What's wrong with intentionalism? Transformative use, copyright law, and authorship.

Author:Picozzi, Ben

NOTE CONTENTS INTRODUCTION I. TRANSFORMATIVE USE A. Modern Fair Use Doctrine B. Fair Use and Intentionalism C. Transformative Use Meets Appropriation Art II. THE ANTI-INTENTIONALIST CRITIQUE A. The Intentionalism/Anti-Intentionalism Debate B. Judging Anti-Intentionalism 1. Free Expression 2. Aesthetics 3. Uncertainty III. WHITHER TRANSFORMATIVE USE? A. Dual Standards B. Categorial Intentionalism C. Incentives To Create CONCLUSION "Considering the philosophic intelligence that has set out to discredit it, intentionalism in critical interpretation has shown an uncanny resilience."

--Denis Dutton (1)


Do an artist's intentions affect the meaning of her work? Should courts consider a defendant's intentions when deciding whether an accused work is "transformative"? A growing number of copyright scholars argue that they should not. In their view, courts should abandon the transformative use standard, at least as currently conceived, because it relies on an "intentionalist" theory of interpretation that conflicts with the goals of contemporary art and copyright law. Under that standard, an otherwise infringing work is fair use if it "adds something new" to the copyrighted work, "with a further purpose or different character, altering [that work] with new expression, meaning, or message." (2) Since the Supreme Court adopted transformative use in Campbell v. Acuff-Rose Music, Inc., courts have fashioned the standard into a flexible instrument for protecting creative expression. (3)

Surprisingly, however, several scholars who otherwise support strong fair use protections have joined expansionists in calling for transformative use's abandonment or modification. By equating transformativeness with "expression, meaning, or message," (4) they argue, transformative use assumes that there is an artist behind the work whose intentions determine the work's artistic meaning. This assumption, opponents of intentionalism believe, is wrong. Following prominent artists and art critics, (5) opponents argue that courts should embrace "anti-intentionalist" strategies, which focus on the viewer's perceptions of the work, not the artist's intentions. (6) Although these arguments have their foundation in contemporary art theory, they apply broadly to all works of artistic expression. (7)

Arguments against intentionalism come in several forms. Strong versions of the anti-intentionalist critique hold that courts should never consider the defendant's artistic intentions. For example, Amy Adler argues that courts should abandon the transformative use test and adopt a market-based analysis, drawing on critical theory for support. (8) As she explains, "To search for meaning by relying on the author's intent would be to ask precisely the wrong question, to miss that the author is dead and that the work is now living its own life." (9) Transformative use, she concludes, denies that life by encouraging courts to use the defendant's intent "as a straightforward way to get at the question of transformativeness." (10)

Weaker versions of the anti-intentionalist critique hold that courts should not consider the defendant's intentions when viewers of the accused work would not do so. In particular, Laura Heymann argues that courts should "reconceptualize" the transformative use standard to shift the focus of the fair use inquiry to the viewer's response. (11) Because all art is "representational" in the sense that it is a "copy" of something else, she contends, fair use should not be concerned with "what an author does when she creates--whether the second author changes the first author's expression in some ascertainable or substantial way--but rather whether the reader perceives an interpretive distance between one copy and another." (12) Adler and Heymann are not alone, and several other scholars have criticized transformative use on anti-intentionalist grounds. (13)

Despite growing criticism of intentionalism, courts have not adequately defended fair use doctrine's reliance on artists' intentions. Following Campbell, courts frequently ask whether the defendant intended to alter the copyrighted work's "expression, meaning, or message." (14) If they find that the defendant's intentions are transformative, courts generally hold that the accused work is fair use, even if that work does not actually alter the copyrighted work's content. (15) However, in reaching these conclusions, courts have not justified their reliance on intentionalism, instead appealing to Campbell's formula for transformativeness. Indeed, even when coui'ts have found transformativeness based on the defendant's intentions alone, they have done so unreflectively, without considering the stakes of the debate between intentionalism and anti-intentionalism. (16)

