Slight Return: Cultural Work, Law, Ontology

Hi, everyone! I missed you. Glad to be back.

My time, of late, has been devoted to completing a study of the rise of the cultural worker in the United States. As I return, very happily, to blogging here, it seems natural to begin by thinking aloud a bit about this work. What follows may be a little bit free-associative, but I hope that does not impose too onerous a burden on the reader.

The central wager of my study is that the history of the cultural worker is best understood as a process that unfolded in tandem with the history of American intellectual property (IP) law. Within critical IP scholarship, the story of the emergence of the cultural worker is sometimes obscured by the roughly simultaneous––and, unquestionably, more luridly gothic––development: the  “death of the author” announced by Michel Foucault in the 1960s.?[1] I have become increasingly convinced that the rise of the cultural worker and the “death of the author” are two sides of a single phenomenon.  As the legal scholar Catherine Fisk insists, authors did not exactly “die”: they got jobs. Thereafter, the identity of the solitary author was subsumed into the personhood of his or her corporate employer, in the manner of science fiction’s “company-man dystopias.”[2] We might say that the cultural worker is the form in which the author persisted, in a sort of life-after-death. It is this key development––the author “getting a job,” and mutating into the cultural worker––that we have been trying to track.

Locating points of origin is difficult. It might make more sense to begin at the end?

One appealing “ending” is the1973 Supreme Court ruling in the copyright case of Goldstein v. California (the discussion here does not require a review of the details of the case, which concerned the recording industry and the sale of “pirated” copies of LPs). In his decision for the Supreme Court’s majority in Goldstein, Justice Burger interpreted federal copyright law as covering not simply the “original compositions” of an individual author, but creative work by any “originator.” Copyright law, Burger insisted, protects “any physical rendering of the fruits of creative, intellectual, or aesthetic labor.”[3]

Setting aside any reservations we might have about the accuracy of Burger’s account of the origins of copyright (whether legal realist or “originalist,” Supreme Court rulings are rarely sources of good historiographical analysis; that is neither here nor there), two things about his ruling in Goldstein strike us as intriguing.

First, we should note that for Burger, apparently, “creative, intellectual, or aesthetic labor” is a straightforwardly legible concept. Writing the history of the cultural worker, we are often plagued with doubts—are we actually studying some tangible something? Why is it so hard to pin down what we mean by “cultural worker?” Goldstein v. California provides some relief; in a pinch we might say––we mean by “cultural worker” what Justice Burger did.

We think that merits study, because in many previous moments, the formulation “creative, intellectual, or aesthetic labor” would not have made any sense. For example, students of German labor history know that Protestant ideologies of work famously conceptualized the imperative to toil as divine punishment––the worker suffered, and his patience with the necessity and inevitability of this suffering was a condition of membership in the ethical community. Nothing could be more foreign to the world of work, in this figuration, than the pleasures (and even the agonies) of aiesthesis and Romantic creativity.

The history of the United States can be interpreted as always having been uniquely open, at least in theory, to the idea of cultural work. One finds, in the United States, Lockean justifications for the worthiness of cultural work, within the capitalist ideology of “improvement,” beginning in the late eighteenth century, and, at about the same time, Herderian briefs for government support of cultural workers as foot soldiers of “national genius.” These were crucial inspirations for the 1790 Copyright Act. At the same time, within republican ideology, Burger’s concretization of “cultural work” would certainly have appeared as a demonic aberration. So, we still need to account for the process whereby Burger’s formulation began to be thinkable, and then to register as common sense.

Second, Burger ties “creative, intellectual, or aesthetic labor” to the ontological category of “any physical rendering.” Here, we see the refinement of an aesthetic relativism in intellectual property law that was quite shocking in its initial presentation by Oliver Wendell Holmes, Jr. in the early twentieth century (and which remained controversial during the many crises of “What is Art?” that have punctuated the modern era). What Burger evokes here is a new world in which most aesthetic and intellectual activity takes the form of mass-produced commodities brought into being by professional cultural workers: men and women who are highly skilled, organized in complex division of labor, and often represented by labor unions.

