from and terminating in an appeal to the facts, any good aesthetic theory is, indeed, empirical in method. Its aim, however, is not to establish correlations between facts which will enable us to predict the future by reference to the past, but to establish principles enabling us to justify, order, and clarify our interpretation and appraisal of the aesthetic facts themselves. (p. 4)

A legal theory, a method for analyzing legal claims, must both “appeal to the facts” and “establish principles” that justify, order, and clarify the underlying rights being enforced and vindicated. With respect to copyright, the parallels between Abrams’ appeals to a good aesthetic theory and a workable and satisfying legal theory are salient. To quote further from Abrams:

The criterion [for a good aesthetic theory] is not the scientific verifiability of its single propositions, but the scope, precision, and coherence of the insights that it yields into the proper ties of single works of art and the adequacy with which it accounts for diverse kinds of arts. Such a criterion will, of course, justify not one, but a number of valid theories. (pp. 4–5).

Abrams turns our attention as critic to a specific work of art. Analogously, judge and jury assess a particular work, produced by an alleged infringer in violation of rights in an original work. When judge and jury act effectively as art critics, what is needed is an approach that embraces multiple aesthetic theories and emphasizes the connection between individual works and the creative process. Clark (2004), for example, applies Abrams’ aesthetic categories to analyze responses to art forgeries.

A plea for multiple theories may seem an odd solution to the problem of an open-ended copyright infringement standard. But a call for multiplicity does not mean “anything goes.” Asserting one correct theory, applied to all works of art and all contexts for creation, is more susceptible to claims of subjectivity and arbitrariness. How, for example, do we know that we have settled on the correct theory? Abrams, by contrast, touts a multivalent approach, to counter subjectivity and to support the multiple forms of creativity. Again unintentionally echoing jurisprudential concerns, he writes about aesthetic theory:

Most writers bold enough to undertake the history of aesthetic theory have achieved this end by silently translating the basic terms of all theories into their favorite philosophical vocabulary, but this procedure unduly distorts its subject matter, and merely multiples the complications to be unraveled. The more promising method is to adopt an analytic scheme which avoids imposing its own philosophy, by utilizing those key distinctions which are already common to the largest possible number of theories to be compared, and then to apply the scheme warily, in constant readiness to introduce such further distinctions as seem to be needed for the purpose in hand. (pp. 5–6).

Abrams endorses a pragmatic theory of aesthetics and criticism, one that resonates in common law thinking as applied to statutes such as the Copyright Act. Urging the appeal to “the largest possible number of theories” and the making of distinctions, Abrams could be describing the temperament of a good judge or juror. But what Abrams teaches is how a court operates much like an aesthetic critic, particularly where the domain of courts and critics overlap, as with copyright law.

With this background, I turn in the rest of this article to elaborating on Abrams’ approach to aesthetics and its relevance to copyright law, particularly the analysis of public performances. My goals are in part purely theoretical. But this article is intended as more than a display of my “favorite philosophical vocabulary.” Abrams’ ideas provide a valuable foundation for developing an aesthetic theory within copyright law, one that directly addresses the challenges posed by ungrounded legal rules attempting to govern copyright infringement and public performances. Professor Alfred Yen, a noted copyright scholar, has written about aesthetic theory in copyright law, and his work provides a valuable taxonomy of aesthetic theories that judges can draw upon in shaping their written opinions. But Professor Yen’s taxonomy offers a menu from which to choose rather than a coherent aesthetic theory. Abrams provides more than a menu of aesthetics. He offers a conceptual model of aesthetics that integrates the various strands of theories Professor Yen identifies.

Furthermore, an examination of Abrams’ ideas in the context of copyright allows me to raise issues about the use of conceptual models more broadly. Professor Yen looks to aesthetic theories, in part, as a response to the overuse of economic thinking in copyright law. (See Yen (1998).) Economic analyses of copyright, it is argued, tend to overemphasize market values in the creation of copyrighted works. (See Chander & Sunder (2013).) These tendencies work in favor of copyright owners at the expense of other creators who engage in collaborative creation or more transgressive methods of engaging with art and literature. Aesthetic theories, Professor Yen and others might claim, expand the scope of what judges must and should consider beyond the economic gains for copyright owners. Copyright law, one might say, is about culture rather than markets, about beauty rather than commerce.

