Copyright and Cultural Capital

Abstract

This Article explores the oft-ignored relationship between copyright law and class stratification. Copyright law widens and perpetuates the gulf between the elite and the masses in three ways. First, within copyright doctrine, the values of originality, lone artistic creation, and a fetishism of the original over the copy (evident in the Visual Artists Rights Act of 1990) align with the American high-brow's claim to avant-garde newness, utter originality, and the demoted status of art forms dependent on copies (chromolithography, photography, industrial arts). Second, copyright's legal remedies — including control over rote copying and the derivative works right — facilitate the high-brow's obsession with limited production and against appropriation ("watering down") by the middle brow and low brow. Third, a copyright holder’s monopoly power puts a high price on cultural fluency that may be impossible to achieve for those in emerging economies and the less affluent. In this way, copyright law incorporates, perpetuates, and exacerbates the cultural and capitalist class divide. As the late '80s and early '90s gave way to what I term a reverse-culturalization, or, the high-brow appropriating from the low-brow and making it high art, the relevance of copyright to the domestic artistic elite has diminished. Instead, copyright is now being deployed by big Hollywood studios and the recording industry as a means of denying equal access to knowledge in foreign countries. If the sociologist Pierre Bourdieu had written many years ago that it is only the rich, upper-class who can afford to engage in limited production or the coded literary language of high-brow culture, we are now seeing that adage playing itself out on the global arena in relation to culture as a whole — with copyright as its means of separating the cultural elite from the culturally less affluent.

Keywords: copyright, moral rights, access to knowledge, fair use