The radical novelty of all of this––at the level of the cultural object––should be emphasized. Popular culture, of course, was not new. Colonial America was heir to a long tradition of performing arts––the “little tradition” of Early Modern Europe that Peter Burke describes so vividly––but this activity was largely seen as marginal to economic life, if not dangerously subversive of it (thus, the thousands of religious tracts of the eighteenth century condemning actors and theaters). We know, from the classic studies of the history of American media of the gradual development, after the advent of the Jacksonian Era, of American theatrical culture, newspapers, and reprinted novels, as well as the beginnings of exotic new technologies like telegraphy and photography. The literature on P.T. Barnum, popular melodrama, and minstrelsy reminds us of the vexed economies of attraction and repulsion, voyeurism and inattention, uniquely pervasive during the years when the US Congress imposed a “gag rule” upon itself to suppress acknowledgment of the nation’s monstrous crimes vis-à-vis African Americans (and embraced a different set of discursive ruses to paper over the genocidal campaigns of violence against Native Americans, and later bloodthirsty adventures in the Western Hemisphere).

We recall that after the Civil War, improvements in printing and the production of cheap paper, as well as the spread of the railroad, led to an expansion in the market for mass-produced texts, in tandem with the new vogue for the piano, the attending growth of the market in sheet music, and the rise of lithographic color printing, proto-cinematic cultures of attraction and sensation, and the vaudeville innovations of Klaw and Erlanger. Scholars from Hillel Schwartz to Lisa Gitelman help us understand that these ventures were part of a larger Victorian Era “culture of the copy,” in which various technologies of reproduction and doubling––from speed-writing stenographic methods to musical automatons––were endlessly tinkered with and demonstrated.

But, as readers of Walter Benjamin’s essays on cultural commodities know well, something decisive changed with the technologies of mass reproduction. For Benjamin, humans’ sense of stability and security in the world has everything to do with the nature of the objects that surround us. Artificial building materials, in this analysis, are not simply innovations that serve a technological end: they are phenomenologically meaningful. If we were, suddenly, to begin importing all of our furniture from an alien race living on the planet Jupiter, the texture of everyday life and consciousness would be completely altered––even if the alien furniture resembled, in every detail, the futons and loveseats we buy at Ikea. Something like this hypothetical shift took place with the advent of the mass-reproduced cultural commodity, Benjamin argues, and we have still not begun to sort out the consequences.

Jacques Rancière has famously questioned Benjamin’s narration of this process: does Benjamin not make too much of a fetish of technology? Aren’t Benjamin’s observations true of the entire post-Kantian aesthetic formation, and not at all restricted to the commercialization of popular culture in the twentieth century? (Perhaps, at the heart of Rancière’s critique lies a Derridean objection: doesn’t Benjamin rely on a certain nostalgic strategy that insists that once there were real objects, and now there are only fake ones?) Rancière’s rejoinders are worth taking seriously. I think they can be satisfactorily answered by turning to the work of Bernard Stiegler, a philosopher who writes extensively about the philosophy of technology and objects (in many places, Stiegler’s essays call to mind the early texts of Lewis Mumford).

Stiegler is not associated with the movement called “Object-Oriented Ontology,” as far as I know, but he does work (in a manner that appeals to me, at least, quite a lot more than the various strains of the OOO project) on the ontology of objects. In his writing on the rise of mass culture and photography, Stiegler presents the idea of the “mnemo-technical object” (a similar idea is present in the work of Friedrich Kittler and Paul Connerton): the tool that possesses memory, the extension of the human hand that works to amplify our powers by helping us to remember. (In such a perspective, “technologies” would include laws and habits, as well as material inventions, as well as a range of subjective strategies).

Over time, the accumulation of this “mnemo-technical” apparatus becomes, in and of itself, ontologically significant––confronting us, often, as a Heideggerian HAL 9000, a terrifying “standing reserve.” While this analytic thrust does not appeal to me, it does strike me that there is a route through Stiegler’s analysis to a happier synthesis. I am thinking of Lewis Gordon’s repurposing of the work of the existential phenomenologists Natanson and Schutz in order to read Frantz Fanon as a prophet of “anonymity”––the ordinary mnemo-technical functioning of the everyday world along the lines of the mailing of a letter at the post office––which is precisely what racism and colonialism deny to racially marked subjects. In my research, I pursue this lead by focusing on “anonymity” and authorship in the case of James Weldon Johnson, who published his Autobiography of An Ex-Colored Man anonymously, although the African American press often referred to Johnson as its author in the years before it was republished, in 1927, under Johnson’s own name. It is my hunch that cultural work, in general, bears an important relation to “anonymity,” thus configured––and that this might be understood as a radical and utopian dimension of the aesthetics of popular culture.