Furthermore, recent decisions suggest that intentionalism's hold on transformative use may be slipping. In Cariou v. Prince, (17) the Second Circuit held that courts may properly ignore the defendant's intentions if the content of the accused work is sufficiently transformative. In the court's view, whether a work is transformative depends on "how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work." (18) Applying this rule, the court found that most of the accused works were fair use because of observable differences between the copyrighted and accused works. (19)

This Note makes two contributions to the debate over intentionalism in copyright law. First, this Note defends transformative use's intentionalism against critics. So far, scholars and jurists have allowed opponents of intentionalism to advance their conclusions largely uncontested. (20) Accordingly, this Note attempts to move copyright scholarship to a more balanced discussion of intentionalism's strengths and weaknesses. Second, this Note describes several strategies that courts could adopt in deciding whether a particular work was transformative given the unsettled nature of the debate between intentionalism and anti-intentionalism. Although superficially similar to existing approaches, both strategies provide an organizing framework for making transformative use determinations that preserves reference to the defendant's intentions while avoiding the full force of anti-intentionalist arguments.

This Note proceeds in three parts. Part I discusses modern fair use doctrine and the emergence of anti-intentionalism in copyright law. This discussion illustrates the motivations that animate anti-intentionalist proposals and provides a doctrinal platform for the analysis that follows. As this Part explains, the Second Circuit's trilogy of appropriation art cases drives much of the opposition to transformative use's intentionalism. (21) Although the debate between intentionalism and anti-intentionalism transcends appropriation art, and even contemporary art, these cases remain influential, both theoretically and doctrinally. (22)

Part II advances three arguments in support of intentionalism. First, intentionalism is arguably more consistent with fair use's status as a First Amendment accommodation. Many First Amendment doctrines require courts to consider the defendant's intentions in determining her liability for the harmful effects of her speech. Likewise, many leading First Amendment theories, which view the First Amendment in terms of the speaker's interests, support the use of intentionalist standards. Although competing theories provide weaker support for intentionalism, they have difficulty explaining the First Amendment's application to art.

Second, aesthetic theory provides greater support for anti-intentionalism than opponents of intentionalism assume. AlthotLgh opponents frequently contend that anti-intentionalism has won the debate, the reality is more complex. Since anti-intentionalism's emergence, philosophers of aesthetics and scholars in related disciplines have responded by challenging anti-intentionalism's premises. However, neither proponents nor opponents of intentionalism have critically examined these arguments. Instead, the debate over transformative use has proceeded in isolation from the broader dialectic between intentionalism and anti-intentionalism. Consequently, opponents of intentionalism treat unsophisticated anti-intentionalist arguments as decisive, when their status is much more uncertain. (23)

Third, intentionalism generates no more unpredictability than anti-intentionalist alternatives. Indeed, the proposals suggested by opponents of intentionalism, such as greater reliance on art markets and art critics to determine a work's significance, are highly unreliable, and their use would likely not produce greater consistency in outcomes. At the same time, intentionalism may not be the true cause of unpredictability in transformative use analysis. The multifactor, all-or-nothing structure of the fair use defense provides a plausible alternative explanation for apparent inconsistences in transformative use's application.

To be clear, the purpose of this discussion is not to establish that anti-intentionalism is invalid as an aesthetic theory or that fair use should exclusively focus on the defendant's intentions. Indeed, as the strategies proposed in Part III admit, intentionalism and anti-intentionalism remain controversial within the philosophy of aesthetics and related disciplines. Rather, this Note argues that there are legally persuasive reasons for taking the defendant's intentions into account in many cases and that these justifications should be integrated into fair use law.

Accordingly, Part III describes two strategies for preserving transformative use's reference to the artist's intentions while accommodating anti-intentionalist concerns, in accordance with the unsettled nature of the debate between intentionalism and anti-intentionalism. Under a "dual standards" strategy, courts would consider both whether the defendant...

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