24 October 2011

Still Life With Link Sausages

The unlaid plans of mice (and men) aft gang awry, as in the last few days here at Casa de Lawshark. Two sleepless nights in the last four, an inquiry on HathiTrust that I have to finish up (hopefully today) before continuing to blawg on that monstrosity, and the usual variety of nonsense make for a particularly underdone platter of link sausages.

  • A blog entry hosted at the LAT this morning discusses one of the many, many holes in the Copyright Act: droit de suite, the collection of fees from later sales of pieces of art for the benefit of the artist similar to royalties from the sale of copies of books or recorded music. Interestingly enough, the piece links to two law review articles... and commendably to the two most-relevant ones, not just two by random California law-and-culture vultures. (Yes, they do exist; in fact, there's a law school in the LA area with a near-plurality of faculty fitting that description!)

    I do beg to differ with one aspect of the prevailing analysis of droit de suite, though, and recorded music provides a hint of the problem. The Copyright Act concerns itself with the right to copy; everything else in and around it is (or, to the cynic, is peripherally related to) concerned with ensuring that such a right — but not obligation — remains with the creator of a covered work. Musical compositions are a special case, though; the statute recognizes that there's a difference between a performance of a piece of music — something that can be technically copied only for the ear — and the composition itself. Unfortunately, the cooptation of ASCAP and BMI by recording companies, or by "music publishers" with substantial recording interests, has too often led to improper conflation of these distinct interests. One might argue that book publishers are trying to do the same thing with e-book rights, but that's neither new (given publishers' insistence on controlling derivative works like audio rights) or quite the same thing (as arguing over the form of a reproduction is still an argument over the essentially-unaltered reproduction).

    Picasso, GuernicaIn any event, it's a fascinating blog entry that fails to grapple with the "copy versus original" problem at the root of droit de suite... which is not surprising, as droit de suite itself fails to grapple with that problem, largely by assuming it away based upon technological copying capability at the time droit de suite (and related measures, such as the California provision being discussed in the blog entry) became committed to print. Then there's the philosophical question of the relationship between a copy of a work of visual art and the "original"... and whether that matters. As an obvious example, comparatively few people have ever visited the Museo Nacional Centro de Arte Reina SofĂ­a in Madrid and actually seen Guernica; the "meaning" of the original, though, does not seem to relate all that closely to, or be limited to, a quarter of a square meter of canvas.

  • There's a much deeper question of the relationship between money and the visual arts to consider, too — and the money-laundering aspect "Prospero" evokes is just a window into "patronage." Authors need to have at least some awareness of this, too, because many current publishing contracts with their excessive noncompete clauses and attempts to take ownership of the author's name come close to reestablishing patronage in a particularly vile form, as Kiana Davenport has discovered.
  • Yesterday's NYT included a thought-provoking article against "simplification" as a universal lifestyle in response to mental health conditions that desperately needs consideration in the American education system. It is perhaps easier to consider in the context of a more-visible, physical disability. A world-class wheelchair rugby player is simultaneously disabled and gifted... but the American education system, even more so than the rest of the American politicoeconomic structure, denies that possibility, instead demanding that one be considered either exclusively disabled or exclusively gifted in order to obtain any of the benefits of/for that status. One might wonder if Jared Loughner's personal history contains any consequences of that false dichotomy (or "trilemma," as the "normal" region is also involved in the consideration); I simply do not know, but neither would I be surprised, as implied by a few passages concerning Ms Myrick's own situation and Ursula K. Le Guin's story "Vaster Than Empires and More Slow."