Dangerous Undertakings: Sacred Texts and Copyright's Myth of Aesthetic Neutrality
THE SAGE HANDBOOK OF INTELLECTUAL PROPERTY (Matthew David & Debora Halbert eds. 2014) (Sage Publications)
18 Pages Posted: 12 Aug 2014 Last revised: 5 May 2015
Date Written: July 3, 2014
At a rhetorical level, American courts have maintained a steadfast commitment to aesthetic neutrality in their copyright jurisprudence. In holding that pedestrian commercial copy would receive the same protection under the law as high-brow art, Justice Oliver Wendell Holmes once famously cautioned that “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.” Yet for all this rhetorical solicitude, courts inevitably make aesthetic judgments when approaching copyright cases. Dangerous Undertakings examines how subtle aesthetic considerations in the fair use calculus impact the extent to which courts permit unauthorized reinterpretations of canonical works and other cultural content.
To develop this point, this Essay compares juridical reasoning in three widely observed infringement cases: the controversy over Alice Randall’s lacerating rendition of Gone with the Wind, the ill-fated attempt of J.D. California to publish an unauthorized sequel to Catcher in the Rye and the unlicensed use of a collection of Rastafarian photographs in renowned appropriation artist Richard Prince’s Canal Zone series. Through the course of its analysis of Suntrust v. Houghton Mifflin, Salinger v. Colting and Cariou v. Prince, this Essay undermines the myth of aesthetic neutrality and considers how juridical conceptions of history, hierarchy and value help consecrate cultural meaning and develop epistemological narratives. As Dangerous Undertakings ultimately argues, to better understand the adjudication of copyright questions, we must not only recognize the elusive nature of aesthetic neutrality; rather, we must also appreciate the power of embedded cultural norms and assumptions in driving copyright law’s development.
Keywords: copyright, aesthetic neutrality, fair use, parody, satire, Catcher in the Rye, Gone with the Wind, Richard Prince, J.D. Salinger, Margaret Mitchell
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