Cohen: Performance; Profit?

Rebecca's point about performance is important, and links up to the comment I made in my opening post about the dimension of physicality.  An example that I mentioned was manipulating copies (so, the situated user asserting control over the cultural artifact, whether a physical object or a digital file).  Performance might be understood as inserting oneself *into* the "work" - what's important here is not the physicality of the artifact but the physicality of the self, and the ways in which performance alters the experience of the work and becomes another way of working "through culture."  In either case understanding the "work" (there's a reified construct for you) as the primary unit of analysis misses something vitally important about the process of working through culture.

If one accepts the premise that copyright should respect performance as a mode of experience even when it's "public" in the technical sense, the question remains whether it should matter that there was a charge for admission to the Buffy show.  (I suppose one other possibility is that the admission charge for Buffy covered only expenses, much as one can make photocopies in the library and still have to pay for paper.)  This seems conceptually related to the question whether it should matter that the creator of the SAT (the Seinfeld trivia guide) later turned a profit on it.

I haven't yet reached a comfortable resolution on the profit question, but I'm inclined to think that (although a for-profit cutoff might be politically more palatable) profit shouldn't matter.  I suspect there may be more disagreement here.

Comments

[David McGowan]

Julie--

Suppose we accept that performing a work, or even seeing it performed, is materially different from other ways of interacting with a work. That certainly seems true, especially for the performers.

I do wonder what follows, though. I know of no one who disputes this point. I know of no “all means of dealing with works are the same” school that needs refuting. Presumably this claim supports the argument that the values advanced by performance justify modifying or doing away with the derivative right and the performance right?

Apropos of this claim (which I hope is not an unfair characterization of the one you intend to make), as the situated user has emerged in this discussion, I see him or her having two characteristics. One is that s/he is a serendipitous discoverer of works. The user is caught up in what Jeremy Waldron called the cultural maelstrom of ideas, moving in some unpredictable, unsystematic fashion among whirling bits of culture, absorbing them (perhaps without knowing it) and combining and recombining them in all sorts of ways.

I do not see how this aspect of the situated user adds to the main argument, however. Performance would be transformative and valuable, and a form of play, for a user who did nothing but read the great books in order, or followed some other unusually planned course of instruction. Serendipity is a way of thinking about encountering bits of culture, not a way of thinking about different uses of a bit of culture once it is encountered and thought about, which is what the Buffy example is all about. There is nothing accidental about that performance.

The second characteristic is that the situated user relies on culture. One specific version of what I see as your argument is that reliance on works, because inevitable, implies a right to use works. As Waldron put this idea, the cultural environment, "having been thrust upon us by those in whose interests cultural commodities circulate, is now the only one we have, so that it is now in a sense unfair to deny us the liberty to make of it what we will.”

This claim does provide quite a boost to what I am calling your argument. It is more an argument about reliance and necessity, however, than it is about the manner in which people are situated relative to works. In other words, it doesn’t matter how you encounter “our shared culture,” or whatever phrase you wish to use (I think all have significant problems) it is still the only one you’ve got so, situated or not, you still have (or don’t) the right Waldron claims. (I would note that the reliance notion is more debatable than the claim that performance has distinctive value.)

Which brings me to your profit question. As I read your paper, situatedness is a fact of life; it is the way things are. If we accept that premise, then a user is situated regardless whether s/he plays or performs for profit. In that case, your instinct that payment should not matter is consistent with the notion of situatedness, though as I have said I do not see how that notion advances the argument. It is not consistent with the conventional utilitarian account, in which payment implies a market opportunity the author could exploit. Ed Baker might have a different view of the profit motive, too, though on non-utilitarian grounds.

I hope thse comments are close to the mark. Perhaps I misunderstand the purpose of this construct. Should we perhaps understand the situated user idea not as an analytical tool designed to show that some premise entails some conclusion, but rather as term whose utility lies in creating a perspective that emphasizes some of the claims relevant to any given copyright policy debate and de-emphasizes others?

