Dissertation Prospectus: Phase Ones
Okay, for those who appreciate such things (me), a record, for posterity, of the first draft of my dissertation prospectus: it crunches and repurposes a variety of ideas and text from previous dissertation-related posts here. The chapter outline, which I hope is the final section of this thing, is still rough, so is un-appended. P.S.: Most sane humans will want to avoid reading this.
For the past several hundred years, the prevailing conceptual regimes of the West have treated human labor that contributes towards the creation of things called “texts” and/or “works of art” as different than other kinds of human labor. Why is this so? What are the historical origins of this tendency to differentiate cultural work from other kinds of labor? Why is cultural work so often at the forefront of conflicts over the introduction of new technologies? What can this story of the evolution of cultural work tell us more generally about the history of labor and capitalism in the US? In particular, what does the history of cultural work tell us about the changing rationalizations of why some human actions (such as the effective toss of a football, the expert application of bow to violin, or the cogitation of a Wall Street consultant) are worth so much, and why most other human actions are worth so little?
Thinking about these questions led me to my dissertation topic: the intertwined histories of intellectual property (IP) law, and cultural work in the US in the twentieth century. The finished work may not satisfactorily answer any of them, but it might shed some light on the implications of our decision to treat the contingent differentiation of cultural work from other kinds of labor as natural and eternal. Working through a series of case studies, I argue that modern US culture was powerfully shaped by the emergence of new legal ideas–-centered around updates of the older law of copyright––in the service of regulating and standardizing the commodification of ideas, expressive gestures, artistic performances, and speech acts. These legal developments spurred on the emergence of new types of cultural work and new conceptions of what it might mean to be a cultural worker.
Innovations in law also occasioned regular reevaluations of the relationship between work and the creation of value in the cultural sectors of corporate capitalism. I propose that conflicts over the propertization of cultural work took the shape they did because of the unsettled character of capitalism’s understanding of the sources of economic value. Lack of coherence in regard to questions of value powered a wide variety of disputes over the proper distribution of the values reaped from capitalist production. Culture––the domain of both priceless artifacts and mass-reproduced junk––served as a particularly electrified site of conflicts over the allocation of credit for the creation of value in capitalist commodities. What class blinders obscured in the case of a unit of pig iron or an automobile became legible to middle class eyes in the case of a mass-produced literary text, film, or piece of music.
Central to this dissertation is an argument concerning the central role of the state in shaping US popular culture. I have not always been convinced by the claim that the state needs to be “brought back in” to every analysis of US history, but this is a case where such scholarly correction is long overdue. If many areas of life in the US remained relatively autonomous from the state for much of US history, culture has been subject to state oversight and interference from the earliest days of the Republic. Copyright law has always been proximate, in legal discourse, to First Amendment jurisprudence, obscenity law, and censorship in the form of “police powers” regulations in the name of public health and morality. The archival record is clear on the intimate relationship between IP law and state regulation of culture, but cultural historians have been less attentive to this part of the story of US culture than one might expect (especially given the roots of contemporary cultural history in the New Left, a movement especially sensitive to state control of the media and libertarian in regard to lingering remnants of Comstockism within US obscenity law).
One of the reasons that copyright law has served as a site of state policing of culture is that copyright-based legal battles often revolve around the possibly harmful effects of new technologies. Under the cover of a looming crisis, the state has been able to legitimate its cultural interventions as proper exercises of its responsibility to monitor and control new technologies.
This brings us to the third argument proposed in this dissertation, which concerns the place of technological innovation in the growth of both US popular culture and IP law doctrine: to wit, the role of technology in IP law has been overdrawn and mischaracterized. Technology is an enormously important part of the IP story, but not the whole story. Most of the tensions that artists, cultural workers, corporations, and courts tried to sort out via IP law were products of long-running tendencies of modernity: especially the ambiguity inherent in the employment relation vis-a-vis the creation of value. The “newness” of new technologies often registers, in historical retrospect, as the least important element of a given legal conflict.
Moving from the dissertation’s central claims to questions of form and methodology: historiographically speaking, this dissertation is a study of US culture in the years between 1909 and the 1990s. There is no question that this is well-worn terrain. A host of excellent historical works precede me: so many of the best works of US history and American Studies, in fact, that I am tempted, even as I type this, to find a different topic. Bringing the history of IP law into this story, however, illuminates some dimensions of the cultural history of the modern US that otherwise remain hidden.
I draw much of my formal inspiration from the fields of American Studies and intellectual history, especially the writing of scholars like Andrew Ross, Michael Denning, Howard Brick, and James Livingston who labor in the seam between the two disciplines. Interdisciplinary projects by Lisa Duggan, George Lipsitz, Nayan Shah, Lauren Berlant, Michael Warner, Judith Halberstam, Cedric Robinson, and David Roediger, among many others, suggest that there are many varieties of historical writing, and that one need not track a single individual, institution, or movement to produce meaningful analysis. My intention is that this dissertation’s case studies, bookended with critical historical essays, will resonate with one another and form, in the end, a coherent narrative.
