“The Taste of Any Public Is Not To Be Treated With Contempt” Part One

“NOT ELEEMOSYNARY”

The word “eleemosynary” is seldom encountered in modern English. It derives from Medieval Latin, and means: “Of or pertaining to alms or almsgiving,” or “Of the nature of alms; given or done as an act of charity; gratuitous.” Interestingly, the Oxford English Dictionary highlights as significant the appearance of “eleemosynary” in Charlotte Brontë’s Shirley, published in the (not un-meaningful) year of 1849: “Eleemosynary relief never yet tranquillized the working-classes.”[1]

I became curious about the word “eleemosynary” while researching Oliver Wendell Holmes, Jr.’s decision in the 1917 case Herbert v. Shanley Company.[2] Writing about musicians performing in a hotel dining room, Holmes insists: “The defendants’ performances are not eleemosynary.” Rather, these performances are “part of a total” for which the public had paid. The broader context was Herbert v. Shanley‘s question of “whether the performance of a copyrighted musical composition in a restaurant or hotel without charge for admission to hear it infringes the exclusive right of the owner of the copyright to perform the work publicly for profit.”

Holmes’s pithy and elegant decision has not suffered from lack of scholarly attention, and Herbert v. Shanley remains part of the Intellectual Property Law curriculum. It is mysterious, however, that so little has been written about Holmes’s use of the strange term “eleemosynary”––or, more precisely, the litotic form of “not eleemosynary.”

The formula “not eleemosynary” interests us here especially because it speaks to the legal legitimation of the cultural worker in the Wilson Era. On closer examination, it becomes clear that Holmes’s declaration that cultural work is “not eleemosynary”––which implies, at the same time, that cultural work cannot be subsumed entirely under the aegis of capitalist labor––consolidated several decades of jurisprudential innovation. It hastened the absorption of a cultural worker-staffed “show business” within the infrastructure of twentieth century corporate capitalism.

Herbert v. Shanley

Herbert v. Shanley consolidated two different appeals launched years earlier by interested parties that hoped to force the Supreme Court to clarify a particularly cloudy area of law. The first appeal concerned a plaintiff who owned the copyright to the march entitled “From Maine to Oregon.” When an orchestra performed “From Maine to Oregon” in the dining room of the Vanderbilt Hotel––”for the entertainment of guests during meal times, in the way now common”––the plaintiff sued the hotel for copyright infringement. The district court held that this was not a “performance for profit.” The appeals court reversed this decision. It fell to the Supreme Court, then, to weigh in on this question of what, exactly, the dining room musician contributes to the restaurant owner’s profits. [3]

The second appeal was launched by the popular songwriter Victor Herbert, a longtime copyright warrior. Herbert had earlier published the song “Sweethearts.” To entertain its diners, the Shanley Company, which ran a popular restaurant on Broadway in New York, hired professional singers, along with an orchestra. On one evening, these singers included Herbert’s “Sweethearts” in their program. Herbert sued for copyright infringement. The lower courts had focused in particular on the question of whether the sale of tickets for admission was required in order to effectuate a “performance for profit.”

Holmes picked up on this theme in his ruling. “If the rights under the copyright are infringed only by a performance where money is taken at the door,” he wrote, “they are very imperfectly protected.” Variations on the Vanderbilt Hotel or Shanley Company business model might well compete with or even destroy “the success of the monopoly that the law intends the plaintiffs to have.”

It is at this point in Holmes’s decision that we encounter our lexical quarry: “The defendants’ performances are not eleemosynary.” In the eyes of the law, it matters little that the specific performance of a specific song are not explicitly referenced on the dining-room menu, nor indexed to any particular item “which those present are expected to order.” Diners at fancy restaurants probably did not choose to eat at these establishments exclusively for the purpose of listening to music. Music was not, in other words, the “sole object” luring prospective customers to the hotel restaurant. Then again, neither was the food. Holmes pointed out, playfully, that a meal could probably be acquired more cheaply elsewhere. A thorough evaluation required the consideration of the ambience of the dining room in its totality. In this view, the “object” purchased by the consumer is not simply a meal, but a “repast in surroundings that… give a luxurious pleasure not to be had from eating a silent meal.”[4] Thus: “If music did not pay, it would be given up.”