To make such an argument requires concerted attention to the niceties of ontology. Stiegler is especially helpful here in his discussion of photography. Following the path laid out in Roland Barthes’s Camera Lucida, Stiegler insists that the mnemo-technical innovations in the photographic mode are ontologically distinct from other media of preservation and storage. Photographs capture “facts” that––however culturally constructed––strike us as more real, and more connected to questions of being, finitude, and death, than can be accurately said of prior technologies (with the possible exception of the Byzantine religious relic, to which photographs are often compared). The “this happened” of the photograph becomes paradigmatic of the popular arts in the twentieth century. That, in turn had significant consequences.

It sometimes seems to me that we jump too quickly from Benjamin’s discussion of the newness of the mass-reproducible as material objects to the implications of those objects for social relations: what needs to be maintained, dialectically, is the uncanny character of these objects as objects, and the ways in which these objects served to alter the world into one in which the existence of such things was possible. Following Benjamin’s lead, mediated by Stiegler, we might read Burger in Goldstein v. California as providing an inventory of a new world of objects, produced by new forms of labor, that immediately began to naturalize themselves––so effectively, in fact, that for those of us who grew up consuming media produced under this industrial regime it is hard to imagine that it ever was otherwise.

One of the challenges that I am going to try to take up in my dissertation (and I hope to work some of this out here) is whether all of this reflection on objects and ontology can be meaningfully incorporated into a historical study, at the level of aesthetic analysis. Historians often perform close readings of texts to draw out representational and affective content, to map connections between events and discourses, to illustrate the historicity of a certain mood or mindset. I have been wondering whether there is a much more materialist way of reading aesthetic texts, as sites of tension wherein tools and relations are negotiated, and in which the story of constituent objects subsumes the story of some one constituent subject. Intriguingly, this kind of reading might provide a bridge between realism––the metaphysical doctrine that insists that we can know something about objects-in-themselves––and realism––the literary cult of the everyday. A thread we hope to take up in the next installment.

Notes

[1] Much of the best research on the history of IP reflects on the historical contingency and situatedness of the very idea of the “author,” and seeks to locate in legal discourse the sources of Romantic investments in the idea of the creative genius who bears a paternal or proprietary relationship to that equally ambiguous and historically contingent object, the “work of art.” IP law and modern literature are both products, Jaszi insists, of a “quite radical reconceptualization of the creative process” deriving from the “heroic self-presentation of Romantic poets.” See Peter Jaszi and Martha Woodmansee, The Construction of Authorship: Textual Appropriation in Law and Literature (Durham: Duke University Press, 1994); Mario Biagioli, Peter Jaszi, and Martha Woodmansee, Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective (Chicago: University of Chicago Press, 2011); Martha Woodmansee, The Author, Art, and the Market: Rereading the History of Aesthetics (New York: Columbia University Press, 1994); Paul K. Saint-Amour, Modernism and Copyright (Oxford: Oxford University Press, 2011).

[2] See Catherine Fisk “Authors at Work: The Origins of the Work-for-Hire Doctrine,” Yale Journal of Law & the Humanities, Winter 2003, 15; also, “‘An Ingenious Man Enabled by Contract: Entrepreneurship and the Rise of Contract” Duke Science, Technology & Innovation Paper No. 16. Duke Law School Legal Studies Paper No. 157. May 2007.

[3] Goldstein v. California, 1973, Note 23. “By Art. I, § 8, cl. 8, of the Constitution, the States granted to Congress the power to protect the “Writings” of “Authors.” These terms have not been construed in their narrow literal sense, but rather with the reach necessary to reflect the broad scope of constitutional principles. While an “author” may be viewed as an individual who writes an original composition, the term, in its constitutional sense, has been construed to mean an “originator,” “he to whom anything owes its origin.” Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). Similarly, although the word “writings” might be limited to script or printed material, it may be interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor. [p*562] Ibid.; Trade-Mark Cases, 100 U.S. 82, 94 (1879). Thus, recordings of artistic performances may be within the reach of Clause 8.”