Copyright Infringement and the Fiction of the Work

Chicago-Kent Law Review Volume 68 Issue 2 Symposium on Intellectual Property Article 9 Law Theory April 1993 Beyond Mataphor: Copyright Infringement and the Fiction of the Work Robert H. Rotstein Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Robert H. Rotstein, Beyond Mataphor: Copyright Infringement and the Fiction of the Work, 68 Chi.-Kent L. Rev. 725 (1992). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol68/iss2/9 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. BEYOND METAPHOR: COPYRIGHT INFRINGEMENT AND THE FICTION OF THE WORK* ROBERT H. ROTSTEIN** "After changes upon changes, we are more or less the same."1 INTRODUCTION It would be unthinkable for a court to decide a patent or a products liability case without at least trying to understand how the new invention works or how the supposedly defective product malfunctioned. Patent courts, for example, do not hesitate to employ the latest scientific and engineering concepts in reaching decisions. In sharp contrast, although copyright law regulates the literary "work," it has largely ignored the insights of contemporary literary criticism-the branch of scholarly in- vestigation that is concerned with how "works of authorship" operate. On the theory that courts cannot make truly intelligent determinations about the subject of copyright without understanding how that subject functions, this Article examines copyright law in light of principles of contemporary literary criticism. The quotation at the beginning of this Article provides a starting point for that examination. At their 1981 reunion concert in New York's Central Park, singers Paul Simon and Art Garfunkle performed the song The Boxer before an estimated crowd of 500,000.2 On hearing the lines quoted above, the vast audience cheered in unison. At that moment, the audience members were engaged in an act of interpreting a literary work. Translated into copyright parlance, this was an example of "audience response."' 3 During the 1960s, Simon & Garfunkle were highly successful recording artists.4 They first released a recorded version of The Boxer in * Copyright 0 1993 Robert H. Rotstein ** Partner, Rosenfeld, Meyer &Susman, Beverly Hills, California. I am especially indebted to Peter Jaszi for his insights and his encouragement. I am also grateful to Mark Rose, Wendy Gordon, and Kenneth Port. An earlier version of this paper was presented at the University of California Humanities Research Institute. 1. PAUL SIMON, The Boxer, on THE REUNION CONCERT IN CENTRAL PARK (Columbia Records 1981). 2. Rhymin'Simon Packs 'em in, USA TODAY, August 16, 1991, § IA (reporting on Simon's 1991 solo concert in Central Park and describing the previous 1981 concert). 3. See infra text accompanying note 233. 4. See DAVE MARSH, THE HEART OF ROCK & SouL 509 (1989). CHICAGO-KENT LAW REVIEW (Vol. 68-725 1969, later performing the song at live concerts.5 In those early live per- formances, the quoted lines did not elicit any particularly noteworthy 6 response from the audience. In 1970, the pair ended their relationship. The 1981 reunion concert marked the first time that they had performed together in concert since. Between 1969 and 1981, therefore, something had changed, resulting in an audience response to The Boxer different from the one that the song had previously elicited. The example of The Boxer reflects concerns raised in much contemporary literary thought, concerns that have significance for the current system of copyright. On the one hand, the song The Boxer did not, over the years, have a single identity. That is, the audience response to the song was sensitive to context. Indeed, even verbatim renditions occur- ring only a few years apart evoked different responses and generated, it could be argued, different songs. Put differently, the identity of the song did not depend on something inherent in the "song." The audience's response to the song related to factors external to the song-age of the audience, experiences during the 1960s, familiarity with the performers' work, and undoubtedly other cultural and social factors. The question for copyright law becomes whether this mutability of a work of authorship somehow renders a trier of fact unable to make determinations of similarity, determinations that would seem to depend on the works under scrutiny having a fixed identity. On the other hand, the example of The Boxer shows that much about acts of interpretation is determinate within a particular context. Empirically and given a common discourse, a large group of people-an "audience"--can agree on many things about a work's meaning and can even immediately respond to the work in the same way. Many in the large audience in Central Park shared strategies of interpretation and response. Evidence could be brought to bear as to why the audience members responded differently from the way they had in the late 1960s, yet also why the audience nevertheless regarded the two renditions of the song (the song as performed in 1969 and the song as performed in 1980) as "substantially similar" (in fact, identical). The question becomes for copyright whether the law can adequately identify those factors that allow an audience to react consistently to a particular work, such that tri- ers of fact can meaningfully compare two works to determine whether infringement has occurred. 