While one should be skeptical about a narrow economic view of copyright, skeptics also need to remember that economics, as way of thinking, entails a broad conception of how to organize society and is not limited to the dismal visions of what Professor Tibor Scitovsky calls “the joyless economy.” (Scitovsky (1992).) The problem with economic analysis of copyright, of law in general, is a slavish devotion to a single conceptual framework that seems not to have gone beyond the basic economics course conventionally taught. Abrams provides a conceptual model as well. Slavish devotion to this model would also be troubling. The beauty of Abrams is that he provides a conceptual model that is not static, that permits adjustments to contexts and circumstances, and that elevates the aesthetic process without a single-minded focus on authors. Perhaps what is most surprising is that the framework provides a bridge between culture and markets, beauty and commerce, islands for feuding visions of copyright that provide more heat than light.

My elaboration of these ideas is presented in three parts. The next section summarizes Abrams’ conceptual framework of aesthetics with application to copyright law. The section following focuses on specific doctrines in copyright law, the standard of substantial similarity and the conflicting meanings of public performance. The last section concludes with comments on conceptual models and the potential ways to integrate considerations of aesthetics and economics in copyright law.

The Mirror, the Lamp, and Copyright

Literary critic M.H. Abrams was not a legal scholar and as a professor of English wrote nothing about any area of law or jurisprudence. Nonetheless, his ideas on criticism and the interpretation of texts lend themselves to the analytical questions raised by copyright infringement. Judges and juries stand like critics with respect to the copyrighted and infringing works they must assess. They interpret, compare, and apply a legal standard that invites engagement with hermeneutics through the use of the phrase “substantial similarity.”

Abrams’ core ideas that provide the background to this article were set forth in his 1953 The Mirror and the Lamp: Romantic Theory and the Critical Tradition. This treatise does not address copyright law directly, but its intellectual history of how critics have approached literary texts lends itself to the key methodological issues of copyright law. Read narrowly, Abrams’ book places the emphasis of English Romantic poets on literature as an expression of the self in a broader historical context. Conceptualizing literature as self-expression contrasts with an earlier tradition that viewed literature as a mirror held up to nature. For the Romantics, literature was a lamp held up to illuminate the world rather than a mere reflection of the universe. Furthermore, the Romantic tradition stands in opposition to literary theories contemporaneous with Abrams’ writing, the New Criticism, which viewed the text as an object for dissection and investigation. These various strands of literary theory, pre-Romantic, Romantic, and New Criticism, cohere in Abrams’ multivalent approach to aesthetic theory.

Metaphors of lamp and mirror should resonate with copyright scholars. Justice Holmes famously said in his Bleistein opinion that under copyright law:

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.

Copyright’s protections extend to the creation of an individual personality but not the original, which can be copied readily by others without law’s intervention. Holmes talks about the copyrighted work as a copy of the original, of what exists in the world, echoing Abrams’ metaphor of a work of art as a mirror held up to nature. But Holmes defines a copy as “the personal reaction of an individual upon nature.” This reaction suggests a Romantic aesthetic, and Holmes’ summation of copyright’s purpose is the basis for the Romantic theory of authorship which permeates copyright discourse of a particular vintage. Despite Abrams’ apparent remove from copyright law, his rendering and contextualization of Romantic aesthetics provides a powerful antidote to the overplayed emphasis on individual property rights rooted in Romantic authorship.

At the outset, Abrams identifies the Romantic aesthetic, and by implication Romantic authorship, as simply one branch of the web of relations within which a work of art exists. The following diagram, taken from his 1953 book, illustrates Abrams’ conceptualization:

Universe

Work of Art↔Artist

Audience

Starting with the Work of Art in the middle, each leg of this triangle depicts the place of the work of art under different aesthetic theories. If the work of art is understood solely as a mirror held up to the universe, we are in the realm of mimetic theories that sees interpretation as a gateway to understanding nature. If the work of art is understood solely as an expression of the artist, expressive theories of interpretation dominate. If a work of art is understood solely with respect to an audience, we are under the umbrella of pragmatic theories of interpretation. Within this triad, however, exists the seeds of a fourth aesthetic theory, one that takes a work of art as decontextualized, as an object to be taken apart and studied. Abrams calls this fourth approach the objective theory of aesthetics, which he associates with the school of New Criticism, dominant at the time of his writing.