Following the lead of critical IP scholars who have sought to demystify and historicize the idea of the author, I suggest that we can learn a great deal by reading modern US cultural history as a chapter in the long-running conflict over the meaning of authorship and of the author/cultural worker distinction. The highly contingent differentiation of authorship from other forms of cultural labor, reified in law, has played the decisive role in the way that culture was made, received, and talked about over the course of the twentieth century.
At the same time, as Marxist and feminist labor scholars have pointed out, the meaning of “worker” has also changed a great deal over the twentieth century, with the key category of “skilled worker” (into which most cultural workers, whether granted or deprived the privileges of authorship, have tended to fall) subject to a particularly charged brand of volatility. In contests with corporations and the state, these shifting boundaries have served, at different times, as both strategic strengths and weaknesses for the various organizations that have sought to advance cultural workers’ interests.
Viewing US cultural history through the lens of IP law does not, of course, change everything we know about modern US cultural history. 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. As evidenced in legal decisions, academic articles, Congressional hearings––and, I argue, in popular culture itself––lawyers, judges, corporations, and cultural workers really did fight about the meaning of culture and value, motivated by material interests, ideological commitments, and curiosity or anxiety regarding the limits of acceptable cultural expression. Treating these sources as an expanded archive of cultural history generates a historical narrative that complicates the more familiar themes of cultural history and sociology: the transition from Gemeinschaft to Gesellschaft, or the various tales told of rising anonymity, alienation, anomie, desacralization, reification, and commodity fetishism.
At the same time, this dissertation also seeks to intervene in the literature on the history of IP law. 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. 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 “rarely have anything to say about the multitude of jobs and livelihoods affected by the judicial treatment of IP-based assets and new technologies,” and tend to ignore that “efforts to regulate or propertize new technologies have the potential to drastically alter the landscape of work.”
Reading modern US cultural history through the lens of IP law and with attention to changing author/cultural worker distinctions, we can better understand the shock presented to the traditionally-minded by the explosion of commercial culture in the twentieth century, and the dynamic growth of the economic sectors in which cultural workers found employment. Throughout the early part of the century, the cultural sector was an incubator of new categories of productive work. The maturation of urban working class culture and advent of technologies of mass reproduction, in conjunction with the emergence of a variety of popular culture practices, produced armies of skilled workers whose economic function was to create or recreate cultural texts. 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 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 IP 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 artistic “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.
IP, Authorship and Cultural Work
For most of the history of capitalism, the notion of “intellectual property” would have registered as contradictory, with the term “intellectual” coming immediately into conflict with the term “property.” “Property” named concrete and material objects over which individuals possessed legal rights of ownership. While earlier conceptions of property continued to haunt capitalism via the ghost of feudal common law (such that immaterial property rights over intangibles like “ancient lights,” the homeowner’s right to prohibit his neighbor from blocking access to sunlight), nineteenth-century capitalism was rooted in the notion that property law covered the world of things, not ephemeral phenomena like ideas and speech. Additionally, in the US, the reigning ideology governing the potential propertization of intellectual intangibles favored a notion of the “public” that strongly discouraged any attempt to enclose the intellectual commons. The law assumed, for example, that speeches made in public fora were “dedications” to the public that could not be retroactively claimed as personal property. And for a variety of reasons, prior to the wave of corporate consolidations in the late nineteenth century, the propertization of speech and ideas was not seen as a particularly promising route to commercial success (not the least significant of which was the fact that the US publishing industry made most of its money by reprinting––what today would be called “pirating”––European texts).
In the US, the notion of IP began to be concretized in the post-Civil War era, as part of the intellectual revolution that accompanied the rise of corporate capitalism. Along with the “corporate personhood” inscribed in post-Santa Clara 14th Amendment jurisprudence, the Gilded Age-era propertization of intangibles like corporate reputation, the growth of a futures market around the Chicago Stock Exchange, and the marginalist creation of the notion of “mental labor” to describe the value inputted by managers, engineers, and owners to the production process, IP doctrine reflected a new sensibility and accommodation of the realities of life under capitalism. As a set of fictions no more “real” than the other innovations enumerated above, IP was at every turn also subject to any number of both commonsense and theoretical challenges.
Like IP, the linguistic constructions “cultural work” and “cultural workers” would also have registered as a contradiction until recently. This has been true in both “top down” and “bottom up” articulations. For hundreds of years, elites have seen the domains of “culture” and “work” as diametrically opposed to one another. Over the same period of time, working people have tended to view the activities and practices that began in the nineteenth century to be called “culture” as opportunities for escape from the drudgery of labor.