Negations

 Whenever we encounter an ostentatious understatement (or, perhaps, hedged bet?) like “not eleemosynary,” it is useful to turn to Sigmund Freud’s “Negation” (1926). In “Negation,” Freud lays out his famous theory of the denial that protests too much. If a patient says to an analyst—“one thing is for sure: the lobster in my dream is not a symbol for my mother!” the analyst can usually proceed with the assumption that the lobster in the dream is in fact a symbol of the patient’s mother. Freud’s “Negation” is particularly salient here, because Holmes qua literary stylist was not in the habit of hedging. Paul Kens writes: “Observing that Holmes was the least hesitant of men, one of his critics… later noted that it was difficult to think of anyone who expressed fewer halfway positions” (Kens, 1998).

Bearing this in mind, we read Holmes’s “not eleemosynary” as declaring, in effect, that cultural work is, on some fundamental level, closer to charity than it is to industrial labor. The origins of modern Western aesthetics lie, as is well known, in the charitable patronage of elites and sovereigns. Centuries after the decline of patronage, many thinkers––from Marcel Mauss to Georges Bataille to Jacques Derrida to Lewis Hyde and Richard Sennett––identify the essence of art-making as consubstantial with the phenomenology of the “gift.” If aesthetic activity is not “eleemosynary,” it nevertheless appears to lie outside of the circuits of commodity exchange.

Moreover, it is clear that the very notion of intellectual property law––and its corollary notion of the “public domain”––was informed, from the start, by the idea that creative acts are gifts freely given by the author to the audience (and, more broadly, the nation). The historical record provides ample support for this view, although, in recent years, “copyright maximalists” deeply invested in a natural law justification for intellectual property rights have sought to minimize its significance. A brief review of nineteenth-century decisions illuminates this widely shared common-sense view of the aesthetic act as (in the strictest sense) gratuitous.

Within the contemporary academy and think-tank universe, this conceptualization of the arts as intrinsically non-economic (and thus, a fitting object of state support, if the survival of aesthetic expression and “national culture” is valued by legislators) found its most influential theorist in the economist William J. Baumol. We will consider Baumol in much greater detail in a later section. Here, we need only highlight that in Baumol’s very influential view, arts organizations must, over time, rely increasingly on charitable support, or face obsolescence. Everyday experience provides partial confirmation of this perspective.

Paying for a theater ticket is not charity, of course. But it is also not entirely removed from the imaginative universe of charity. The purchaser of such a ticket may feel that he or she is “doing a good deed” by supporting the arts, and the playbill does reserve a great deal of space for the names of wealthy donors and patrons, who are entitled to generous tax-writeoffs for their efforts. Philanthropic efforts on the part of the very wealthy (from Andrew Carnegie to Peggy Guggenheim) to build and support certain institutions of “high culture” have contributed to the public perception of the performing, plastic, and literary arts as  properly belonging to the world of charity. In the United States, the rise of the Keynesian state, the pursuit of Cold War imperatives, and the advent and subsequent maturation of the very idea of “culture” as a dimension of national identity ramified this common-sense linking of the arts and charity, the aesthetic and the eleemosynary.

Finally, it is important to recall that the cult of Romantic genius––in various conjugations with the tradition of nostalgic aesthetic conservatism that stretched from Carlyle through Ruskin and Morris and many schools of Marxist critique-–rests on the premise that the exertions that result in works of art cannot be assimilated into the order of the capitalist workshop or factory shop-floor. In his famous essay “The Man as Letters as a Man of Business,” William Dean Howells noted that this vision of the tension at the heart of cultural work still survived well into the late nineteenth century:

“There is an instinctive sense of this, even in the midst of the grotesque confusion of our economic being; people feel that there is something profane, something impious, in taking money for a picture, or a poem, or a statue.”

Some part of cultural work did seem to retain the quality of the gratuitous if not necessarily of the charitable.

In Herbert v. Shanley, these resonances of the “eleemosynary” certainly seem to have colored Holmes’s ruling. But Holmes was above all interested in a more specific pragmatist challenge, related more directly to the legal dilemmas introduced by the figure of the cultural worker: if laborers in the field of the demotic arts produced value for capitalists (which they obviously did) how was the law to handle the problem that the final product gave so few clues about who contributed what, in what quantities and towards what ends?

