Sara K. Stadler: Assistant Professor of Law, Emory University School of Law. B.A., Emory University; J.D., University of Virginia. I would like to thank my Emory colleagues (past and present), including Kay Levine, Douglas Palmer, and Julie Seaman, for providing me with their comments on an earlier draft of this Article. I also am grateful to Jane Ginsburg for giving me the benefit of her opinion of the ideas expressed in this Article. Sharon Billington and Sara Ghazal provided exceptional research assistance. Page 610
One hundred and twenty-five years have elapsed since Bentham died on 6 June 1832, at the fine old age of eight[y]-four. Yet, such was his singular destiny, that instead of being interred he is with us still, and may be seen, seated in a large case with a plate-glass front, wearing the clothes he used to put on, and with his stick "Dapple" in his hand. 1
From time to time, his handlers at University College, London, bring the clothed skeleton of the philosopher Jeremy Bentham, topped with a wax replica of his head, to sit at table during banquets in his honor. No doubt Bentham would be pleased to be present, even in death, for he wanted his "happiness system of morals and legislation" to survive the passing of his body.2 And his system has survived: Legal philosophers (and lawmakers) regularly ask whether a legal rule is likely to produce what Bentham termed, in short, the "greatest happiness"3 by providing society with more benefits than costs. When it comes to copyright law, however, this system, also known as "utilitarianism,"4 is alive only in theory; in practice, utilitarianism in copyright has become, like the remains of Jeremy Bentham, a lifeless thing Page 611 to be placed on public display-in this case, when lawmakers engage in the practice of making copyright law.
It was not always thus. At the founding, American copyright law was, I argue, a distinctly utilitarian construct:5 To "promote the Progress of Science" in society as a whole, Congress acted to preserve incentives to create a select class of "Writings" by granting "Authors . . . the exclusive Right" to those works "for limited Times"6-then, a total of twenty-eight years.7 Any more exclusivity than this was thought to burden society, not benefit it. Any increase in creation was not worth the increase in the costs of monopoly. The advancement of learning was the primary goal of copyright; reward to the author was secondary.8
Since the founding, however, copyright law has undergone a transformation reflecting the rise of an individualism that measures the welfare of society by inquiring into the welfare of individuals within it. The emergence of "individual rights" may be a good thing in some spheres. In the sphere of copyright, however, I argue that the rise of philosophies of right has worked a marked change for the worse in how the law protects the products of creative labor. As a nation, we began with Bentham; but we have ended up with John Locke, and as a result, we find ourselves strangled by the very monopolies about which the Framers repeatedly warned in their public writings.9 We have, unfortunately, come a long way from the utilitarianism of the Framers. But we are not stuck with the copyright law that we have. If we could create a truly utilitarian copyright, what might it look like?
Because it would require a book to answer this question, I use this Article to provide but one example of how we might forge a utilitarian copyright by examining works of the fine arts-to which Congress extended copyright protection in 1870-and in particular by asking the question, Page 612 "What Is Wrong with a Forgery?"10 For artists and art historians, forgeries pose questions of aesthetics,11 but for copyright scholars, forgeries pose interesting questions of incentives. In copyright terms, one might reason, for example, that if forgery diminished the incentives of fine artists to create- as it seems must be the case, at first blush-then we would have every reason to condemn forgeries as infringements of copyright. But what if forgery had no significant impact on creative incentive? Put another way, what if fine artists would engage in acts of creation with or without the exclusivity of reproduction that copyright has to offer?12 If fine artists would create without the benefit of copyright, then granting copyright in works of the fine arts would burden the rest of us with the costs of exclusivity without providing the usual benefits-more paintings, more drawings, more sculpture, more "Progress of Science."13 Granting copyright in works of the fine arts would, on balance, be disutilitarian.14 On the other hand, one suspects that some artists, at least, might invest more heavily in creation if they knew that copyright law would provide them with the exclusive rights to license the reproduction of their works on posters, notecards, and other promotional goods. To what extent must we take the wishes of those artists into account? And as long as we are doing the utilitarian math, what cost does exclusivity impose on those fine artists who create, in part, by borrowing from the past? Is there any artist who does not fall within this category? And for artists who do, might an increase in exclusivity actually diminish their incentives to create?
Those whom we entrust to make copyright law no longer ask these questions. Instead, they tend to ask whether increasing the breadth or duration of exclusive rights would increase the creative incentives of those who already have adequate incentives to create, or worse, of those who own copyrights in works already created. Never mind that a utilitarian copyright would count "one person's happiness . . . for exactly as much as another's"15and thus would withhold copyright protection when to grant it would Page 613 benefit a few by imposing a greater cost on the rest. In copyright law today, "all [of us] are equal, but some [of us] are more equal than others."16 Only by forging a utilitarian copyright can we know what our philosophies of right are costing society-not only in terms of creation, but also in terms of access.
In Part I of this Article, I pick up the tool of forgery by defining the term; by introducing its brother, the "fake"; and by explaining why forgeries and fakes alike present a simple case of infringement under copyright law as we know it. In Part II, I turn to the philosophy of utilitarianism: defining its terms; describing its impact on copyright law at the founding; and tracing the decline of utilitarianism in copyright law thereafter, particularly as it concerns what I call "singular works" of the fine arts-that is, works existing in a single copy (in lay terms, the "original"). In Part III, I expose the pretension of a copyright law that claims to subordinate private good to that of the public, when in fact it increasingly does the opposite, making copyright law for the many in response to the demands of a few. I then demonstrate how we might forge a utilitarian copyright by doing the utilitarian math: subtracting costs from benefits; weighing suffering against happiness; and in the end, discriminating among artists to find the level of exclusivity that provides society with the greatest benefit. In the end, I argue, society might benefit the most by requiring fine artists either to comply with the copyright "formalities"17 or to forego altogether the exclusive rights known as "copyright."
I confess to a fascination with fakers. They carry into the world of art the spirit of the god Mercury, who was the special protector of both artists and thieves. . . . Without the intervention of Mercury in human affairs, what pompous asses we should surely be!18 Page 614
It may seem an odd choice to use forgery, "the syphilis of art,"19 a pretender in its own right, to expose the pretension of copyright. For forgery presents the easy case: American copyright owners have enjoyed the exclusive right to "print" and "reprint," to "copy," and later, to "reproduce" their works since the first Copyright Act in 179020-subject only to an evolving menu of defenses.21 What is a forgery if not a copy? The answer depends upon what one means by the word "forgery," and thus a few definitions are in order.
The Oxford English Dictionary defines "forgery" as "fictitious invention" or "spurious production": "[t]he making of a thing in fraudulent imitation of something."22 Art theorists, for their part, tend to describe a forgery as possessing "a sufficient number of features . . . in common with [an] original [so as to be] capable of fooling somebody."23 Thus, one might characterize a forgery as: (1) an imitation of something; that (2) is intended to deceive someone, or is capable of deceiving someone, as to the provenance of the work. To take painting as our vehicle, a forgery might consist of a work that duplicates an existing painting as closely as possible, duplicating even the signature of the original artist. In most cases, a person who creates such a work intends others to believe (mistakenly) that the duplicate is, in fact, the original. Let us characterize this type of forgery as a "deceptive reproduction."
But a person who copies does not always intend to deceive. In 1888, for example, Vincent van Gogh created four different paintings of sunflowers to decorate a...