5. Id The original recorded version of the song omitted the verse containing the lines quoted at the beginning of the section. See PAUL SIMON, The Boxer (Columbia Records 1969). 6. See DAvE MARSH, ENCYCLOPEDIA OF Rocic AND ROLL; THE 1001 GREATEST SINGLES EVER MADE (1991). 1993] BEYOND METAPHOR The central thesis of this Article is that current copyright dogma does not recognize that so-called "works of authorship" are, as the Si- mon & Garfunkle example shows, unstable and dependent on context. Copyright law, rather, embraces the notion of the "work"-purportedly an autonomous entity akin to an object. According to copyright law, the "work" supposedly has immutable characteristics that allow judges and juries to determine originality, scope of protection, substantial similarity, and fair use merely by interpreting the words on the page (or the pictures on the screen or the sounds on the recording). Contemporary literary theory has vigorously debated the significance of the mutability of "works of authorship." Most importantly, recent literary thought calls into question copyright law's idea of the "work," instead positing the concept of "text. ' 7 "The 'text' may be literary, visual, or aural (or any combination of these); whatever form it takes, it is created not in the act of writing but in the act of reading." s Unlike the stable and autonomous "work," which the law treats as akin to an object, the text is a process- an act of speech that occurs when a member of an audience (a reader, viewer, listener, computer operator) interacts with the textual artifact (that is, the book, motion picture, song, or computer program).9 Thus, for example, the song The Boxer in 1969 was a different "text" from The Boxer in 1981, because the listeners in each case "created" different texts. It is not surprising that literary theorists themselves have begun to issue direct challenges to the present system of copyright.' 0 And indeed, the concerns of contemporary literary thought parallel those of copyright law. Recent theory has questioned the concepts of "work," "author," "audience response," and "similarity," concepts that provide the under- pinnings for much of current copyright doctrine. If contemporary critics are correct that the "text" is not immutable, then copyright law's idea of the "work" as an autonomous object capable of consistent interpretation is theoretically unsound. This Article demonstrates that, in many crucial instances, the belief that the "work" is fixed and autonomous results in wrongheaded reason- 7. Eg., Roland Barthes, From Work to Text, in TEXTUAL STRATEGIES: PERSPECTIVES IN POST-STRUCTURALLST CRITICISM 73 (Josue V. Harari ed., 1979) (hereinafter TEXTUAL STRATEGIES]. 8. Peter Jaszi, Toward A Theory of Copyright: The Metamorphoses of 'Authorship," 1991 DUKE LJ. 455, 458 n.9 (1991). This Article will use the term "text" in this sense. It will use the term "work" to refer to the notion that the text has its own autonomy, akin to an object. See infra part I.B. 9. See infra part I.F. Similarly, while copyright embraces the notion of "author," much contemporary literary theory has questioned the usefulness of this concept. The seminal challenge comes from Michael Foucault, What IsAn Author?, in TEXTUAL STRATEGIES, supra note 7, at 141. 10. See, e.g., infra note 59 and accompanying text. CHICAGO-KENT LAW REVIEW [Vol. 68:725 ing and unsatisfactory decisionmaking. 1 After briefly tracing the histor- ical development of the literary constructs of "work" and "text," the Article examines the key tenets of copyright-originality, idea/expres- sion, substantial similarity-in light of current literary thought. As to each of these tenets, the Article first examines copyright's view of the text, concluding that the central assumption underlying current copyright doctrine is that the "work" is fixed and autonomous. The Article next posits that, as to each aspect of copyright law, the concept of "work" can lead to highly problematic techniques of decisionmaking. In particular, the concept of "work" fosters the illusion that a judge or jury can find a single valid interpretation of a work in a copyright case and on that basis make sound decisions.

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