Rebecca Tushnet - Worth a Thousand Words: The Images of Copyright Law

Has the textual model of copyright law restricted its ability to properly govern images? In her article Worth a Thousand Words: The Images of Copyright Law, 125 Harv. L. Rev. 683 (2012), Professor Rebecca Tushnet (Georgetown University Law Center) discusses the contradiction and confusion that courts have encountered when assessing whether images are copyrightable and determining if copyrights have been infringed. She proposes that the “substantial similarity” test for determining whether a party has infringed the reproduction right of a copyright be abandoned, a true “reproduction” right that protects against exact (or near-exact) copying be adopted in its place, and an end to analyzing images as if they were text.

Professor Tushnet introduces the “transparency/opacity” problem to begin her analysis and then examines the difficulties that copyright law faces with images. She describes how vision has been prioritized among the senses and is often deemed to be the truth. Almost universally, images are either understood to represent reality (“transparent”) or are too mysterious to be understood (“opaque”). With a few examples, Professor Tushnet demonstrates how images are capable of effective persuasion and trigger emotions. Specifically, she argues that it is the differing levels of persuasion and the variance of interpretation that trouble the transparent view of images.

Professor Tushnet addresses copyright’s conflicting dealings of images by discussing the low threshold of copyrightability and the “substantial similarity” test. She attributes some of the puzzling judicial interpretations of images to the courts' historical awkwardness in interpreting images and a perpetual misunderstanding of the proper analysis of visual ideas. This mistreatment was vividly illustrated by likening the inability to separate ideas from expressions in photography and poetry. She suggests that it is the interaction between aesthetics and reality in our perception of images that creates an unnecessary dichotomy between creative works and “simple transmissions of facts.” Additionally, Professor Tushnet discusses the verbal overshadowing phenomenon that may taint copyright infringement litigation. Since it is unlikely that courts will abandon the illusion that images transparently represent reality, Professor Tushnet argues for a radical move to overcome this assumption. Her proposal would abandon substantial similarity completely and apply a true reproduction right that covers only perfect and near-perfect counterfeits.

The controversial interplay between subjective aesthetic determinations and objective legal reasoning in copyright law has been widely acknowledged by scholars and practitioners. See e.g. John B. Fowles, The Utility of a Bright-Line Rule in Copyright Law: Freeing Judges from Aesthetic Controversy and Conceptual Separability in Leicester v. Warner Bros., 12 UCLA Ent. L. Rev. 301 (2005); Alfred C. Yen, Copyright Opinions and Aesthetic Theory, 71 S. Cal. L. Rev. 247 (1998); Christine Farley, Judging Art, 79 Tul. L. Rev. 805 (2005). Professor Tushnet concedes that a resolution to the current approach of governing images in copyright may be difficult, but the treatment of images can be improved. With the assistance of digital technology, images have seemingly engulfed modern communication, making their governability increasingly important. Professor Tushnet’s article illustrates the fallacy of governing images with text-based tools, identifies copyright law’s need to recognize the multiple meanings of images expressed in various ways, and provides a starting point to go beyond mere assumptions and apply a nontextual model to images in copyright law.

Posted by Derik Sanders (dtsanders@smu.edu), a 2014 Juris Doctor Candidate at SMU Dedman School of Law and research assistant to Professor Sarah Tran.