The following is a guest post by Kurt Newman, Graduate Student in History, UC Santa Barbara.
I am grateful to Andrew Hartman for extending me an invitation to write for the USIH blog. I thought that it might be interesting to share some work in progress, part of my dissertation research on the history of intellectual property law and cultural workers in the first half of the twentieth century.
In his excellent survey of the history of copyright law in the US, legal scholar William Fisher identifies a pivotal development in the evolution of twentieth-century intellectual property doctrine . In the Progressive era, a number of judges–– of whom the most important was Justice Oliver Wendell Holmes, Jr.––reshaped copyright law, transforming it from a narrow juridical category covering the works of authors and geniuses into an expansive doctrine accommodative of popular culture’s unwieldy propensity to continually produce new varieties of texts and commodities .
The key decision ushering in this historical transformation of copyright law was 1903’s Bleistein v. Donaldson Lithographing Co. . From the viewpoint of the modern reader, Diane Leenheer Zimmerman observes, Bleistein seems “an unprepossessing case, involving a garden-variety claim of copyright infringement.” 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 chose not to call on Bleistein for reprints, but instead asked the defendant’s firm, the Donaldson Lithographing Company, to print additional copies. Donaldson complied, using Courier’s designs as models. It was this act of copying for which Bleistein sought damages, in the amount of one dollar per sheet. As the litigation moved its way up from district to Supreme Court, Zimmerman notes, a new aspect of the case began to take center stage. “There are many ways to characterize what the Bleistein case was ‘about’ by the time it reachedthe Supreme Court,” 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” (Zimmerman, 77-78) .
Nowadays, law students are 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. Zimmerman insists that this does not quite capture the case’s significance. Instead, what was most remarkable about Bleistein was “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” (Zimmerman, 78).
It is this maneuver––Holmes’s refusal to let the path of copyright law rest on the class-bound aesthetic sensibilities of judges––that makes Bleistein such a rich and fascinating case. Here, a personal note may be helpful. Coming to the study of intellectual property law from a background in labor and policy history, and with theoretical commitments to historical materialism, I am most interested in the way that the logic of class organizes and structures legal doctrine. Too often, however, when scholars insist that law operates as a class discourse, “class” functions as a kind of trump card that is pulled out at the game’s end to invalidate the idealism of loftier interpretations. This kind of “hermeneutics of suspicion” can easily bleed over into a kind of left anti-intellectualism. The identification of the centrality of class to the inner workings of the law is most useful when it comes at the beginning of an analysis and not at the end of a polemic. A class analysis of law is optimal for generating interesting questions, not providing the scholar with a foregone conclusion to every inquiry: some variation, however sophisticated, on the old maxim “It’s The Economy, Stupid.”
In the case of Bleistein, it does not take much detective work to tease out that what is being renegotiated in the case is the fact that in the nineteenth century copyright had become a mechanism of class stratification, a rubric for distinguishing between workers and their putative superiors on the basis of intellectual capacity. Holmes’s ruling in Bleistein rejected a competing conservative vision of copyright as a unique privilege of elites, reserved only for those with the time and good breeding to participate in poïesis and properly aesthetic reflection; those capable, as legal discourse put it, of “an original mental conception.” Instead, Holmes insisted that every “personality” has in it “something irreducible, which is one man’s alone” which was expressed even in an expression as humble as handwriting. It was that uniqueness, Holmes concluded, that copyright law ought to protect. In this light, it was also obvious that mass-reproduced circus posters––without question, the products of several varieties of skilled artistic labor––merited copyright protection (Zimmerman 98).
Bleistein’s Languages of Class
In class terms, the circus posters at the center of Bleistein were controversial in three interrelated ways. First, they were advertisements (a form that many at the time felt should be excluded from copyright law or covered instead by trademark law) for a demotic (or “lowbrow”) form of popular entertainment. Second, the posters were mass-reproduced by means of lithography at a time when even the status of artistic photographs of “dignified” subjects remained in question: how exactly, courts continued to ask, was the operation of a camera an act of “authorship”? 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” (Zimmerman, 95, 88).
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. Reading 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 . Working backwards chronologically, Farley notes that in 2003’s Mattel Inc. v. Walking Mountain Prods., the Court 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.” In the famous 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.” The landmark 1994 obscenity/parody case Campbell v. Acuff-Rose Music, Inc., cited Bleistein to declare 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” a fair use within the meaning of the Copyright Act of 1976 and explained that whether “parody is in good taste or bad does not and should not matter to fair use.” Judgment in an earlier case that also linked obscenity and copyright issues, 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.” 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 Justice 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.”
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.
Going back a few decades, 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 Bleistein had 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.” In the 1939 case of Vitaphone Corp. v. Hutchinson Amusement Co., the plaintiff drew on Bleistein 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,” in a moment when the legitimacy of the movies, and the corrupting influence of the Hollywood studios were being widely debated. 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 Bleistein as affirming that the “protection of the law is not confined to pictorial illustrations known as works of fine arts,” and to support the claim that in a copyright infringement suit, “it makes no difference that the pictures in suit possessed little artistic merit,” respectively .
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.” To say that these themes do not receive due attention in current debates is not, however, to suggest that they are hidden. On the contrary: languages of class are the manifest content of modern copyright law—the law makes no attempt to hide its activities as arbiter of taste, value, and probity. What remains mysterious is not the way languages of class underwrite copyright law, but rather, how any opposition to it—such as Holmes’s embrace of “aesthetic relativism” or refusal of aesthetic foundationalism in the name of a market democratization of culture––was able to take root in the Progressive Era.
