Copyright necessitates aesthetic assessment, perpetuating underlying masculinist ideologies biases and a gendered vision of creative worth – recognizing these inevitable biases is the ONLY way to diversify artistic expression

Copyright protects only original works of an artistic, literary, dramatic, or musical nature. By requiring such classification, the law would seem to demand at least some basic explanation of what is meant by “art,” what sounds constitute “music,” what symbols, when strung together, might be said to amount to “literary” expression. And yet, copyright juris- prudence is replete with the insistence that no such assessment of the substance of a work is required – the determination of whether some- thing is an “artistic work,” we are frequently assured, has nothing to do with the qualitative evaluation of whether something is good art, bad art, or even a “work of art.”1 As Alfred Yen put it, “the general irrelevance

1 See, e.g., George Hensher Ltd. v. Restawhile Upholstery Ltd. [1976] A.C. 64 (H.L.) 78–9 (U.K.) (Lord Reid stating that “it may be misleading to equate artistic craftsmanship

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of aesthetics has become a cornerstone of copyright jurisprudence.”2 In Bleistein v. Donaldson Lithographing Co., for example, Justice Holmes famously warned, “[I]t 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 lim- its.”3 In the House of Lords judgment in George Hensher v. Restawhile, Justice Reid wrote of “a trend of authority with which I agree that a court ought not to be called on to make an aesthetic judgment. Judges have to be experts in the use of the English language but they are not experts in art or aesthetics.”4 In DRG Inc. v. Datafile Ltd., Justice Reed warned that “[r]equiring Courts to determine what is ‘artistic’ ... is not a happy situa- tion,”5 and concluded that the phrase “artistic work” is used in copyright legislation merely “as a general description of works which find expres- sion in a visual medium.”6 Yet, if the institution of copyright law is indeed aimed at the “progress of the arts”7 and the encouragement of “works of the arts and intellect,”8 this refusal to give substantive legal definition to “art” might seem strange or troublesome: Can we really make, apply, and justify laws that encourage the creation of something we refuse to define?

AlfredYen has argued convincingly that the judicial insistence on avoid- ing explicit aesthetic judgments in copyright cases maintains a perceived distinction between aesthetic and legal reasoning that is entirely illusory; it rests on a particular understanding of the nature of legal reasoning as a rule-bound exercise in formal logic.9 A Canadian judge expressly trying to avoid judging the artistic merit of an architectural work nicely cap- tured the connection:

It is gratifying to think that those who drafted this Act were content to leave such aesthetic responsibility to the judiciary, but it is, I think, dangerous to assume such intention....The good art of today is almost invariably the bad art of tomor- row, for aesthetic standards and values change from generation to generation.... The legal approach is, as a rule, to elevate precedent and to view innovations somewhat askance.The function of the Judge has always been to weigh evidence and propound existing law. In the arts, evidence of aesthetic values is, as a rule, merely the heated opinion of prejudiced adherents.10

with a work of art. ‘Work of art’ is generally associated more with the fine arts than with

craftsmanship and may be setting too high a standard.”).

2  Alfred C. Yen, Copyright Opinions and Aesthetic Theory, 71 S. CaL. L. rEv. 247, 249

(1998).

3  Bleistein v. Donaldson Lithographing Co. 188 U.S. 239, 251 (1903).

4  Hensher, [1976] A.C. at 78.

5  DRG Inc. v. Datafile Ltd., [1988] 2 C.F. 243, para. 12 (Can.).

6  Id. at para. 15.

7  U.S. Const. art. 1, § 8, cl. 8.

8  Théberge v. Galerie d’Art du Petit Champlain Inc., 2002 SCC 34, at para. 30 (Can.).

9  Yen, supra note 2, at 249.

10  Hay & Hay Constr. v. Sloan, [1957] 27 C.P.R. 132, at para. 5 (Can.).

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276 Carys Craig

Implicit in this passage is the mistaken assumption identified by Yen: “[a]esthetic reasoning is subjective and indeterminate, while legal reasoning is objective and rigorous.”To the contrary,Yen argues, “judges necessarily show a preference for certain aesthetic perspec- tives when they decide cases because copyright law simply requires aesthetic choices.”11 Consider the need, when establishing copyright protection, to distinguish between artistic works and mere tools or “useful articles”; between “works of artistic craftsmanship” and basic craftwork; and between “sculptures” and any other three-dimensional product. Courts have denied making aesthetic judgments even when determining, for example, that furniture prototypes, while pleasing to the eye, are not works of artistic craftsmanship;12 that colored rods for teaching mathematics, while “attractive,” are not artistic works;13 that color-coded filing labels, while functionally useful, are none- theless artistic works;14 that costume helmets, although not actually useful, are not sculptures;15 that jewelry designs, while primarily for “visual effect,” might be more appropriately protected as “industrial designs”;16 and so forth.

