Sunday, May 20, 2018

Barton Beebe on Bleistein

Barton Beebe’s recent article, Bleistein, the Problem of Aesthetic Progress, and the Making of American Copyright Law, was already highlighted on this blog by Shyamkrishna Balganesh, but I wanted to add a few thoughts of my own because I really enjoyed reading it—it is a richly layered dive into the intellectual history of U.S. copyright law, and a wonderful piece to savor on a weekend.

In one sense, this is an article about one case’s role in U.S. copyright law, but it uses that case to tackle a fundamental question of copyright theory: what does it mean “to promote the Progress”? Beebe’s goal is not just to correct longstanding misunderstandings of Bleistein; as I understand it, his real point is that we can and should “assess[] aesthetic progress according to the simple propositions that aesthetic labor in itself is its own reward and that the facilitation of more such labor represents progress.” He thinks Justice Holmes’s invocation of “personality” in Bleistein represents a normatively attractive “third way” between judges assessing aesthetic merit and simply leaving this judgment to the market—that aesthetic progress is shown “by the mere fact that someone was willing to make the work, either for sale or otherwise, and that in making it, someone had invested one’s personality in the work.”

This personality-centered view of copyright seems similar to the Hegelian personality theory that was drawn into IP by Peggy Radin and elaborated by Justin Hughes, though at times it seems more like Lockean theories based on the author’s labor. I think he could have done more to explain how his theory relates to this prior literature, and also how it’s different from a utilitarian theory that recognizes the value creators get from creating (à la Jeanne Fromer’s Expressive Incentives). In any case, I think Beebe’s take is interesting, particularly with the connection he draws to John Dewey’s American pragmatist vision of aesthetic progress.

But this article is not presented as a work on the theoretical foundations of IP—it is presented as a revisionist account of the 1903 Bleistein decision, so what work is this case doing? As I understand it, Beebe’s take on the opinion is that (1) Holmes was wrong about the IP Clause covering fine art, but we shouldn’t change that; (2) he was also wrong in concluding that “Progress” means commercial value, and we should change that; and (3) he was brilliant in investing the originality standard “with the dignity of democratic ‘personality,’” so we should revitalize that as the basis for our copyright law. I don’t think Beebe is arguing that we should adopt this personality approach because Holmes said it. And he’s certainly not saying that this is the original meaning of “Progress,” given that he thinks the IP Clause wasn’t intended to protect fine arts at all. Bleistein seems more like an interesting lens through which to express his vision of aesthetic progress.

This isn’t to say that Bleistein is not a worthy target. On the first day of copyright in Intro to IP, I point out the famous “dangerous undertaking” quotation from Bleistein, note that it is often recited, and ask the students to keep in mind as they read the cases whether they think it is actually true that judges aren’t passing on the artistic merit of the works before them. But I’ve never thought this deeply about Bleistein before, and I’ll certainly do a better job discussing it in class after reading this article. I’ve also learned a great deal about the development of modern U.S. copyright law, and in that sense, the article is a resounding success.

I’m less convinced by the payoffs of this personality theory for modern doctrine in Part IV. In some cases, I see how the test would be different—e.g., switching the originality inquiry to “whether the work contains its creator’s personality”—but I don’t know how that helps decide the tough cases. More fundamentally, I’m not convinced it is right that focusing on the value of the act of creation necessarily requires a shift toward access on the incentives/access balance—what if this shift, on net, causes fewer people to invest their personalities in new works? I think Beebe’s conclusion depends on the empirical assumption that shifting toward access would lead to more creation (however we’re quantifying that), and I’m not sure what he’s basing this on—the millions of people who create for free that he points to seem like they could be evidence that people who want to create find plenty of ways already.

One final note: The article is full of tangents and takes a while to get to the point, but they are interesting tangents (and one of the real contributions of the paper), so I didn’t mind the detours. My favorite part was where Beebe teases Justice Holmes for making “a great show of his aesthetic cultivation” while making a great show of his own aesthetic cultivation (which is presumably somewhat tongue-in-cheek). These frequent asides might be frustrating for busy readers looking for a take-home point, but for a lazy Sunday afternoon, they are perfect.

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