Let’s All Write a Dissertation, Part 5.a.
This dissertation traces the intertwined histories of intellectual property (IP) law and the idea of cultural work in the US in the twentieth century. I begin by noting that within the tradition of Western aesthetics and politics, “cultural work” usually registers as a contradiction, sometimes as an anomaly, occasionally as a utopian fantasy.
“Culture,” in the most powerful strain of the Western tradition, is figured as the opposite of work, the time of reflection rather than active engagement with the material world, the product and reward of freedom from toil, the domain of “genius” and sublimity, the polar opposite of the debased world of hands and muscles, spreadsheets and “filthy lucre.” Until very recently, those whose work in the production of culture could not be forgotten or pushed out of consciousness, like stage actors, have usually seen as roughly equivalent to prostitutes, dissimulating for money: necessary evils, but evils nonetheless. Most importantly, this dominant strain of thinking about “culture” and “work” as separate and mutually antagonistic contributed to, and continues to feed off, the invention of the modern “author” as a legal, commercial, and aesthetic persona. Following the creation of the “author,” all considerations of the labor politics of cultural production have come down to the distinction between those whose work qualifies as “authorship,” and those whose work does not.
In another strain of the Western tradition, “cultural work” figures as a series of contradictions and paradoxes, premised upon the fact that capitalism’s creed, the Protestant work ethic, demands that all worthwhile endeavors, including the making and appreciation of art, be conceived of as species of work. Otherwise, would “culture” not simply be the name for the distractions and trifles linked with idleness and repose, the great enemies of enlightened or spiritual life? How else should we understand the process through which art that seems to demand no active engagement on the part of the audience is automatically labelled “trash” or “kitsch”? In much the same way that marginalist economist accommodated the demands of the capitalist bourgeoisie for an account of their activities that did not render them parasitic in the eyes of the Protestant work ethic (by creating the category of “mental labor” to describe the value added by managers, engineers, and owners), some modern visions of “cultural work” seek to free the reader, viewer, or listener from the guilt incurred by spending time non-productively by turning that time into a form of active labor, leveling the distinction between sender and receiver. Such a view, of course, obscures the specific material conditions under which culture is produced. More importantly, by generalizing the category of cultural work, it renders the worker seeking to profit from art an illegitimate opportunist or profiteer: if culture names the time and space of a certain kind of productive non-productivity, it would be a breach of the rules for any of the participants to turn such activities into the stuff of a profane day job. In line with new visions of “national culture,” and the rise of a separate aesthetic sphere, this conception of cultural work retains the earlier, aristocratic insistence upon clear boundaries between culture and the market, while mystifying even further the processes by which cultural texts are created in the first place.
A third strain of Western thought identifies “culture” with a utopian, non-alienated form of labor (sometimes recovered form an imaginary Middle Ages) that might be recovered from the empty realm of reified rituals performed for money under capitalism. William Morris and John Ruskin are the most famous exponents of such a view, although it is also a regular theme in the works of Marx, and has been picked up by a variety of Marxist movements over the years, most recently in the works of autonomist Marxists. While I am much more favorably disposed to this view of cultural work than the previous two, I recognize that it is equally problematic in its juxtaposition of “culture” and “work,” even in the name of their utopian merger at some point in the future. In the here and now, such a perspective can be just as mystifying vis-a-vis the real circumstances under which people make and consume cultural commodities, and can serve as a warrant for an elitist critique not only of popular culture, but also of the intelligence and ingenuity of all workers in capitalism, who find countless ways to make their jobs more livable, interesting, or humane, and who also sometimes find community and varieties of satisfaction in proletarian work. Finally, the utopian take on cultural work is usually unsophisticated in regard to the “author”/”worker” distinction, owing in part to its roots in an English nationalist Medievalism. Nostalgia for a more immediate relationship between makers and consumers has also led to a kind of left asceticism and anti-modernism among some utopians. Following James Livingston’s lead, I would suggest that the pragmatic experiments of cultural workers within the field of twentieth-century cultural capitalism provide a much more promising path towards an authentically socialist culture. Such a culture would not be premised upon subservience to the curious construct of the “author,” but neither would it be tied to the limiting visions of Morris, Ruskin, and the various folk preservation and heritage movements they inspired.
With these three visions of cultural work in mind, we can better understand the shock presented to the traditionally-minded by the explosion of new forms of commercial culture in the twentieth century, and the dynamic growth of the economic sectors in which new forms of cultural workers found employment. Throughout the early part of the century, the production of culture was increasingly generating new types of cultural work and cultural workers. The maturation of urban working class culture and advent of technologies of mass reproduction, in conjunction with the emergence of a variety of new forms of popular culture, produced armies of skilled workers whose economic function was to create or recreate cultural texts. At the same time, US culture became increasingly urban, modern, ethnically diverse and polyglot ; capitalist entrepreneurs seized upon the seemingly infinite number of “market opportunities for the commodification of both high and vernacular cultural works into mass reproduced products” ; and perhaps most importantly, a host of new technologies created demand for what we would today call “content”: scripts for radio and film, music for phonographs and radio broadcasts, performances for vaudeville shows and nightclubs, and copy for the growing field of advertising.