As a taxonomy of interpretative approaches, Abrams’ four categories map into those proposed by Professor Alfred Yen. Drawing on his understanding of aesthetic theory, Professor Yen presents four types of aesthetic theory, institutionalism, intentionalism, reader-response, and formalism, each of which roughly corresponds to Abrams’ four types. Without delving further into Professor Yen’s proposed categories, it is worth pointing to the major difference between Professor Yen and Abrams. The latter provides a synthetic view of aesthetics that supports a multivalent approach. Professor Yen seemingly offers a menu of options from which a judge may choose after deciding her own view of aesthetics. Abrams’ diagram points to how the various dimensions integrate into a work-centered approach that suggests how one’s understanding of a work can draw on its many dimensions, the work’s place in the world, the response it elicits from an audience, the intent and expression of the author, and the text in isolation. These four dimensions define the work of art and provide the broad context within which to identify and assess it.

What Abrams’ diagram teaches is not how to synthesize the various approaches to a work of art, but how to recognize the various perspectives from which a work of art can be read. Synthesizing perspectives from the audience, the author, the world, and the text itself is a fruitless task since these viewpoints may not often cohere. A love ballad has different meanings when seen from the viewpoint of a recipient of its message, from that of the composer, from that of the universe, which may look indifferently on transient or fleeting emotions, and from the harmonic chords that make up the musical composition. But even if synthesis is impossible, the alternative of adopting one perspective, one aesthetic approach is equally unappealing. The work of art loses nuance, is reduced to a thing, and is displaced from context. Multivalence requires the critic or judge not to be complacent by settling for one identified and certain meaning.

Even if Abrams’ diagram provides some guidance for the reading of works in copyright cases, the goals of literary criticism and copyright law remain so decidedly different that the superficial similarities between Abrams’ aesthetic theories and copyright are ultimately unhelpful. In response, one needs to consider Abrams’ engagement with debates over the purpose of poetry. The Romantic poets and subsequent literary critics were confronted with the foundation-shaking view that science with its objectification and emphasis on utilitarian values undermined the need for poetry and the imagination. If creativity and the imagination have no purpose, one would be led to ask, what of value is copyright promoting? A possible response is to endorse a utilitarian theory of copyright, one that emphasizes copyright’s role in promoting works useful to a particular end, such as the promotion of knowledge or the spread of enjoyment. (See Bowrey (2012).) Are copyrighted works the seeds for intellectualism or for entertainment? Are these goals mutually exclusive? Abrams points to many justifications for creativity in a culture dominated by science and technology. Creative works open up the mind to truths beyond objective reality, emotions that shape and guide intellect. These questions of purpose, partially normative (what should copyright and art do?), partly instrumental (what can copyright and art do?), provide another parallel between Abrams’ aesthetic theory and copyright. Both engage in ongoing and recurring challenges to identifying the value of creativity and imagination.

In addition, Abrams’ aesthetic framework when translated into the domain of copyright opens avenues that go beyond mere authors’ rights or moral rights. A work is not reduced to a commodity that can be exchanged to enrich an author. Alternatively, a work is not reduced to the authorial personality that finds embodiment within the work’s expression. Copyright theorists struggle with this individualistic conception of the work in relationship to the author. (See Woodmansee & Jaszi (1994); Aoki (1996); Coombe (1998); Biagioli (2011).) But this dimension is only one that defines the work of art. A work of art has an existence separate from its relationship to its creator. At the same time, scholars who adopt a purely utilitarian theory of copyright reduce a work as a resource to be exploited by other creative or consuming minds. (See Jaszi (1992).) A book is just fodder for a movie; a song, just a seed for parody; a sculpture, just an item to be displayed on one’s lawn; lines of software code, just a variable to be modified to meet the needs of a video gamer. Ignoring the role of the author ignores dimensions of a work’s meaning. Abrams’ aesthetic theory, by pointing to multivalence, forces the judge to acknowledge that a work has many meanings and copyright many purposes.