“Culture,” in the most powerful strain of Western ideology, is 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.” 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 intellectual tradition, “cultural work” figures as a series of contradictions and paradoxes, premised upon the fact that the Protestant work ethic–capitalism’s most influential creed–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 labeled “trash” or “kitsch”? In much the same way that marginalist economists 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, some modern visions of “cultural work” have sought 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 Protestant work ethic-driven conception of cultural work retained 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 were 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-à-vis the real circumstances under which people make and consume cultural commodities. It can also 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/ cultural 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.
As mentioned above, there are “bottom-up” as well as “top-down” versions of this historical tendency towards the treatment of “culture” and “work” as mutually antagonistic. An important version of this utopian strain of thinking about culture and work was forged in working-class communities over the course of the twentieth century. Culture, in this articulation, constitutes a portal to fantasies about escape from the routine and spatial and temporal restrictions of the working day. Tellingly, the early comedies and melodramas of Hollywood’s “dream factories” were often built around the travails of characters trying to break into, or employed by, the culture industries. In post-World War II popular culture, the worlds of acting, music, and professional sports have often been pictured as spaces of fantasy, with the new celebrities associated with these fields positioned as idols who are admired as much for their freedom from a 9-to-5 grind as for their glamour and personal fortunes. Such fantasy constellations serve obvious ideological purposes, and also obscure the reality of cultural work, which has tended to be as grueling and precarious as any other forms of skilled labor. At the same time, the culture of celebrity worship also speaks to widespread worker dissatisfaction and proletarian dreams for more free time and the resources with which to live a creative life. The central fact remains, however, that these complex mediations are premised upon, and reaffirm, the separateness of “work” and “culture.”
Doing IP Law/Cultural History as Labor History?
This reflection upon the “work” part of cultural work leads to the question of how this project engages with the labor history. I come to the study of IP law and modern cultural history via the field of labor history, and much of my training and reading has been in labor history and labor-related research in law and the social sciences. I take my model for doing politically relevant and committed scholarship from labor historians like Nelson Lichtenstein, Joshua Freeman, Dana Frank, Robert Korstad and Jacqueline Dowd Hall, and from the earlier generation who pioneered new labor history: David Montgomery, David Brody, and Harry Braverman. If it has taken over ten pages, however, to arrive at labor history, one would not have to be a trained detective to guess that my relationship to traditional labor history is somewhat vexed, or at very least conflicted. It seems worthwhile to attend briefly to this (I hope productive) tension.
One cannot help but note that these are strange times to be a student of US labor and working-class culture. The labor movement itself, battered by a neoliberal anti-union offensive almost forty years old, is in terrible shape, with stunningly low rates of union density and weak popular support for collective bargaining rights. Modern labor studies, brought into being after World War II by a generation of ex-CP activists-turned-historians, and nurtured by several waves of New Left scholars in the 1960s, 1970s, and 1980s, finds itself searching and uncertain within the present crisis of the humanities, itself a product of a more general crisis of the university. What labor studies means is also changing: research on working-class culture occupies a decreasing portion of labor historians’ energies, and with the rise of interest in the history of the Right, it is now common for graduate students in labor history to know more about the lives and careers of Westbrook Pegler and William F. Buckley than those of Sidney Hillman and Big Bill Haywood.
Changes in the character of capitalism have also shaped the research agenda of labor studies, although we are still only slowly coming to terms with the fact that mass factory labor may have been but a brief phase, rather than the paradigmatic form, of work under capitalism. While the emergence of a “new economy” in the 1980s and 1990s, predicted in the works of Charles Sabel, Michael Piori, and Robert Reich, never panned out as a utopian project, there is no question that things are different now than they were in the early 1970s, when labor history took off against the background of the blue-collar “revolt against work” and the dramatic showdowns at Lordstown and other sites of neo-syndicalist workers’ control movements. Developments in contemporary labor studies necessarily reflect changing circumstances, particularly the epochal decline of manufacturing and rise of the service and technology sectors, and the parallel shift from heavy industry to the FIRE sector as the center of global capitalism.
As the role played by human exertion in the accumulation process grows ever more occult—can anyone say what part is played by the working body in the creation of wealth out of derivatives, credit default swaps, and sovereign debt?— labor studies has increasingly come to overlap with the new historiography on capitalism. In the wake of the financial crisis of 2007-2008, even the most self-confident free market economists (Alan Greenspan, for example) have had to admit that they do not really understand the current relationship between the production of goods and services, labor markets, property rights, prices, and speculative activity. With access to theoretical tools scorned by their neoclassical colleagues—class analysis, theorization of ideology, and a critical political economy derived from Keynes and Minsky, as well as from Marx—some Left scholars have produced compelling and revelatory accounts of recent developments in the global market. But it is safe to say that even on the Left, we are all subject to the same sense of bewilderment evident in any issue from the past several years of The Economist, The Financial Times, or The Wall Street Journal. Strangest of all, we often find scholars on the Left expressing nostalgia for the “good old days” of Fordism and bureaucratic unionism, a symptom of deep frustration with our collective inability to think coherently about the relationship between labor and value in the current phase of capitalism, and anxiety about our deadlock in imagining a “point of production” labor politics that might revitalize collective bargaining agencies and reverse the trend towards extreme economic inequality.