As we observed above, Holmes’s solution was to treat the cultural commodity as non-obvious–to embrace a conception of the”repast” as the complex commodity with which the law had to contend.  In Holmes’s view, the “object” at the center of Herbert v. Shanley was not simply a meal, but a “repast in surroundings that… give a luxurious pleasure not to be had from eating a silent meal.” Ontologically, this conception approached what Holmes’s friend and fellow pragmatist William James liked to call a “conflux.” It anticipated what James’s most faithful student, the British emigre philosopher Alfred North Whitehead, would later call a “manifold.” A thorough evaluation of the business in which these hotels were engaged, Holmes insists, requires the apprehension of the ambience of the dining room in its totality.

If the many different form of cultural work congealed in a given “manifold”–this conflux of “luxurious pleasures”––for which customers paid, then the task that fell to jurists was the sorting out a reasonable distribution of profits. The production of ‘luxurious pleasures,” however, overlapped in many cases with the terrain covered by intellectual property law, enshrined in the Constitution, regularly revised over the course of the nineteenth century, and widely believed to exist in some form as a set of common law rights (typically expressed in the distinction between the creator’s rights vis-a-vis the unpublished manuscript as compared to the different legal situation following publication).

Intellectual property law generates all manner of paradoxes at the level of labor-capital relations. “Authors” are, for the law, “owners.” Capitalism tends to prefer––and might even, under ordinary circumstances, require––the situation that Marxist economists refer to ironically as the worker’s “double freedom”: the freedom to offer their labor power to whichever capitalist they choose and the freedom from ownership of any land or produced means of production… (therefore) the only thing they have to sell is their capacity to work.”(Steedman, 16).

As Catherine Fisk notes:

“Throughout the nineteenth century, the rights of employee authors (like those of employee inventors) received considerable  respect from courts that were not otherwise inclined to grant significant protections to employee rights… (U)ntil 1860 (and in some cases beyond), virtually every court that confronted the issue determined that, as a default rule, employees  who produced copyrighted work owned the copyright, even if they did so in the scope of their employment.  Around 1860, courts began to recognize employer ownership, either through express contracts as a matter of equity, or, eventually, by discerning in the employment relationship  the existence of implied contracts to the same effect. In the first decade of the twentieth century, the default rule became the exact opposite of what it had been in the last century, and employers  became entitled to their employees’ creative works in the absence of an agreement to the contrary. It had been well understood for hundreds of years that employers had a property interest in the fruits of their employees’ labor. Employers owned the goods they produced, the minerals they extracted, the crops they harvested. Why were creative works different? And why did the rule flip 180 degrees over the course of a few generations?… They were different because they were creative and because the rhetoric of authorship carried special force on the facts of the cases the courts confronted that it did not carry with other forms of property. They were different because the employees who generated them were not servants… The rise of the corporation ‘ made employer control of all intellectual output of the persons in their employ more logical and more rhetorically appealing. One could say a corporation was the “author” of materials produced by a group of persons in its employ… The kinds of materials that were subject to copyright had expanded to include  more materials prepared in a collaborative way in a corporate setting…Workers who created copyrighted material could more easily be subsumed into the class of employees (not servants). The rise of a unified law of employment, and newly uniform  implied rights and obligations, also favored employers… Courts recharacterized the nature of authorship, filling an empty, or perhaps a very malleable, vessel like “authorship” with an evolving meaning. The old form received new content, even as the rhetorical force  of the form carried on. Given the force  of the concept of “authorship,” it was especially important that the courts use the old form rather than reject it and invent a new one, because the old form legitimated a profound change in property rights at a time when the property rights of the individual were near and dear to the hearts of judges and the accumulating power of corporations was viewed with suspicion…When Congress administered the coup de grace in the 1909 Copyright Act, one could plausibly claim that the change was simply a small one of statutory drafting, not a large one divesting creative employees of the fruits of their intellectual labor.

In a situation utterly unlike that of  their counterparts in other industries, all skilled workers in the field of culture are, potentially authors. Making matters more complicated, cultural production is uniquely reliant upon collaborative labor. American intellectual property law, forged in the very different circumstances of the late eighteenth century, has never quite known what to do with the co-authorship of complex texts like films and musical recordings. The demotic arts and show business thrive on common tropes and themes and what the law would later call “scenes a faire” (stock narrative devices). Furthermore, the years since the Civil War had seen the emergence of a seemingly endless array of mimetic technologies, generating a new, topological terrain of originals melding into copies and copies melding into originals.