Such determinations are not simply the mechanical application of legal rules or established precedent, but require the privileging of one interpretation over a competing alternative interpretation, one prec- edent over another. In efforts to avoid appearing to judge artistic merit, Yen argues, courts are actually choosing between different aesthetic theories on a case-by-case basis: they might ask whether contemplating the work produces an aesthetic response in people17 (aesthetic formal- ism); whether a work’s creator intended the work to satisfy an aesthetic interest18 (intentionalism); or whether a work has been recognized in the

11  Yen, supra note 2, at 250.

12  George Hensher Ltd. v. Restawhile Upholstery Ltd. [1976] A.C. 64 (H.L.) (U.K.)

13  Cuisenaire v. South West Imps. Ltd. [1969] S.C.R. 208 (Can.).

14  DRG Inc. v. Datafile Ltd., [1988] 2 C.F. 243 (Can.).

15  Lucasfilm Ltd. v. Ainsworth, [2011] UKSC 39.

16  Pyrrha Design Inc. v. 623735 Saskatchewan Ltd., 2004 FCA 423 (Can.).

17  See, e.g., Hensher, [1976] A.C. at 78 (Lord Reid stating “If any substantial section of the

public genuinely admires and values a thing for its appearance and gets pleasure or sat- isfaction, whether emotional or intellectual, from looking at it, I would accept that it is artistic although many others may think it meaningless or common or vulgar.”).

18  See, e.g., Cuisennaire v. South West Imps. Ltd. [1968] 1 Ex. C.R. 493 at para. 73 (Noel J. stating, “An artistic work, in my view, must to some degree at least, be a work that is intended to have an appeal to the aesthetic senses ... as an important or one of the important objects for which the work is brought into being.”); see also Hay & Hay Constr. v. Sloan, [1957] 27 C.P.R. 132, at para. 5 (per Stewart J.: “the tribunal should not attempt to exercise a personal aesthetic judgment but to consider the intent of the creator and its result.”).

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art world as art19 (institutionalism). Simply put, the selection between different approaches to identifying artistic works is, in itself, the expres- sion of an aesthetic preference.20

My point is not to decry the presence of aesthetic judgment in legal or judicial decision-making.The significance of recognizing the aesthetic judgments in copyright decision-making is to acknowledge the inevita- bility of aesthetic bias in copyright jurisprudence. ForYen, since “no aes- thetic perspective can be neutral and all-encompassing,”21 the goal is to increase awareness, to manage aesthetic subjectivity, to constrain bias, and to encourage open-mindedness. Moreover, by acknowledging that “aesthetically subjective decision making is the only possible approach in copyright cases,”22 we can appreciate the importance of identifying and critically evaluating the dominant, purportedly neutral aesthetic bias that has so fundamentally shaped the copyright system. If it is impossible for legal reasoning to separate copyright from aesthetics, the question is “not whether aesthetics should affect copyright law, but how.”23

This is a crucial question to ask when considering the capacity of copyright law to either enhance or limit cultural diversity. Building on Yen’s observations, John Tehranian explains that copyright’s aesthetic adjudications:

inextricably affect the type of works we, as a society, receive from our artists.... Even more fundamentally, however, aesthetic judgments can serve to both main- tain and preserve existing power structures.The seemingly neutral laws of copy- right, therefore, have the potential to create a hierarchy of culture that serves hegemonic interests.24

Copyright law does not protect everything. In choosing what to pro- tect, it favors certain forms of artistic and intellectual expression while it restricts or prohibits others. If these choices – these selective protections and prohibitions – are influenced by an underlying but largely invisible aesthetic bias, then a critical legal perspective demands that we ask who

19  See, e.g., Hensher, [1976] A.C. at 94 (per Lord Simon of Glaisdale: “the most cogent evidence [of whether the subject matter is a work of artistic craftsmanship] is likely to be from those who are themselves acknowledged artist-craftsmen, or from those who are concerned with the training of artist-craftsmen.”).

20  This degree of choice implies the kind of inherent subjectivity or discretion in judicial decision making that is denied or decried by legal formalists – and has been revealed and trumpeted by critical legal scholars. See John Tehranian, Towards a Critical IP Theory: Copyright, Consecration and Control, 2012 byu L. rEv. 1237 (2012).

21  Yen, supra note 2, at 251.

22  Id. at 301.

23  Id. at 251, fn. 14.

24  Tehranian, supra note 20, at 1280.

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it benefits and who it disproportionately burdens, and what role it plays in consolidating existing inequalities. More particularly, from a feminist critical perspective, we might ask: Does this aesthetic bias have masculin- ist underpinnings? Amy Newmann warns that “at least historically, aes- theticist thinking has been a vehicle for blatantly masculinist ideologies privileging a certain kind of aesthetic experience ... arising within male corporeality.”25 If this is so, we might reasonably suspect that copyright’s hidden aesthetics maintain and perpetuate a gendered vision of author- ship, creativity, and aesthetic worth.