A Transactional Theory of the Reader in Copyright Law

• Author: Zahr K. Said
• Position: Associate Professor, University of Washington School of Law
• Pages: 605-650

A Transactional Theory of the Reader in Copyright Law Zahr K. Said * ABSTRACT : Copyright doctrine requires judges and juries to engage in some form of experiencing or “reading” artistic works to determine whether these works have been infringed. Despite the central role that this reading—or viewing, or listening—plays in copyright disputes, copyright law lacks a robust theory of reading, and of the proper role for the “reader.” Reading matters in copyright cases, first, because many courts rely on the “ordinary observer” standard to determine infringement, which requires figuring out or assuming how an ordinary observer would read the works at issue. Second, most courts characterize a key part of infringement analysis as a matter for the jury, largely on the basis of the jury’s ability to apply the ordinary observer standard. But the ordinary observer concept has not received much attention as a feature—really, a bug—in copyright law. The ordinary observer standard is unclear both in theory and in practice, and it misaligns with how jurors (or judges, or ordinary people) actually experience works of art. As a result of persistent confusion about the role of the ordinary observer, many cases produce outcomes that distort copyright doctrine and create unfairness for litigants. This Article demonstrates the need in copyright law for a better understanding of how readers read works of art, and it proposes a theory of reading from the humanities. Louise Rosenblatt’s theory of transactional reading helps diagnose copyright law’s reading problem and offers support for * Associate Professor, University of Washington School of Law. Many thanks to Clark Asay, Stephanie Bair, Shyam Balganesh, Chris Buccafusco, Mike Burstein, Ryan Calo, Julie Cohen, Rebecca Curtin, M.J. Durkee, Dave Fagundes, Andrew Gilden, Brad Haque, Paul Heald, Laura Heymann, Anita Krug, Mark Lemley, Jacqueline Lipton, Lisa Manheim, Liz Porter, Betsy Rosenblatt, Matt Sag, Pamela Samuelson, Andrew Stauffer, Rebecca Tushnet, and David Ziff. Special thanks to the redoubtable Jane Pryjmak, for truly outstanding research assistance. This Article benefited enormously from feedback received on various versions of the work at the Junior Scholars in Intellectual Property Workshop at Michigan State University (2016); the BYU IP Colloquium (2016); the IP Colloquium at Cardozo University (2016); the University of Pennsylvania First Annual Copyright Roundtable (2015); the Law and Society Association Annual Conference (Seattle, 2015); a Northwest Copyright Society Panel (Seattle, 2015); the Intellectual Property Scholars Conference (De Paul, 2015); the University of Washington Legal Methods Workshop (2015); and WIPIP (UW Law, 2015). UW Law librarians provided fantastic research assistance; they spoil our faculty every day. 606 IOWA LAW REVIEW [Vol. 102:605 several concrete prescriptions. Instead of assuming that reading is a one-size-fits-all process, a transactional theory suggests that reading depends on why one reads and who does the reading. A less simplistic, more dynamic, and phenomenologically informed model of reading could help reshape the ordinary observer standard. This Article proposes that copyright adopt four changes: (1) more work should be done by judges as a matter of law, thus narrowing the role of the jury in determining infringement; (2) expert evidence ought to play a greater role in copyright litigation; (3) the jury should be instructed to do a more informed kind of reading when it evaluates works of art for infringement; and (4) courts should explore the use of special verdicts to render jury deliberation more transparent. These changes will mitigate the problems of the ordinary observer standard, while capturing its strengths. I. INTRODUCTION ............................................................................. 607 II. A THOUGHT EXPERIMENT ............................................................ 615 III. AN ASSESSMENT OF THE ORDINARY OBSERVER STANDARD IN COPYRIGHT LAW ........................................................................... 619 A. B ACKGROUND FOR THE O RDINARY O BSERVER IN C OPYRIGHT L ITIGATION ............................................................................ 620 B. ARNSTEIN’ S L EGACY AND THE O RDINARY O BSERVER ................ 621 IV. READER RESPONSE THEORY AND ITS RELEVANCE FOR COPYRIGHT LAW ............................................................................................... 624 A. R EADER R ESPONSE T HEORY AND L OUISE R OSENBLATT .............. 624 B. R OSENBLATT ’ S R EADER AND THE T RANSACTIONAL T HEORY OF R EADING ................................................................................. 627 V. AN APPLICATION OF ROSENBLATT’S THEORY OF READING ........... 628 A. A R ANGE OF P OSSIBLE R EADINGS .............................................. 