Not surprisingly, Holmes gravitated towards a pragmatist solution to these tensions and paradoxes.  Holmes earlier mapped out such a solution in regard to high/low distinctions in 1903’s Bleistein, following up with a similar fix in 1908’s White-Smith in order to subsume the new forms of mass reproduction under the aegis of the Copyright Act’s stipulation that intellectual property protections covered only “writings.” If we look at Herbert v. Shanley as completing a trilogy of pragmatist copyright decisions, we might read it as speaking to Holmes’s desire to finally isolate and confront the question of cultural work.

By attending closely to Holmes’s deferral of the task of positively defining the economic function of the cultural worker, we can fill in some important chapters of the intellectual history of the cultural worker. Keeping an eye out for the appearance of the cultural worker while reading the literature of political economy and law might, in turn, tell us some things we do not yet know about the history of American capitalism.

From Bleistein v. Donaldson to Herbert v. Shanley

In his comprehensive survey of the history of US copyright law, legal scholar William Fisher identifies Holmes’s decision in the case of Bleistein v. Donaldson Lithographing Co (1903) as a primal scene, ushering in a new era of copyright jurisprudence [1]. As Holmes led a small cadre of Progressive era judges in a dramatic reshaping of copyright law, the older law, developed during the Renaissance as part of the post-feudal state’s program of controlling communications, was made to mutate in profound ways in order to better suit the conditions of corporate capitalism. “Copyright” would no longer denote a narrow set of laws covering the works of authors and geniuses. Owing largely to the process set in motion by Bleistein, copyright grew into an expansive doctrine accommodative of popular culture’s unwieldy propensity to continually redefine the very meaning of “text” and ‘commodity.”

For all of its historical importance, the text of Bleistein needs to be scanned closely in order to bring out its radical character. A more superficial reading might well leave the reader with the impression that (in Diane Leenheer Zimmerman’s words): Bleistein is “an unprepossessing case, involving a garden-variety claim of copyright infringement.” We need to dig deeper and situate the case in its various contexts to appreciate how such a run-of-the-mill legal fight could have resulted in so transformative a judicial ruling. To begin, however, we should review the case’s facts.

George Bleistein’s firm (the Courier Lithographing Company) had designed and printed advertising posters for the Great Wallace Shows, a traveling circus based in Indiana. When the circus ran out of posters, it bypassed Courier, and instead asked the Donaldson Lithographing Company to print additional copies. Donaldson used Courier’s designs as models for the “new” posters. This was the act of ostensibly illegitimate copying for which Bleistein sought damages, in the amount of one dollar per sheet. (Holmes’s ruling is usually interpreted as a victory for Bleistein, although the specific decision was that not a finding for either party but rather the stipulation that the case be remanded to the lower court for a new trial; there is no evidence, however, of any further litigation pursued by Bleistein or Donaldson, perhaps owing to a tragic train accident that befell the Wallace circus company later in 1903).

As the litigation moved its way up from district to Supreme Court, the niceties of “originals” and “copies” had been superseded by a larger debate regarding the suitability of mass-reproduced circus posters––without question, the products of several varieties of skilled artistic labor––as proper objects of copyright protection.[1] This debate resonated with a range of turn-of-the-century anxieties: about the fate of art in the age of advertising, about Victorian propriety in the age of vaudeville and Coney Island, about the ever-shifting character of taste hierarchies, class antagonisms, radical identity, and gendered ways of looking and knowing under the reign of the new corporate capitalism. Zimmerman writes: “Perhaps the simplest thing to say is that the case had morphed by that stage into a debate over the kind of a contribution to ‘science and useful arts’ a claimant had to make to be eligible, as a constitutional matter, for protection by copyright.”[2]

In the nineteenth century, copyright increasingly functioned as a mechanism of class stratification, an informal IQ test, a rubric for distinguishing between workers and their putative superiors. In his ruling that circus posters qualified for copyright protection, Holmes’s ruling in Bleistein rejected this framework entirely. He argued for an egalitarian and democratic alternative to the reigning conservative vision of copyright. This more staid position envisioned copyright as the unique privilege of elites. “Writings” could only emerge from the pens of those capable, in the language of Victorian legal discourse, of “an original mental conception.” Against such visions, Holmes insisted that every “personality” has in it “something irreducible, which is one man’s alone.” This minimal level of personal uniqueness was expressed even in an expression as humble as handwriting. Copyright law, if it was to serve its purpose in an increasingly democratic mass society, ought to protect exactly this individuality (we might say, in the more formal philosophical terms favored by some of Holmes’s pragmatist peers, this haecceity––this “this-ness” denoted by each subject’s proper name).

