Monday, September 18, 2017

Barton Beebe: Bleistein and the Problem of Aesthetic Progress in American Copyright Law

Bleistein v. Donaldson Lithographing Co., is a well-known early twentieth century copyright decision of the U.S. Supreme Court. In his opinion for the majority, Justice Holmes is taken to have articulated two central propositions about the working of copyright law. The first is the idea that copyright's originality requirement may be satisfied by the notion of "personality," or the "personal reaction of an individual upon nature," which was satisfied in just about every work of authorship. The second is the principle of aesthetic neutrality, according to which "[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." Both of these propositions are today understood as relating to copyright's relatively toothless originality requirement, which few works ever fail to satisfy.

In a paper recently published in the Columbia Law Review, Barton Beebe (NYU) unravels the intellectual history of Bleistein and concluded that for over a century, American copyright jurisprudence has relied on a misreading (and misunderstanding) of what Holmes was trying to do in his opinion. On the first proposition, he shows that Holmes was deeply influenced by American (rather than British or European) literary romanticism, which constructed the author in a "distinctively democratic—and more particularly, Emersonian—image of everyday, common genius." (p. 370). On the second, Beebe argues that Holmes' comments on neutrality had little to do with the originality requirement, but were instead a response to the dissenting opinion that had sought to deny protection to the work at issue (an advertisement for a circus) because it did not "promote the progress," as mandated by the Constitution. The paper then examines how this misunderstanding (about both propositions) came to influence copyright jurisprudence, and Beebe then proceeds to suggest ways in which an accurate understanding of Bleistein may be used to reform crucial aspects of modern copyright law. The paper is well worth a read for anyone interested in copyright.

Beebe's examination of Holmes' views on progress, personality and literary romanticism did however raise a question for me about the unity (or coherence) of Holmes' views, especially given that he was a polymath. Long-regarded as a Legal Realist who thought about legal doctrine in largely functional and instrumental terms, Bleistein's commonly (mis)understood insights about originality comport well with Holmes' pragmatic worldview. His treatment of originality as a narrow (and normatively empty) concept, for instance, sits well with his anti-conceptualism and critique of formalist thinking. But if Holmes really did not intend for originality to be a banal and content-less standard (as Beebe suggests), how might he have squared its innate indeterminacy with his Realist thinking? Does Beebe's reading of Bleistein suggest that Holmes was not a Legal Realist after all when it came to questions of copyright law and its relationship to aesthetic progress? This of course isn't Beebe's inquiry in the paper (nor should it be, given the other important questions that it addresses), but the possibility of revising our view of Holmes intrigued me.

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