If one accepts that Abrams’ method can illuminate copyright, the question is how to translate his view of aesthetics to the type of rigorous inquiry demanded by copyright? How can this translation occur in a pragmatic manner consistent with the need for art, creativity, and copyright? These questions are the subject of the next section.

Passing the Lamp over Substantial Similarity and Public Performance

To reach the legal conclusion that someone has copied original expression from the work of a copyright owner, the court must find that the infringer’s work and the owner’s work are “substantially similar.” In addition, an individual might be an infringer if he has publicly performed a work without the copyright owner’s permission. In this section, I show how Abrams’ aesthetics can cast light on the controversies arising from these two propositions.

Identifying substantial similarity requires a comparison of the two works in question. This comparison can be a matter purely for the trial judge or for the jury, if one has been requested by either party. The role of the jury is to address factual questions regarding the similarity of the two works; that of the judge is to address the legal question of infringement based on the factual determinations. Within the setting of the courtroom, the works are necessarily decontextualized. In the case of music, the focus of the judge and jury is on specific similarities with respect to actual notes, melodies, or harmonies. In the case of fiction, whether movies or books, the focus would be on specific scenes or passages or on specific, well-delineated characters that may coincide in the two works. In the case of software, identical lines of programming code would support substantial similarity. This textualism is common in legal analysis, and its relevance to copyright law should not be surprising. The contentiousness of legal disputes can be calmed by appeal to the objective language, often drafted under calmer, more rational conditions. It is soothing for the parties and the court to look to the meaning of words to resolve disagreements.

One response to this problem of textualism is to introduce context through other legal doctrines. In cases like the Blurred Lines litigation or Oracle’s claims of reproduction against Google, where liability may rest on only a small portion of the infringing work being found similar to the copyright owner’s work, courts assert that the real legal issue is one of fair use. Through this assertion, a court shifts the burden to the alleged infringer to defend his copying by showing it was legally justified. As a technical matter, this justification must be shown through a demonstration of four factors, which I will ask any interested reader to investigate on her own. In practice, the technical requirements for justification reduce to a showing that the alleged infringer has transformed the copyrighted work in ways that demonstrate his creativity and that meet society’s criteria for original works of authorship. The alleged infringer, in short, might be found liable for copying a minimal amount of text of questionable originality, but can defend against liability by pointing to the originality and transformativeness of his own work.

But in looking for transformativeness, courts can also stumble over the impediments posed by textualism. Often they look for portions of the infringer’s work that show flashes of originality and creativity. This search can be sometimes serendipitous, sometimes blind. In the court’s fair use analysis in Prince v. Cariou, the court had to identify when the introduction of features drawn into the photographs of ethnographer Cariou by appropriation artist Price transformed the images. Would adding a guitar and a Rastafarian look suffice? How about scribblings on the photographs? The court’s conclusion that some of Prince’s works were transformative and others not, underscore how untethered and arbitrary the analysis can be.

If the source of the problem, both for substantial similarity and fair use, is a heavy emphasis on textualism, then the solution might lie in a turn to contextualism. Abrams’ aesthetic framework provides substance to contextualizing copyrighted works in litigation. The framework identifies three dimensions beyond the work itself that allows the judge of a work, whether literary critic or an actual jurist, to assess the text. What I am suggesting is that the twin inquiries of substantial similarity and fair use can be improved through more generous consideration of the audience, the author, and the world, to refer to Abrams’ diagram. My contention is that such a broader inquiry would not make the legal determination more open-ended but would allow a careful judge to consider other factors than the text consistent with the goals of copyright, even purely utilitarian ones, and of aesthetics. The next example of the treatment of a cable broadcast “public performance” further supports this point.