Nowadays, law students are often taught to think of Bleistein as a case concerning “originality,” and, in particular, how high the “threshold of originality” should be set for works to qualify for copyright protection. What was unique about Holmes’s approach to his ruling in the case, however, was not his handling of “threshold” questions. (In general, it was Holmes’s friend Learned Hand, who long sat on the Second Circuit Court, who did most of the heavy intellectual lifting in the realm of devising the “abstraction and filtration” tests from which “thresholds” are derived). Rather, the Bleistein ruling spoke to Holmes’s “profound skepticism about the propriety of any attempt by judges to engage in qualitative line-drawing to decide which sorts of contributions were or were not copyrightable.”[3]

It was this dimension of the Bleistein ruling that was to have so strong an effect on the subsequent history of the cultural worker. We should recall that, in 1903, the material that resided on the other side of the line separating “art” from “not-art” was not “popular culture” but, rather, “trash.” Indeed, according to Anthony Comstock, the Society for the Prevention of Vice, and other guardians of probity (the perspective of whom retained a good deal of influence well into the twentieth century), even a great deal of material that resided on the “art” side of the “art/not art” dividing line should properly be classified as “trash,” if not something worse. This lingering Comstockism created obvious difficulties for the new culture industries.  If courts continued to affirm that demotic arts were entirely lacking in redeeming aesthetic or social value, the state would likely have developed as an increasingly aggressive censor, rather than as default underwriter, of the film, music, and popular literary industries.

Bleistein’s Languages of Class

We might foreground as particularly significant Holmes’s bracketing of questions of taste and traditional aesthetic judgment paved the way for the cultural worker’s emergence as a legal actor. In class terms, the circus posters at the center of Bleistein courted controversy in three interrelated ways. First, the posters were advertisements: a form that many at the time felt should be excluded from copyright law or covered instead by trademark law. Furthermore, they were posters for a circus, a demotic form of popular entertainment. Second, the posters were mass reproduced by means of lithography. We should recall that well into the twentieth century, the status of artistic photographs of “dignified” subjects remained in question. How exactly, courts continued to ask, might the operation of a camera be properly judged an act of “authorship”? It is worth emphasizing, here, that lithography functioned for many Progressive Era intellectuals as an allegorical image of all that was false and artificial about modern life—most famously in E.L. Godkin’s jeremiad “Chromo-Civilization.”

Third, the posters were possibly vulgar or offensive in their depiction of humans in states of near-nudity. Holmes wrote in a letter to a friend about the case: “I fired off a decision upholding the cause of law and art and deciding that a poster for a circus representing decolletes and fat legged ballet girls could be copyrighted. Harlan, that stout old Kentuckian, not exactly an aesthete, dissented for high art.” A lower circuit judge had ruled that the posters were “frivolous” and “to some extent immoral in tendency,” taking pains, however, to note that the nude was still “perfectly admissible in the fine arts.”[1]

To understand what was at stake in Bleistein in class terms, it might be useful to observe the ways in which this cluster of concerns remained intact in the aftermath of Holmes’s ruling.  Legal scholar Christine Haight Farley’s summary of Bleistein’s legacy helps bring into focus the political significance of what might seem at first glance a simple case concerning the reproduction of circus posters.

