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
SUMMARY

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, ... (see full summary)

 
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605
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. BACKGROUND FOR THE ORDINARY OBSERVER IN COPYRIGHT
LITIGATION ............................................................................ 620
B. ARNSTEINS LEGACY AND THE ORDINARY OBSERVER ................ 621
IV. READER RESPONSE THEORY AND ITS RELEVANCE FOR COPYRIGHT
LAW ............................................................................................... 624
A. READER RESPONSE THEORY AND LOUISE ROSENBLATT .............. 624
B. ROSENBLATTS READER AND THE TRANSACTIONAL THEORY OF
READING ................................................................................. 627
V. AN APPLICATION OF ROSENBLATTS THEORY OF READING ........... 628
A. A RANGE OF POSSIBLE READINGS.............................................. 629
B. A STRAIGHTFORWARD READING TO MAKE BASIC SENSE OF THE
TEXT ...................................................................................... 633
VI. A TRANSACTIONAL APPROACH TO COPYRIGHTS INFRINGEMENT
ANALYSIS ....................................................................................... 635
A. EFFERENT READING IN COPYRIGHTS INFRINGEMENT
ANALYSIS ................................................................................ 637
B. AESTHETIC READING IN COPYRIGHTS INFRINGEMENT
ANALYSIS ................................................................................ 638
C. INSTRUCTING JURIES MORE EFFECTIVELY .................................. 639
D. INCORPORATING SPECIAL VERDICTS ......................................... 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 critic1
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/musi c/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/20150201/070 20329869/blurred-lines-copyright-lawsuit-get s-
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.”).

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