DM

[Dave]

This post and Rebecca’s raise a related point about the situated user: does this perspective make irrelevant the idea of transformative use (TU) as a threshold criterion for fair use (FU)? Though courts have never held that TU is the sine qua non of fair use (and, in light of the way the statutory defense is constructed, couldn’t), lots of commentary (Leval, and Patry’s post in this thread) and cases (Acuff) suggest that it is a central if not primary way to think about what uses are fair. This approach seems to fit with both the economic and the romantic user paradigms. If a use is transformative, then it’s less likely to compete with the market for the original (well, maybe—the Buffy example seems to complicate this). Also, TU is more likely to be romantic because the user is doing something original with the copyrighted work; slavish copying is hardly romantic.

But the situated-user perspective—with the corresponding focus on the process of creation instead of end product—seems to moot the concern with TU. If what matters is the extent to which users are interacting with culture, then it’s very plausible to imagine lots of cases where this standard would approve uses that fall well short of what courts have long held transformative. Jeff Koons’ “String of Puppies”, for example, certainly counts as working with and commenting on culture, though it was held insufficiently transformative to count as fair use under the statutory standard.

This relates to the profit question. The concern with seeing copyright from the situated-user perspective is that it seems to erase limits on subsequent use (derivative, transformative, performative, or otherwise). One could claim that this kind of limitlessness is unobjectionable, but if one thinks it’s a concern, then there might be value to using profit as a limiting principle. Subsequent works that turn a profit may be less likely to be the product of thoughtful interaction with culture and more likely to be simply commercial endeavors. Popular culture gives us some indication of this—-I think fanfic, performative reinterpretations, and postmodern art are all far more culturally interesting and valuable than the average sequel to a Hollywood blockbuster.

Focusing on profit as a limiting principle is familiar from the current statutory fair use test, but I’m suggesting consideration of profit for a different reason. Rather than being concerned about the damage done by the subsequent user on the copyright holder’s market, this use of profit would use it as a proxy for motive on the theory that profit-seeking is not really about engaging with culture and advancing progress, but rather is (at least some) evidence of free riding off someone else’s creativity to make a fast buck.

[Julie Cohen]

Dave: I'm uncomfortable using profit in this context as a proxy for anything, whether it's done in the standard way (as additional evidence that the derivative right has been invaded), in the form of a restitution-based analysis (as a proxy for motive to free ride), or in the interestingly perverse way you suggest in the middle of your comment, as a proxy for low cultural value. On the last point, I just don't think there's a reliable correlation either way. Some for-profit stuff is great and some amateur stuff is wretched, insipid, and banal. On the middle point, it doesn't explain why we should have a problem with free riding; after all, even the term free riding presumes some right or expectation that's been invaded.

David: Three comments -

1) Why can't serendipity be both a way of thinking about encountering bits of culture and a way of thinking about subsequent uses of the culture that is encountered? The first kind of serendipity relates to exposure and the second relates to experimentation. Historically there's a great deal of evidence that both kinds of serendipity play a key role in producing "progress".

2) My argument does, I suppose, invoke a version of necessity, but it isn't simply a reliance argument. You seem to assume that if it isn't an economic argument then it must be a natural rights argument of some sort (this is an occupational disease of law professors, I think). If anything, I suppose my argument is (very loosely) empiricist in spirit, in that it urges policymakes to examine the ways that people encounter/experience/experiment with/work through culture, to acknowledge the relation between all of those behaviors and the ongoing production of cultural and intellectual works, and to adjust copyright law accordingly. But of course the last part is normative (a vice that neither economic nor natural rights reasoning avoids, and about which both types of reasoning tend to be far more dishonest, so it doesn't much trouble me).

I am definitely in Leff's swamp, but it doesn't follow that the methods of the swamp are less rigorous simply because they are less sparse.

3) The situated user is an analytical tool intended to do two things. First, it's intended correspond more closely to the reality of what users do - so, I suppose, to be less artificial than the others. Of course some artificiality is inherent in the act of creating any construct, but all copyright analysis (and probably all analysis performed by humans) relies on constructs. Second, and relatedly, this particular construct is offered as a way of restoring emphasize to some of the claims relevant to copyright policy debates that current constructs deemphasize.