Helping along this tendency was the rise of new intellectual property laws that recognized popular culture as a valid object of copyright law. In 1909, Congress passed a revision of the Copyright Act of 1790 (granting Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”). The 1909 Copyright Act revision created a corporate-friendly intellectual property regime, awarding most authorship rights automatically to publishers rather than creators. It also provided a “royalties” mechanism that allowed for multiple versions of popular songs, plays, or films to be produced without violating the law—a spur to the massive expansion of culture industries based on the mass production of cultural commodities . The changes to the US copyright regime ushered in with the 1909 revision built upon earlier copyright rulings by Oliver Wendell Holmes, Jr., who brought the framework of American Pragmatic philosophy to bear upon the question of whether and in what way new forms like photographs, promotional posters, and film adaptations of literary works ought to be considered “texts” under the purview of copyright law. The combined thrust of the 1909 revision and Holmes’s Supreme Court precedents was the opening up of copyright protection for works and forms of expression radically unlike the books, maps, and charts that the original Copyright Act’s authors sought to protect.
This meeting of these cultural-, labor-, and legal-historical tendencies, then, constitutes the event I seek to make sense of in my dissertation. Many excellent historical works precede me in this endeavor: so many of my favorite works of US history and American Studies, in fact, that I am tempted, even as I type this, to find a different topic. Largely missing from these works, however, is much consideration of how the “author”/”cultural worker” distinction played out in the making of 20th century popular culture in the US, and of how IP law (especially copyright law) shaped the labor history and political economy of vernacular music, the Hollywood movie industry, and the post-Armory Show art world. I do not argue that adding the IP law/cultural work dimension changes everything we know about modern US popular culture; in many cases, established interpretations are strengthened, rather than challenged, by looking at the nexus of copyright and labor politics. Nevertheless, I think that such an approach helps us to appreciate the intimate relationship between law, the state, and culture that is often under-emphasized in cultural history, if it is acknowledged at all. Such a perspective helps reveal racialized and gendered dimensions of cultural history that might otherwise go unnoticed, and provides an archival anchor to discussions in intellectual history regarding conflicts over changing values that are often depicted as abstract, spiritual events in the heavens of ideas. Lawyers, judges, corporations, and cultural workers really fought about these things, motivated by material interests, ideological commitments, and curiosity or anxiety regarding the limits of acceptable cultural expression. These battles were recorded in legal decisions, academic articles, Congressional hearings, and, I argue, in popular culture itself.
At the same time, this dissertation also seeks to intervene in the literature on the history of IP law in the US. With several notable exceptions, IP scholars have been largely uninterested in the labor history dimension of IP history. This tendency reflects the larger trend of scholars and commentators ignoring the labor implications of controversies surrounding IP’s present and future, as well. Andrew Ross notes that workers are often excluded from discussions of intellectual property policy because employment contracts guarantee that workers cannot be litigants in legal disputes. Even on the Left, legal analysts therefore “rarely have anything to say about the multitude of jobs and livelihoods affected by the judicial treatment of IP-based assets and new technologies.” Frequently adherents of a rigid “copyright libertarianism,” these analysts tend to ignore labor issues in favor of a preoccupation with the freedom of consumer choices. Ross suggests that we ought to acknowledge that “efforts to regulate or propertize new technologies have the potential to drastically alter the landscape of work.” (Andrew Ross “Technology and Below-the-Line Labor in the Copyfight over Intellectual Property,” American Quarterly, 58.3 (2006), 745).
 Important studies of working-class cultural leisure include Kathy Peiss, Cheap Amusements: Working Women and Leisure in Turn-of-the-Century New York (Philadelphia: Temple University Press, 1986), Nan Enstad, Ladies of Labor, Girls of Adventure: Working Women, Popular Culture, and Labor Politics at the Turn of the Twentieth Century (New York: Columbia University Press, 1999); Roy Rosenzweig, Eight Hours for What We Will: Workers and Leisure in the Industrial City (New York: Cambridge University Press, 1983); George Lipsitz, Rainbow at Midnight: Labor and Culture in the 1940s (Urbana: University of Illinois Press, 1994), and Time Passages: Collective Memory and American Popular Culture (Minneapolis: University of Minnesota Press, 1991);and Susan Porter Benson, Counter Cultures: Saleswomen, Managers, and Customers in American Department Stores, 1890-1940 (Chicago: University of Illinois Press, 1986).
 Michael Denning, The Cultural Front, 42.
 From 1920 to 1950, the number of teachers almost doubled (29,000 to 56,000). Denning notes that artists and art teachers increased by 137 percent (from 35,000 to 83,000), editors and reporters by 138 percent (from 39,000 to 93,000), athletes, dancers, and entertainers by 140 percent (from 48,000 to 115,000), and authors by 143 percent (from 7,000 to 17,000). Librarians and college professors almost quadrupled, and miscellaneous intellectuals multiplied by 15 (from 20,000 to 302,000). The only group of cultural workers that did not grow was “musicians and music teachers,” whose numbers increased from 130,000 to 166,000 (28 percent). Nevertheless, musicians remained the largest single group of artists. As a consequence of this growth, roughly two million Americans were employed in the cultural apparatus in 1950. Michael Denning, The Cultural Front, 49.