How Copyright Law Protects Art From Criticism

This post by Noah Berlatsky originally appeared on Pacific Standard on 9/29/14.

Aesthetics aren’t supposed to affect the law. You can’t dump a bucket of fishheads on Kevin Costner, even if he is a festering boil on the body of American cinema. You can’t hack Amazon and delete every copy of every Pearl Jam album, no matter how ludicrous the bellowing of Eddie Vedder may be. Ruth’s Journey, Donald McCaig’s authorized sequel to Gone With the Wind, which will be published later this month, may be wonderful or it may be horrible or it may just be blasé. But, no matter its quality, you’re not legally allowed to sell pirated copies of it.

The rationale here is easy enough to follow. The law is supposed to apply to everyone equally. Aesthetic judgments are contradictory and individual. Some benighted people may even like Kevin Costner or Eddie Vedder. Ruth’s Journey, told from the viewpoint of Gone With the Wind‘s Mammy, looks fairly tedious to me from reviews, but other folks may love it. That’s why, in a famous copyright decision dealing with banal advertising art, Oliver Wendell Holmes declared:

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.

Holmes’ admonition is often cited in intellectual property cases, and it’s widely seen as the correct legal position on copyright issues. Courts, everyone agrees, shouldn’t be ruling on whether Kevin Costner or Eddie Vedder or Ruth’s Journey are good art or bad art. Courts should enforce copyright regardless of how good or bad the copyrighted work may be.


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