Farley reminds us that Bleistein has served as the basis for a long line of important decisions expanding the scope of copyright protection. The earliest Bleistein cites–– for example, 1911’s Nat’l Cloak & Suit Co. v. Kaufman and 1916’s Stecher Lithographic Co. v. Dunston Lithograph Co.–– interpreted Holmes’s ruling as affirming that the “protection of the law is not confined to pictorial illustrations known as works of fine arts.” These cases read Holmes as having established the claim that in a copyright infringement suit, “it makes no difference that the pictures in suit possessed little artistic merit.”  In the 1939 case of Vitaphone Corp. v. Hutchinson Amusement Co., the plaintiff drew on Holmes’s language to argue against the defendant’s assertion that “the photoplays in question showed works so trivial, vulgar, and of such little artistic value that they did not merit the protection of copyright laws.”

1959’s Peter Pan Fabrics, Inc. v. Brenda Fabrics, Inc. asserted that a design printed upon dress fabric could be the subject of copyright because Bleisteinhad dispelled the “idea that the word ‘art’ in the Copyright Act imported any idea of merit or high degree or appeal to the better educated classes.” More recently, in an important ratification of Holmes’s “aesthetic relativism,” the 1978 case of Esquire, Inc. v. Ringer looked to Bleistein for support in declaring:

“Neither the Constitution nor the Copyright Act authorizes the Copyright Office or the federal judiciary to serve as arbiters of national taste. These officials have no particular competence to assess the merits of one genre of art relative to another. And to allow them to assume such authority would be to risk stultifying the creativity and originality the copyright laws were expressly designed to encourage.”

1983’s Gracen v. Bradford Exchange invoked Bleistein to assert that “artistic originality” was not the same thing as the “legal concept of originality in the Copyright Act,” and quoted Holmes’s warning that “it 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 limits.” 1986’s Haberman v. Hustler Magazine, Inc., drew on Bleistein to argue that “the values of the First Amendment are best served by extending copyright protection to all art, without regard to official perceptions of its merit.” Holmes’s decision was invoked in the landmark 1994 obscenity/parody case Campbell v. Acuff-Rose Music, Inc. Lawyers for the rap group 2 Live Crew cited Bleistein to declare that whether “parody is in good taste or bad does not and should not matter to fair use.”

In a 2001 case centering around the Gone With the Wind parody The Wind Done Gone (SunTrust Bank v. Houghton Mifflin Co.), the Court cited Bleistein in its statement that “copyright laws apply equally to all expressive content, whether we deem it of trifling importance or utmost gravity.” 2003’s Mattel Inc. v. Walking Mountain Prods upheld artist Thomas Forsythe’s right to produce photos of a nude Barbie doll in danger of being attacked by vintage household appliances, citing Bleistein on the imperative not to evaluate whether or not parodies are in bad taste. In the same year, the Court in Parks v. LaFace Records appealed to the authority of Bleistein in declaring: “whether we personally regard [the Defendant’s song] as repulsive trash or a work of genius is immaterial.”

Sifting through these cases’ keywords –– “good taste” and “bad taste,” “repulsive trash” and “works of genius,” “trifling importance” and “utmost gravity,” “art” and “obscenity,” “official perceptions of merit” and “appeal to the better educated classes,” “triviality” and “vulgarity”––reveals the continuity of certain themes central to copyright law but less frequently discussed than the ethics of file-sharing or the boundaries of the public domain: taste, the prophylactic concern with the moral danger of demotic expression, the fear of pollution via sexual frankness, and the blurring of boundaries between the “beautiful,” the “morally uplifting,” and the “valuable.”

In Bleistein, Holmes brings an experimental, provisional approach to truth to the construction of the Copyright Act’s language.What Holmes challenges, in his openness to the copyrightability of a circus poster, is the self-sufficiency of a Kantian vision of the aesthetic as exclusively the domain of the disinterested contemplation, by a well-bred subject, of a “work of art”: that is, a functionally “useless” object, brought into the world by an “artist,” and not by an “artisan” or “worker,” and outside of the market’s utilitarian “cash nexus.”

Holmes pragmatically rejects this Kantian vision of aesthetic value. Pragmatically, because he recognizes the “greatness” of canonical art throughout his decision. Holmes is not skeptical about the merits of masterpieces; he simply accepts that other varieties of merit, perhaps new varieties ushered in by changing historical conditions, might happily supplement the existing standard. Holmes thus insists that the Copyright Act “does not mean that ordinary posters are not good enough to be considered within its scope.” Holmes insists that “works are not the less connected with the fine arts because their pictorial quality attracts the crowd and therefore gives them a real use—if use means to increase trade and to help make money” (Bleistein, HN3). Like Peirce, Holmes is open to a social determination of meaning of value, and like James, Holmes concedes to commerce its role in guiding American “progress,” to which, apparently, there were no alternatives.