Up until the late 1960s, television broadcast occurred through terrestrial signals picked up by television sets as receivers. Local television stations, some affiliated with national television companies, would broadcast these signals for free under license from the Federal Communications Commission. The broadcast programs were funded through advertising. In the late 1960s, cable systems were introduced by private companies as subscription services to enhance the local signal or to retransmit the signal to regions that were outside the broadcast area. These early cable systems did not develop their own content but retransmitted the broadcast signal of local stations through cable technology. As with radio, the local television broadcast would require permission from copyright owners to publicly perform the works. The legal question that went up to the Supreme Court was whether cable companies also had to obtain permission for public performance from copyright owners.

In two companion opinions, the Supreme Court ruled that retransmission of a local broadcast signal did not constitute public performance. The cable providers, the Court reasoned, was resending a signal, not broadcasting copyrighted content. The signal itself was not copyright protected, and the cable providers did not transform the signal in any way. Conceptually, the copyrighted work had been transformed into a signal by the local broadcasters, and cable providers were simply picking up this signal for retransmission. If there was a performance, it occurred when the television set picked up the signal and played the copyrighted work to the viewer. But such a performance would most often be in a private home and therefore not be public.

The Supreme Court decisions provided a subsidy for the fledgling cable industry as its members did not have to obtain a separate license for public performance rights, unlike its local broadcast rivals. When Congress amended the Copyright Act in 1976, it incorporated this special subsidy in adopting cable-specific rules regarding public performance rights. Congress did amend the definition of public performance to include a retransmission and rebroadcast of a signal to the public. But it also granted cable companies (and later satellite companies) a statutory license for the exercise of this retransmission and rebroadcast. The royalties associated with this license are negotiated within the Copyright Office.

Conceptual choices of how to understand public performance shaped the treatment of cable and satellite companies under the Copyright Act. Battles over conceptualization continue in current legal disputes over Internet services for transmitting copyrighted television programs. In 2014, the Supreme Court confronted these debates in its Aereo decision, which certainly did not resolve the bigger questions but did frame how future debates might be resolved. At issue in Aereo was an Internet-based system for transmitting local television broadcast signals to subscribers. Aereo’s system involved capture of local television signals and retransmission through the Internet via a set of antennae. While the retransmission would constitute performance, Aereo argued that since each subscriber had their own antenna through which the retransmission occurred, the performance was not to the public but to individual users who could view the content on their device. They analogized their system to cable and satellite systems that allowed remote recording of programs by users who could save the copied content in a personalized cubbyhole located on the system. When the subscriber accessed the individualized cubbyhole for viewing, that transmission would not be to the public but to an individual viewer. The Supreme Court, in a decision authored by Justice Breyer, rejected Aereo’s analogy and reasoning and held that Aereo’s system was a public performance. Justice Scalia, with Justices Thomas and Alito dissented, concluded that a public performance did not occur in the retransmission. (See Dykstra (2015).)

At the heart of the disagreement between the majority and the dissent is differing conceptualizations of Aereo’s system. Justice Breyer reasoned that Aereo’s service was no different from contemporary cable services, retransmitting a signal to the public and thereby engaging in a public performance. The mechanism of using a separate antenna for each subscriber was just a trick. Even though each individual antenna could be turned on at different types, the complete set of antennae provided a means for retransmitting the signal to the public. Justice Scalia, on the other hand, also analogized the Aereo system to cable, but the cable system as it existed in the late 1960s. Aereo’s technology and its business model were innovative and worked within the parameters of copyright law to develop a new method for delivery of television content from the library of content provided by Aereo. The antenna Scalia analogized to a library card, allowing viewer choice in determining what to watch and when. Just as the Court had supported fledgling cable systems, so should the current Court encourage innovation in media made possible by the Internet.

From the radio to Aereo, the twists and turns of what is a public performance reflect conflicting conceptions of how copyright owners and audiences interact. While this point suggests one prong of Abram’s diagram, the conceptual battles over public performance implicate all parts of his aesthetics. What is at the core, however, is not the copyrighted television program but the act of performing a work itself. The legislature and courts have understood public performance in terms of the audience, whether viewed as patrons of theaters sitting in their individual seats and boxes or the owner of electronic devices receiving and displaying signals. In Aiken, for example, the Supreme Court held that turning on a radio in a restaurant, a public place, did not constitute a public performance of the work. The Court’s decision reflected a pragmatic concern over making each radio listener liable when she turned the dial.

