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A Gourmet’s Copyright

From today’s NYT op-ed on the closure of Gourmet magazine, I extract some comments that seem relevant to copyright law and policy:

The shuttering of Gourmet reminds us that in a click-or-die advertising marketplace, one ruled by a million instant pundits, where an anonymous Twitter comment might be seen to pack more resonance and useful content than an article that reflects a lifetime of experience, experts are not created from the top down but from the bottom up. They can no longer be coronated; their voices have to be deemed essential to the lives of their customers. That leaves, I think, little room for the thoughtful, considered editorial with which Gourmet delighted its readers for almost seven decades.

To survive, those of us who believe that inexperience rarely leads to wisdom need to swim against the tide, better define our brands, prove our worth, ask to be paid for what we do, and refuse to climb aboard this ship of fools, the one where everyone has an equal voice. Google “broccoli casserole” and make the first recipe you find. I guarantee it will be disappointing. The world needs fewer opinions and more thoughtful expertise — the kind that comes from real experience, the hard-won blood-on-the-floor kind. I like my reporters, my pilots, my pundits, my doctors, my teachers and my cooking instructors to have graduated from the school of hard knocks.

The piece concludes with an anecdote about Julia Child that may explain, in part, what I understand to be her lack of sympathy for the project that was dramatized in the “Julie & Julia” motion picture.  Julia Child wasn’t a food snob.  She was a snob about discipline.

Among law professors, Rob Merges has been especially vocal of late in his exploration of the proposition that a signal function of copyright law is to sustain a sector of professional creators.  I think that he is on to something, although I think that the argument goes too far if it concludes that the point of the law is to ensure that professional creators are economically independent.  I do think, increasingly, that a major purpose of the law (copyright law) is to ensure that creative “works” are the products of what might be called “structured” or “disciplined” creativity.  This is not the only way that we might imagine that the law might lead to the “encouragement of learning,” in the sense of the Statute of Anne, or “progress” of science and useful arts in the sense of the American Constitution, but I am persuaded both that it is the sense that was intended by the producers of the earliest copyright legislation and that it is the sense that makes sense of and draws together both sides of modern copyright law — the side that is reflected in exclusive rights for the copyright owner, and the side that is reflected in exceptions, limitations, and exclusions, notably fair use, in the proto-economic framework that just about everyone agrees really lies at the heart of the matter.

That judgment is deeply conservative and it is in tension, obviously, both with the “anything goes” spirit of Feist, Burrow-Giles, and Sarony and with contemporary excitement over “remixed” and “transformative” creativity and what is mistakenly referred to as “user generated content.”  I like “remixes” and “transformative” creativity and UGC (though I hate that phrase; is there a better one?).  I’m thinking about how to accommodate them in copyright’s proto-economic framework, and I’m coming up empty-handed.

One way out would be something like this:  Feist, in burying sweat of the brow arguments in copyright, inadvertently gave them life.  What do I mean?  Feist justifies treating art of marginal value as legally valuable.  Why does it do that?  It’s not plausible that a “minimally” creative work offers significant social value over and above its source material; it’s not plausible that the incentive of copyright, whatever that incentive might be, is needed to encourage creation of “minimal” advances or differences.  It’s not persuasive that the Court concluded that copyright should simply punt when it comes to judging what creativity the law wants; there are too many other places in copyright where the law does precisely that.

When we’re talking about structured or disciplined (or even professional) creativity, little of that matters.  But when it comes to “transformative” (i.e., amateur and one-off creativity), then we’re putting the “minimal” in Feist’s minimal creativity” standard, not just in the “trivial differences” sense but also, and importantly, in the “lousy art” sense.  If that material is legally valuable, then it seems to be the precisely the non-economic value of (and reasons for) remixes and so forth that should be recognized and protected by the law.  We need to value the creator, or the expressive value of the creator’s effort, for reasons that have little to do with the conventional proto-economic understanding of the law.

How?  Do we then (i) expand the “big tent” of copyright justifications (though it’s pretty difficult to say that we should simply throw over Feist!), or (ii) look to non-copyright justifications?

Suggestions and corrections would be welcome.