Feminist Aesthetics and Copyright Law: Genius, Value, and Gendered Visions of the Creative Self

Craig, C. (2014). Feminist Aesthetics and Copyright Law: Genius, Value, and Gendered Visions of the Creative Self. In I. Calboli & S. Ragavan (eds.), Protecting and Promoting Diversity with Intellectual Property Law. United Kingdom: Cambridge University Press, Forthcoming

Osgoode Legal Studies Research Paper No. 42/2014

20 Pages Posted: 12 Jul 2014 Last revised: 26 Jul 2014

See all articles by Carys J. Craig

Carys J. Craig

Osgoode Hall Law School, York University, Toronto

Date Written: March 13, 2014

Abstract

Copyright law is fundamentally concerned with the value of cultural works — both the recognition and the creation of this value. Yet it is seldom acknowledged that copyright law makes or requires any value judgment in the sense of an aesthetic evaluation of copyright’s subject matter. Indeed, it is often emphasized that copyright protects original works of authorship regardless of their quality or merit. That copyright protection demands the satisfaction of only the most minimal of qualitative standards does not, however, dispose of the larger claim that forms the basis of this chapter: our copyright system is dominated by a particular aesthetic theory or idea. Any attempt to justify the rights established by the copyright system over artistic works must presuppose an aesthetic theory of sorts in order to explain what is protected and why (as well as what is not protected or permitted, and why not). While not based on the quality of copyright’s subject matter, these explanatory efforts will point to its nature as original literary or artistic expression, which thus deserves or requires some form of legally recognized reward. We simply cannot justify the copyright system without ascribing some value to the particular expressive works in which it vests, and the creative acts and actors that it privileges. Seen in this light, it can hardly be claimed that copyright law is aesthetically agnostic. In this chapter, my goal is to uncover, in copyright’s most basic patterns, the hidden aesthetics of copyright law as viewed from a critical feminist perspective. My suggestion is that conceptions of aesthetic value and its production are stitched into the very fabric of copyright law, defining its contours and determining the purposes it serves — and what is more, these conceptions of aesthetic value are fundamentally gendered.

Keywords: Copyright, aesthetics, originality, authorship, genius, gender, feminism

Suggested Citation

Craig, Carys J., Feminist Aesthetics and Copyright Law: Genius, Value, and Gendered Visions of the Creative Self (March 13, 2014). Craig, C. (2014). Feminist Aesthetics and Copyright Law: Genius, Value, and Gendered Visions of the Creative Self. In I. Calboli & S. Ragavan (eds.), Protecting and Promoting Diversity with Intellectual Property Law. United Kingdom: Cambridge University Press, Forthcoming; Osgoode Legal Studies Research Paper No. 42/2014. Available at SSRN: https://ssrn.com/abstract=2464536

Carys J. Craig (Contact Author)

Osgoode Hall Law School, York University, Toronto ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
416 736 5189 (Phone)
416 736 5736 (Fax)

HOME PAGE: http://www.osgoode.yorku.ca

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