Pragmatism and Holmes’s “Aesthetic Relativism”
The shift in legal thinking announced by Bleistein was neither foreordained nor uncontested. In fact, the Holmes-ian re-crafting of copyright law in a more democratic, and hence popular culture-friendly, direction constitutes a bit of a mystery. William Fisher suggests that these conceptual innovations derived from the “liberalism” of Holmes and allied jurists:
Classical liberalism has also contributed in many… ways to the expansion of intellectual property rights. The most important, probably, has been the strong commitment of both courts and legislators when administering the copyright laws to the principle of aesthetic relativism. Unwilling to differentiate between good and bad art (or art and advertising), we extend the umbrella of copyright protection to everything—from brilliant bursts of creativity to (at least in theory) minor deviations from existing works caused by a ‘copyist’s bad eyesight or defective musculature, or a shock caused by clap of thunder’ (Fisher, 9).
What does Fisher mean by “liberalism?” First and foremost: “the notion that the public and private spheres (the ‘state’ and ‘civil society’) were and should be distinct, combined with a general distrust of governmental tinkering with the market.” But there is no reason that such a point of view would favor expansive copyright protection: in fact, the only logical corollary of “liberalism,” in this sense, would be a highly restrictive approach to copyright, a market-tampering system of monopoly grants with origins in late feudal statutory law. I think that to be fair to Fisher, he wishes us to read two shadings into “liberalism”: first, some version of “corporate liberalism,” the intellectual movement that abandoned Say’s Law, embraced the corporate form, and recognized the need for strong state intervention to keep capitalism from sliding into “ruinous competition” or redistributing too much wealth to an increasingly empowered industrial working class; and second, a “liberalism” construed as “judicial anti-conservatism” which, in effect, overlapped seamlessly with the philosophical movement of pragmatism. To understand Holmes’s embrace of “aesthetic relativism,” then, it is crucial to come to terms with Holmes-as-pragmatist.
In conventional presentations of Holmes’s pragmatism, the reader is often left with the impression that if pragmatism was electrifying and liberating in the realm of philosophy, it was anodyne and ho-hum in the realm of law. Reading Morton White, for example, we encounter a Holmes whose main contribution is merely throwing out the stale formalism of nineteenth-century jurisprudence. Many legal histories focus on the Holmes who penned the classic lines “The life of the law has not been logic; it has been experience,” a notable quotable to be sure, but hardly an epistemological thunderbolt on the order of a William James or John Dewey aperçu. Perhaps this conventional reading of Holmes also makes him seem so ideologically soggy, an inspiration for everything from sociological jurisprudence to legal realism to law and economics.
Fortunately, we are not stuck with conventional readings of pragmatism, writ large, and by turning to some of the more ambitious revisionist readings of pragmatism (primarily those of James Livingston) we can better take account of the significance of Holmes’s renovation of copyright law. Once that is accomplished, we can return to the question of class, enlisting the aid of French theorist Jacques Rancière. Those are the two tasks to which we will attend in the second part of this essay. (Which will appear at the USIH Blog. AH)
 See William W. Fisher III, “Geistiges Eigentum – ein ausufernder Rechtsbereich: Die Geschichte des Ideenschutzes in den Vereinigten Staaten,” in Eigentum im internationalen Vergleich (Vandenhoeck & Ruprecht, 1999), 265-91. English version accessed online November 2012: The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States).
While today intellectual property law is generally seen as a covering term encompassing five legal doctrines (copyright law, which protects “original forms of expression”; patent law, which protects inventions; trademark law, which protects words and symbols that identify goods and services; trade-secret law, which protects information that corporations have tried but failed to conceal from competitors; and the right of publicity, which protects celebrities’ interests in their images and identities), it is important to recognize that this is a comparatively recent (post-World War II) phenomenon. In the Progressive Era context with which this essay is concerned, the relevant historical actors mostly wrote and spoke about “copyright law” and “patent law.”
 The 1790 Copyright Act famously aimed “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.”
 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).
 Diane Leenheer Zimmerman, “The Story of Bleistein v. Donaldson Lithographing Company: Originality as a Vehicle for Copyright Inclusivity” in In Ginsburg, Jane C.; Dreyfuss, Rochelle Cooper (2010-05-12). Ginsburg and Dreyfuss’ Intellectual Property Stories (Law Stories) (p. 77). Thomson West Law. Kindle Edition.
 Christine Haight Farley, “Judging Art.” 79 Tul. L. Rev. 805, March 2005 (N. 36).
 The cases cited by Farley are these: Mattel Inc. v. Walking Mountain Prods., 353 F.3d (9th Cir. 2003); Parks v. LaFace Records, 329 F.3d 437, (6th Cir. 2003); (SunTrust Bank v. Houghton Mifflin Co., 268 F.3d [11th Cir. 2001]); Campbell v. Acuff-Rose Music, Inc., 510 U.S. (1994); Haberman v. Hustler Magazine, Inc., 626 F. Supp. (D. Mass, 1986); Gracen v. Bradford Exchange, 698 F.2d (7th Cir. 1983); Mitchell Bros. Film Group v. Cinema Adult Theater 604 F.2d (5th Cir. 1979); Esquire, Inc. v. Ringer, 591 F.2d (D.C. Cir. 1978); Peter Pan Fabrics, Inc. v. Brenda Fabrics, Inc., 169 F. Supp. (S.D.N.Y. 1959); Vitaphone Corp. v. Hutchinson Amusement Co., 28 F. Supp. (D. Mass. 1939); Ansehl v. Puritan Pharm. Co., 61 F.2d (8th Cir. 1932); Nat’l Cloak & Suit Co. v. Kaufman, 189 (C.C.M.D. Pa. 1911); Stecher Lithographic Co. v. Dunston Lithograph Co., (W.D.N.Y. 1916).