But the audience is only one factor for conceptualizing a performance. The identity of the performer, the author of the performance, may also be critical in determining when a performance is public. An actor or playwright may be seeking a public forum, whether a stage or more modern media, for self-expression. Creators want their work transmitted through public media, and so transmissions by radio or television broadcasters are performances within the system of publishing and dissemination that has developed with new media. In other instances, however, the dissemination of a work may not conceptually be a performance at all. Although we speak of “playing” a radio, turning on the radio for others to hear a musical composition or a dramatic show intuitively does not seem to be a performance.

What these examples show is yet another dimension along which we understand performances, their relationship with the broader universe, by which I mean the sociological and cultural context for media and communications. Digital systems like Aereo using the networks made possible by the Internet challenge the notion of public performance. Is the Aereo network like the radio network that is the subject of the Aiken case or like cable and satellite television, subject to their specialized rules? Justice Breyer readily accepted the cable analogy; Justice Scalia was more skeptical, viewing the contemporary Internet like a network of libraries developed within the innovative and entrepreneurial environment of digital technologies. Both, however, struggled with how the Aereo service relates to the broader universe of network communications.

As with our understanding of substantial similarity and copying, public performance rests on conceptual assumptions that guide the interpretation and application of legal doctrines. What I have argued in this section is that this conceptual framework is a multidimensional one. Abrams’ diagram provides a conceptual model for approaching works and performances. Judges and juries, effectively acting as critics, should embrace the multidimensional approach to more completely construct the meaning of creative works.

Thoughts on Conceptual Models in Copyright

At the minimum, this article explores the following thought experiment: How might the aesthetic framework of noted literary critic M.H. Abrams apply to copyright law? But the exploration of the doctrinal and policy realms of substantial similarity and public performance reveals a deeper question: What role do conceptual models play in copyright law? The answer, in part, is that conceptual models can guide or blind copyright scholars and jurists. Careful handling, deliberate and discrete application, and caution are all advised as conceptualism necessarily is brought to bear to the critical questions in copyright.

This last set of points is particularly relevant to the ability of aesthetic theory to offer an alternative or, even stronger, an antidote to the economic theory of copyright. While economic theories reduce works of art to commodities and the values of culture and creativity to pecuniary measures, aesthetic theories are pursued in order to enrich copyright policy. But aesthetic theory might suffer from the same flaw as economic theory (see Spiegler (2015)), namely an unreflective conceptualism, one that reduces copyright to a fixed and determined set of relationships. What the inquiry of this article shows, or so I intend, is that the richness of M.H Abrams’ diagram goes beyond its nuance and intellectual beauty to incorporate a multivalent, multicontextual approach to interpretation. This push to multivalence is necessary both for the pure literary critic and the judge or juror forced to act like a critic in a copyright dispute.

My framing of copyright law in terms of competing contextualism highlights also the narrow contours of standard debates between utilitarianism and moral rights. What is often overlooked is that both economic and aesthetic approaches can lead down utilitarian or moral rights paths. Economic theory may point us toward welfarism, or it might narrow our focus to the wants and needs of an individual author. Analogously, aesthetic theories might lead us to think of copyright in aggregative terms like culture or audience. But aesthetic theories can also support an emphasis on the self-expression of the individual author. The problem is that both utilitarianism and moral rights are abstract theories, too readily divorced from the concrete realities of creating, making, reading, discussing, critiquing. The real challenge in copyright theory and policy is going beyond conceptualism, recognizing its influence while incorporating the practicalities of interpreting a work of art against the constraints and contexts of the world in which the work was created. Whether the model is based in economics or aesthetics, the model cannot be a substitute for reality.

Abrams’ aesthetic framework, as motivating the arguments in this article, serves as both mirror and lamp. As mirror, it reflects the dimensions along which critics and jurists argue over how a work is to be conceptualized. Is a work about the audience or the author? Is performing a work analogous to existing media such as cable or to emerging and innovative networks of communication? But ultimately, Abrams’ aesthetics is a lamp, illuminating how these debates can be reconciled without being rancorous, while lighting a path for bringing our conceptual models back to the world from which they sprung. (See Howard (1965); Radin (1986).)

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