In the Bleistein case, a pragmatist “fallibilism” was also inherent in the very question of how new technologies ought to be processed by copyright law. The “authors” and “writings” addressed by the 1790 Copyright Act had been treated experimentally throughout the nineteenth century: as Bleistein’s lawyers reminded the Court, designers, engravers, lithographers, and photographers had all been assimilated under copyright’s umbrella.

Holmes agreed that the circus posters at the center of Bleistein merited copyright protection. By ratifying the Copyright Act of 1790, Congress meant to promote the “progress” of the “useful arts”: but what, Holmes asked, did that mean? “Useful” could not possibly mean the satisfaction of immediate bodily means. In fact, such a utilitarian reading of the Copyright Act would produce exactly the opposite meaning than the one likely intended by the framers. Against the notion that the circus posters merely captured, in the manner of a snapshot, a snippet of “real life”—and thus failed to rise to the level of “art” that the case of Burrow-Giles Lithographic Co. v. Sarony (1884) had established for photography, with the requirement that some trace of authorial labor in the form of framing, dressing, posing, etc. be evident in the final product––Holmes questioned whether such a charge could not also be leveled against the masters whose work served as the benchmark against which new forms of expression were measured. Would not Donaldson’s argument, carried through, imply that a “portrait by Velasquez or Whistler was common property because others might try their hand on the same face”? The old fashioned idea of copy and original no longer obtained. Copyright only spoke to the regulation of reproductions of reproductions: “Others are free to copy the original.  They are not free to copy the copy.”

Importantly, as Holmes worked out his argument for the unproblematic inclusion of circus posters within the ambit of copyright law he revealed the centrality of class. The antitheses of “illustrations or works connected with the fine arts” covered by copyright law were not “works of little merit or humble degree, or illustrations addressed to the less educated classes” (emphasis added). Rather, the only varieties of aesthetic expression categorically ineligible for copyright protection were “prints or labels designed to be used for any other articles of manufacture.”

Here, Holmes established a link between the class character of popular or commercial forms of expression and the fallibilist vision of truth as the ever-changing product of collective experience. “Certainly works are not the less connected with the fine arts,” Holmes noted, “because their pictorial quality attracts the crowd and therefore gives them a real use—if use means to increase trade and help to make money.” Goodbye, Kantian disinterest. “A picture is none the less a picture and none the less a subject of copyright that it is used for an advertisement.”

Fallibilism and a sense of truth as collectively determined and continually revised guide also Holmes’s skepticism in regard to the evaluative capacities of judges. “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations,” Holmes wrote, “outside of the narrowest and most obvious limits.”  At the one extreme, he speculated, some “works of genius would be sure to miss appreciation,” as their “very novelty would make them repulsive until the public had learned the new language in which their author spoke.”  Would the works of Goya or Manet have been judged worthy of protection when seen for the first time?

At the other extreme, “copyright would be denied to pictures which appealed to a public less educated than the judge.” The collective judgment of worth—determinations of marginal utility, as it were––rendered commercial artworks valuable, and “the taste of any public is not to be treated with contempt.” Holmes follows this evaluation with a Peircean note: “It is an ultimate fact for the moment, whatever may be our hopes for a change.” Echoing James on the epistemological centrality of desire, Holmes writes: “That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them.”

Holmes’s pragmatist “fallibilism” was also evident in his refusal to honor Victorian morality as a guide to artistic merit. Donaldson’s lawyer Mr. Edmund W. Kittredge attempted to argue that Bleistein’s case was moot because copyright law “does not protect what is immoral in its tendency.”

Because the circus posters represented “unchaste acts of scenes calculated to excite lustful or sensual desires in those whose minds are open to such influences, and to attract them to witness the performance of such scenes.”  The “young and immature and those who are sensually inclined” might be influenced by such representations; the Court, in deciding Bleistein, should consider whether a tendency to excited the “wrong” kinds of aesthetic responses should not exclude objects like circus posters from copyright’s protections.