629 B. A S TRAIGHTFORWARD R EADING TO M AKE B ASIC S ENSE OF THE T EXT ...................................................................................... 633 VI. A TRANSACTIONAL APPROACH TO COPYRIGHT’S INFRINGEMENT ANALYSIS ....................................................................................... 635 A. E FFERENT R EADING IN C OPYRIGHT ’ S I NFRINGEMENT A NALYSIS ................................................................................ 637 B. A ESTHETIC R EADING IN C OPYRIGHT ’ S I NFRINGEMENT A NALYSIS ................................................................................ 638 C. I NSTRUCTING J URIES M ORE E FFECTIVELY .................................. 639 D. I NCORPORATING S PECIAL V ERDICTS ......................................... 642 2017] A TRANSACTIONAL THEORY 607 VII. CONCLUSION................................................................................... 645 APPENDIX………………………………………………………………… 648 I. INTRODUCTION “Ultimately, the Blurred Lines case isn’t so much about the scope of copyright protection . . . It’s about the strange, unpredictable entity that is the American jury doing whatever it is an American jury does while we’re not looking.” — Keith Harris, music critic 1 In 2015, a highly publicized copyright infringement lawsuit over the allegedly infringing song, Blurred Lines , led a jury to award the heirs of Marvin Gaye’s estate $7.3 million in damages. 2 The case was noteworthy because of the notoriety of the song, the large amounts of money at stake, and the celebrity litigants. Yet for copyright law, it also represented a problematic allocation of authority to jurors on questions they were ill-suited to resolve, and poorly instructed to answer. 3 First, the court allowed jurors to compare the works of Gaye and the Williams–Thicke team without clearly delineating what was copyrighted (Gaye’s composition only) as against the many elements that were not copyrighted in this case (Gaye’s falsetto, and any other performance embellishments not present in the sheet music) or that could not be copyrighted (all the musical ideas, or stock elements common to soul or funk as a genre more generally). 4 This is a problem of miscalibrating the scope of copyright protection and overprotecting things which the defendant did not, or could never protect through copyright law, and the court properly 1. Keith Harris, The Blurred Lines Verdict Proves Only One Thing: You Can’t Second-Guess a Jury , GUARDIAN, http://www.theguardian.com/music/musicblog/2015/mar/11/the-blurred-lines-verdict-pharrell-robin-thicke-marvin-gaye (last modified July 13, 2016, 3:51 AM). 2. Ted Johnson, Judge Rejects New ‘Blurred Lines’ Trial , VARIETY (July 14, 2015, 7:24 PM), http://variety.com/2015/music/news/blurred-lines-pharrell-williams-robin-thicke-120154057. The jury initially awarded $7.3 million in damages, but the court later reduced damages to $5.3 million. Id. 3. Wendy Gordon, Opinion, The Jury in the ‘Blurred Lines’ Case Was Misled , NEWSWEEK, (Mar. 18, 2015, 2:30 PM), http://www.newsweek.com/jury-blurred-lines-case-was-misled-314856; Kal Raustiala & Christopher Jon Sprigman, Squelching Creativity: What the “Blurred Lines” Team Copied is Either Not Original or Not Relevant , SLATE (Mar. 12, 2015, 12:27 PM), http://www.slate.com/articles/news_and_ politics/jurisprudence/2015/03/_blurred_lines_verdict_is_wrong_williams_and_thicke_did_not_inf ringe_on.single.html; Tim Wu, Why the “Blurred Lines” Copyright Verdict Should be Thrown Out , NEW YORKER (Mar. 12, 2015), http://www.newyorker.com/culture/culture-desk/why-the-blurred-lines-copyright-verdict-should-be-thrown-out. 4. Wu, supra note 3 (noting that Gaye had never complied with the formalities necessary to registering a copyright in the sound recording, and thus owned only the copyright in the composition, or sheet music, not in his performance of it); see also Mike Masnick, Blurred Lines Copyright Lawsuit Gets Funky as Judge Delves into the Blurred Lines of What’s Really Copyrighted , TECHDIRT (Feb. 2, 2015, 8:02 AM), https://www.techdirt.com/articles/20150201/07020329869/blurred-lines-copyright-lawsuit-gets-funky-as-judge-delves-into-blurred-lines-whats-really-copyrighted.shtml (“The judge properly noted that only part of the song is actually covered by copyright, and it would be hellishly unfair to use the elements of the song that are not covered by copyright (including Gaye’s voice) to prejudice the jury.”). 608 IOWA LAW REVIEW [Vol. 102:605 acknowledged this error on appeal. 5 Second, the court instructed jurors using 43 complex, unclear, and arguably incorrect instructions that further contributed to the doctrinal muddle. 6 Indeed, the case probably presented questions more appropriate for a judge than a jury, and it may have been reversible error to send it to the jury in the first place. 7 Though this case was exceptional in the sense of the fame and money involved, it was all too representative of copyright’s inconsistent operation with respect to juries. Most copyright cases do not wind up in jury deliberation, perhaps partly because of the problem of...