At the same time, my account thus far of the last several decades is incomplete—misleading, even—in its pessimism. As scholars like James Livingston and Michael Kazin have recently suggested, the US has steadily moved to the Left, culturally and intellectually, since the election of Ronald Reagan. If the US’s political culture and the tenor of everyday life does not always provide supporting evidence for Livingston and Kazin’s arguments, however, the same cannot be said about academia. In the humanities, the past thirty years have seen an extraordinary flowering of left-wing inquiry, critique, and research, often under the banner of “theory” or in concert with “postmodernism” and “poststructuralism,” and most powerfully in concert with the emergent fields of Black and ethnic studies, postcolonial studies, feminist and queer studies, and the interdisciplinary study of popular culture, everyday life, and power. Parallel to these developments, critical practices in art, music, and literature have broadened the collective investigation into what capitalism is and how capitalism works, far beyond the parameters of an older radical tradition that long insisted on the sufficiency of the metaphor of base and superstructure as a guide to the complex interaction of a mass media-driven ideological apparatus, the capitalist state, and the accumulation process.
Displaced from its perch at the center of Left activity in the humanities, mainstream labor studies did not always welcome the emergence of theory-driven scholarship, although it steadily assimilated many of the generative and forceful works of scholars like David Roediger, George Lipsitz, Robin D.G. Kelley, Mike Davis, and Michael Denning, all of whom drew—in different ways and with unique emphases––on the legacies of British cultural studies, French post-‘68 philosophy, and new developments in postcolonial critique, feminism, psychoanalysis, and political theory. The debates between old guard and whippersnappers over the degree to which labor studies would tolerate the injection of new terms, methodologies, and framing strategies drawn from this great upsurge of radical thought often seemed designed to force scholars to take up arms and choose sides. No small amount of intergenerational conflict, and lingering antagonisms over the degree to which labor studies (and the labor movement) should remain fixated on the persona of the white male worker, worked their way into fights over the direction of both labor studies, and the labor movement.
The situation in labor studies is now quite different than it was in the late 1990s. There is no longer any stigma now attached to drawing upon difficult theoretical ideas—in fact, labor scholars are now required to have some fluency in Foucault, post-Marxism, feminist, queer, and postcolonial literatures––and no one would today defend a labor history syllabus centered exclusively around white male workers in the formal economy. At the same time, there has been a marked retreat from the kinds of scholarship to which the insights of the broader Left humanities project might most powerfully speak. In its place, a new institutionalism, in many ways a revival of the old Commons school labor history, flourishes: new legal, political, intellectual, and business-historical studies of labor abound while older models, like the community study and “bottom-up” history, fall into obsolescence.
There is a danger in this changing direction of labor studies of losing the baby with the bathwater. The “baby,” in this case, would be the rootedness of labor studies in a particular radical intellectual legacy, a centuries-long inquiry into the peculiar ramifications of treating living labor as a commodity, of buying and selling the sovereignty of the working body for discrete periods of time. In other words, while the influence of Marx can be felt today in various applications of a critical political economy to commodity flows and business cycles, we seem to be growing ever more distant from Marx’s concerns with the contradictions of a capitalist ideology that wants—but never can have––both liberal personhood and the commodification of labor power (which entails, necessarily, the submission of the worker’s will to the desires of the capitalist manager).
The exception to this trend towards institutionalism and away from study of the contradictions of the capitalist labor process is found in feminist labor literature, which is also the site of the most exciting cross-pollinations of work-centered history/ethnography and cultural and critical theory. As I have worked through recent feminist labor literature, particularly regarding the devaluation of “women’s work” and the construction of domestic and reproductive labor as non-remunerative, I have become aware of possibilities for foregrounding, rather than putting aside, nagging questions regarding the instability of the conceptual regime that regulates the relationship between work and value. Drawing inspiration from feminist labor studies, and from the longer tradition of theory-inflected labor history, and in a moment wherein the direction of labor history seems uncertain, now may be a very good time to pose the question of how we have come to think about basic categories like skill, value, and the division of labor.
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).
 Andrew Ross “Technology and Below-the-Line Labor in the Copyfight over Intellectual Property,” American Quarterly, 58.3 (2006), 745.
 Michael Denning, The Cultural Front, 42.