Professor Rebecca Tushnet’s recent article Worth a Thousand Words: The Image of Copyright elucidates a number of difficulties in copyright that flow from judicial failures to treat images consistently and rigorously. She argues that courts both assess copyrightability and evaluate potential infringement in ways that rely on a naïve understanding of the way artists create, and indeed, the way viewers receive works of art. The problem is particularly pronounced with respect to what Tushnet calls non-textual works because copyright law’s default to textuality means that the tools and methods that judges use misalign with the objects of their examination.
In this Article, I explain why I am less than fully convinced by Tushnet’s exclusive focus on the visual (or visual exceptionalism). I argue that copyright’s adjudication of all expressive works, not simply visual ones, falls short of ideal. Tushnet’s illuminating analysis helps us see partly why that is. Expressive works—whether visual or verbal or constituted in some other fashion, such as aural, or kinetic—pose a particular and typically unacknowledged problem for courts. Tushnet shows us how, in dealing with images, courts abandon interpretation, or believe it unnecessary. Images are either interpretively opaque—too difficult or impossible to see through and thus adjudicate—or they are transparent—too obvious to necessitate interpretation. Tushnet’s emphasis is on the visual yet her powerful insight may be used as a lens through which to understand copyright’s problems with all expressive works. All expressive works require an interpretive step that courts do not typically acknowledge, a step that delineates what method of interpretation a court will adopt. Thus all cases involving expressive works stand to benefit from the improvements and
adjustments Tushnet proposes.
This Article calls into question the difference Tushnet builds between visual works and other kinds. I argue that while differences between the visual and the verbal do in some instances exist, the differences may not hold the weight that Tushnet’s visual exceptionalism attributes to them. These differences may, as Tushnet discusses, be the product of such far-ranging causes as cultural construction, or innate biological tendency; and or they may be a function of pragmatic considerations embedded in technical and institutional and generic contexts, as I argue. Both visual and verbal modes of expression conform to, or resist or rework, generic and theoretical conventions (such as romance, pastoral, noir, the sentimental; or realism, modernism, surrealism, avant-gardism, postmodernism, respectively). Whether or not it acknowledges it openly, copyright law traffics in aesthetic theories when it deals with artistic works. It follows therefrom that if copyright suffers from aesthetic naiveté, images and words probably suffer equally. If this view is accurate, the issue is less one of visual exceptionalism, and more one of copyright’s need to develop a more finely tuned (or simply more consistent) way of treating expressive works. A fix offered for one might also be a fix well-suited to the others.