Nevertheless, a few lines pique our interest. For example: “There is no reason to doubt that these prints in their ensemble and in all their details, in their design and particular combinations of figures, lines and colors, are the original work of the plaintiffs’ designer” (emphasis added). Or:

The copy is the personal reaction of an individual upon nature.  Personality always contains something unique.  It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone.  That something he may copyright unless there is a restriction in the words of the act.

These lines point to the final destiny of Bleistein: Jerome Frank’s ruling in Alfred Bell Co. v. Catalda: even the trace of a “copyist’s bad eyesight or defective musculature” merited copyright protection. Frank’s vision of copyright meant that to qualify as “new,” a text merely had to be demonstrably different––at a phonemic level, as it were––from other texts. While seemingly a technical legal matter, the class implications of this shift could not be starker.

What brought about the pragmatic embrace of a semiotic theory of copyright was the waning—first in law, later in modernist art, but never in the popular imagination––of two related concepts: originality, a capacity uniquely vested in elite geniuses; and the “work,” that ontologically distinct object, a kind of living miracle testifying to the mysterious powers of creative genius. Bleistein inaugurated a new project of semiotic analysis in copyright law, pegged to the changing status of “originality” and the decline of Romantic theories of authorship.  Thus Holmes was also, apparently, swayed by Bleistein’s lawyer arguments for the legitimacy of the posters on exactly the same terms used by Donaldson’s counsel:

Picture-posters or show bills, such as these chromolithographs were, are not designed for close inspection or long-continued study, like an oil painting, a steel or wood engraving, or an etching, and they are not to be judged by the same standards. They are intended to catch the eye of the passer on the street, or any one who merely glances at them, and to challenge his attention, — if possible to compel him to look again, so that he will observe what is the subject of the poster and have this forced upon his mind, and will be attracted by it. Their function is to illustrate something, and to advertise it by appealing quickly to the imagination, and conveying instantly a strong and favorable impression. Thus, to be successful, they require artistic ability, and above all things creativeness or originality of a high order, but peculiar. They must be designed boldly, and executed on broad lines, with not much attention to detail, so that the spirit of the picture will stand out at once, and almost leap at you, and will not be lost in a mass of details and minor features.

White-Smith

Holmes would work out his theory of durational aesthetics further in a case form 1908, White-Smith v. Apollo, which allowed for further elaboration of the theory in its shift of focus from a static to a time-based art form: music. More precisely, White-Smith concerned a certain parallax gap that separates static and time-based instantiations of the same musical text: in plain English, it concerned how copyright law, meant to protect “writings,” would deal with the question of whether a musical text was a given arrangement of markings on staff paper or the experiential, durational gestalt apprehended by listening to a performance. The occasion for this legal challenge was the advent of a new form of commodification of the musical text—the roll of paper punched with paper holes prepared for use in conjunction with player pianos––and the resulting dispute about whether piano roll manufacturers were “copying,” for example, a Sousa march when they brought a piano roll version of said march to market.

Holmes’s thinking in his White-Smith decision betrays his deep immersion in a Peircean/Jamesian discourse on the nature of perception. In a series of lines the profundity of which have never been properly highlighted, Holmes essentially developed a musical phenomenology anticipatory of avant garde modernists like John Cage:

A musical composition is a rational collocation of sounds apart from concepts, reduced to a tangible expression from which the collocation can be reproduced either with or without continuous human intervention.  On principle anything that mechanically reproduces that collocation of sounds ought to be held a copy, or if the statute is too narrow ought to be made so by a further act, except so far as some extraneous consideration of policy may oppose.

And:

The ground of this extraordinary right (i.e., copyright) is that the person to whom it is given has invented some new collocation of visible or audible points, — of lines, colors, sounds, or words.  The restraint is directed against reproducing this collocation, although but for the invention and the statute any one would be free to combine the contents of the dictionary, the elements of the spectrum, or the notes of the gamut in any way that he had the wit to devise.  The restriction is confined to the specific form, to the collocation devised, of course, but one would expect that, if it was to be protected at all, that collocation would be protected according to what was its essence.  One would expect the protection to be coextensive not only with the invention, which, though free to all, only one had the ability to achieve, but with the possibility of reproducing the result which gives to the invention its meaning and worth.

Holmes’s notion of the “rational collocation” of semiotic elements is unthinkable outside of a pragmatist theory of cognition and perception.

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