One of them, Baker v. Selden , constructs that dichotomy through reference to an extra-judicial understanding of the literary as a relatively narrow category of cultural production comprising writings whose artistic merit renders them, among other things, somehow less useful. The other, Stowe v. Thomas , relies on a very different, but also extra-judicial understanding of literary authorship that depends upon drawing parallels, as opposed to distinctions between literary and technological invention.
The Congressional decision effectively to overrule Stowe v. It certainly marks what many have argued was the beginning of a long legislative turn away from the original policy concerns of the Intellectual Property Clause, and a redefinition of authorship and copyrightable subject matter in accordance with more conventional notions of genius, creativity, and artistic merit. The Supreme Court, however, took the opportunity in Baker v.
Law and the Humanities : Austin Sarat :
Selden to breathe life back into the idea-expression dichotomy, or at least put it on life support. When we read Baker v. Selden as a response to the act, we see how, in order to accommodate both the original intent behind the Intellectual Property Clause and to make room for the emerging definitions of authorship and creative production that helped to produce the new copyright legislation, the Baker v. Selden Court split the baby. Selden ]. This narrow definition of the literary is implicit in how the idea v. In scientific and technical literature, the distinction between idea and expression is relatively clear.
Section b ]. In the latter category of literary objects addressed by the Court in Baker v. Selden , which includes things like poems and novels, however, the distinction between idea and expression was and still remains less than clear. This extension of coverage provides the basis for precluding unlicensed creation of sequels to and adaptations of a literary work.
Not surprisingly, though, courts have trouble drawing the line between artistic expression and the public domain, or perhaps the collective unconscious, in some cases. In two cases involving the Pixar animated film Monsters, Inc. By announcing copyright coverage is potentially broader for what we might, purely as a matter of convenience, call high, or creative literary works, Baker v.
Digital Humanities and Copyright Law Like the idea-expression dichotomy, the fair use doctrine creates breathing room for the public domain in U.
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In many cases, though, judicial descriptions of fair uses have effectively limited literary scholars to what Latour has identified as the tools of critique. These formal expectations operate hand in glove with a very narrow understanding of what literary scholars may do with the work they study. Rather than using pre-existing material to build or create, literary scholars are expected to limit their work to dissecting, examining, commenting, discussing. Selden , the fair use analysis works against them. Digital humanists have already begun to reconfigure the literary as a category by considering whether using literary objects as building blocks for archives and exhibits designed to preserve, display, and study them can be considered an act of literary scholarship.
In the nearly years since Baker v. Selden was decided, continued application of the useful v.
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This distinction comes into play perhaps most clearly in cases involving a fair use defense to a claim of copyright infringement. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
Section codifies a long line of case law that originated in with Folsom v.
Marsh , 9 F. Section ] — does not control whether something is or is not a fair use. In every case, courts must apply the four factors, along with any other factors they consider relevant to making a fair use determination. Nevertheless, in practice, the preamble sets a sort of aesthetic standard informing judicial application of the four-factor test. Under the law as it has been interpreted and applied, creative, artistic works get a high level of copyright protection in the fair use analysis.
They are also less likely to be viewed as fair uses. So, for example, in Suntrust Bank v. Houghton Mifflin , F. Where engagement with a belletristic idea of the literary — its definition, its utility in defining legal concepts, its implicit presumptions about the relationship between art and utility — remains largely in the background in Baker v.
Thomas , in Suntrust v. Houghton Mifflin we see the court engaged in an explicit attempt to define and apply literary terminology. The fair use determination turns upon how the court weighs in regarding an ongoing debate in literary studies and in copyright case law about the difference between parody and satire: For purposes of our fair-use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work.
Where parody is generally considered to be a fair use, satire is not. In this passage, the court struggles, as a number of courts have, with a literary distinction that has important legal consequences. Houghton Mifflin ]. That narrow definition of literary scholarship only applies, however, when the allegedly infringing work itself looks suspiciously like a belletristic literary object.
Law and the Humanities : An Introduction
In the first category are literary things that are generally considered to be fair uses, things like scholarly articles. Perhaps even more troubling, it describes the relationship between literary scholarship and its object as a fundamentally hostile one: A parody is a work that seeks to comment upon or criticize another work by appropriating elements of the original.
If this is the case, then digital humanists have a vested interest in the ongoing debate regarding the evolution of international copyright law. We need to ask ourselves whether or how we should reconfigure or even continue to deploy questionable aesthetic categories the law preserves like flies in amber when talking about the work we do as digital humanists.
Perhaps one of the most important things we gain from understanding how courts have drawn upon and engaged with the literary as a category when interpreting and applying copyright law, is a better sense of just how much is riding upon the outcome of academic debates regarding the future of humanistic inquiry and scholarly communication. As a practical matter, preservation within the academy of traditional aesthetic and functional distinctions between literary objects and literary scholarship, between technological innovation and artistic creation, between composition and critique, will facilitate the continued preservation of those same distinctions within US copyright law.
That in turn will mean that, under the law at least, all objects of study will not be available in the same way to the same kinds of activities. Perhaps that is a good thing. Modern literary artifacts would continue to be amenable only to relatively traditional methods, though. Preserving the old categories in the law and within our disciplines would help to perpetuate a legal as well as a professional distinction between acceptable or legal uses of literary work in scholarly study and disfavored or illegal unless licensed uses.
Yet even as judicial interpretations of U. Just as digital and traditional humanists alike have called into question the criteria used to distinguish high from low or creative from technical literary artifacts, so too have U. Courts in a number of recent cases building upon the decisions in Kelly v. Arriba Soft Corp. Dorling Kindersley Ltd. Thus, in the case of Blanch v. Koons , F. As we recently explained,. Throughout its holding, the court in Koons implicitly reaffirms and recognizes the production of aesthetic pleasure is just one among the many important and useful social functions performed by art.
The decision in Blanch v. Koons has drawn both praise and criticism, and I do not want to suggest it represents, even seven years later, a normative standard guiding judicial application of U.
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As digital humanists make the argument in promotion and tenure review that humanities scholarship does not have to look like traditional journal or book publication in order to do similar scholarly work or benefit the public in substantial and meaningful ways, a positive legal response to that argument would seem to provide yet another source of authority on which we can rely.
After all, as a practical matter, the people making the argument and convincing judges are, in fact, often our colleagues in academia, filing briefs as friends of the court in significant cases, or working as expert witnesses hired by the parties or as special referees appointed by the court. One has to wonder why we have been relatively successful in making this argument outside of the academy in high-stakes copyright litigation, but still sometimes face substantial opposition within our own academic departments. These same legal resources would unquestionably be of value as we attempt to refashion institutional policy regarding fair use and copyright matters.
Speaking more broadly, I hope this discussion of U. In , however, in a round of federal rulemaking under the DMCA, libraries and producers of fan culture secured significant regulatory clarifications to facilitate their continued work [ Schofield ] [ Section , Title 17 ].