Unavoidable Aesthetic Judgments in Copyright Law: A Community of Practice Standard

Posted: 5 Sep 2015

See all articles by Robert Walker

Robert Walker

University of California Hastings College of the Law

Ben Depoorter

University of California Hastings College of Law; Ugent - CASLE; Stanford Law School Center for Internet & Society

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Date Written: March 1, 2015

Abstract

Aesthetic judgments are “dangerous undertakings” for courts, but they are unavoidable in copyright law. In theory, copyright does not distinguish between works on the basis of aesthetic values or merit (or lack thereof), and courts often go to great lengths to try to avoid artistic judgments. In practice, however, implicit aesthetic criteria are deeply embedded throughout copyright case law. The questions “What is art?” and “How should it be interpreted?” are inextricably linked to the questions “What does copyright protect?” “Who is an author?” “What is misappropriation?” and many other issues essential to copyright. Although courts rarely (if ever) explicitly adhere to aesthetic principles in their decisions, the judicial logic used in copyright cases closely mirrors three major aesthetic theories: Formalism, Intentionalism, and Reader-Response. Unfortunately for courts, these theories are largely incompatible. Furthermore, none are sufficiently expansive to cover the variety of practices contained within a single artistic tradition, let alone the panoply of expressive mediums protected by copyright law. As a result, doctrinal inconsistencies abound (both inter- and intra-circuit), and the case law largely fails to provide clear guidance as to the scope of protection — and risk of liability — associated with different artistic practices. This Article examines how courts have applied aesthetic theories to resolve doctrinal issues concerning copyright eligibility, derivative works, useful articles, and statutory fair use. Based on this analysis, this Article argues that courts should adopt a uniform approach to aesthetic judgments from the perspective of a hypothetical “Community of Practice” capable of situating an expressive work in a specific artistic context.

Keywords: copyright, intellectual property, art, aesthetics, art history, theory, derivative works, useful articles, fair use

Suggested Citation

Walker, Robert and Depoorter, Ben, Unavoidable Aesthetic Judgments in Copyright Law: A Community of Practice Standard (March 1, 2015). Northwestern University Law Review, Rev. 343 (2014), UC Hastings Research Paper No. 164, Available at SSRN: https://ssrn.com/abstract=2655868

Robert Walker (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Ben Depoorter

University of California Hastings College of Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Ugent - CASLE ( email )

Universiteitstraat 4
Belgium

Stanford Law School Center for Internet & Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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