Steven Johnson, Lawrence Lessig, & Shepard Fairey at the NY Public Library on Mashup & Remix

The myth of authorship and the rise of a new artistic culture

As I’ve pointed out previously, my colleague and friend Martha Woodmansee‘s scholarship is fundamental to the reexamination of the historical bases of our present conceptions of “authorship”:

An “author” in the modern sense is the creator of unique literary, or artistic, “works” the originality of which warrants their protection under laws of intellectual property — Anglo American “copyright” and European “authors’ rights.”

Now Abram Sinnreich, in Mashed Up: Music, Technology, and the Rise of Configurable Culture, extends these insights into the quirks that have produced our notion of authorship and the ways the radical changes in the technological realities governing the creation and distribution of artistic works is undermines that notion. truthdig has posted a substantial excerpt, the entirety of which (like the book, no doubt) is well worth reading. Here’s just a taste, one that begins to develop the relationship between the current conventional wisdom of what an author is and its relationship to our social obsession with converting public goods into private property:

The biggest myth of all is the Romantic notion that artists somehow create their work uniquely and from scratch, that paintings and sculptures and songs emerge fully-formed from their fertile minds like Athena sprang from Zeus. Running a close second is the myth that only a handful of us possess the raw talent – or the genius – to be an artist. According to this myth, the vast majority of us may be able to appreciate art to some degree, but we will never have what it takes to make it. The third myth is that an artist’s success (posthumous though it may be) is proof positive of his worthiness, that the marketplace for art and music functions as some kind of aesthetic meritocracy.

Of course, these myths fly in the face of our everyday experience. We know rationally that Picasso’s cubism looks a lot like Braque’s, and that Michael Jackson sounds a lot like James Brown at 45 RPM. We doodle and sing and dance our way through our days, improvising and embellishing the mundane aspects of our existence with countless unheralded acts of creativity. And we all know that American Idol and its ilk are total B.S. (very entertaining B.S., of course!). Each of us can number among our acquaintance wonderful singers, dancers, painters or writers whose creations rival or outstrip those of their famous counterparts, just as each of us knows at least one beauty who puts the faces on the covers of glossy magazines to shame.

And yet, we believe the myths. How could we not? Who among us has the time, the energy, or even the motivation to buck the overwhelming support the myth of the Artist receives from the institutions that govern our society – to dispute our schools, our churches, even our laws? What is copyright, after all, but the legal assertion of an individual’s sole ownership over a unique artifact of creative expression? These laws, sometimes enforced at gunpoint, require us to believe the myths, or face the consequences.

Of course, there’s a reason the myths exist. Our economy runs on the privatization of hitherto public goods. Our legal system is premised on the individual as the locus of all rights, all liability, all blame. Our society’s profound inequalities are only acceptable because we believe ourselves to live in a meritocracy, a world where a person’s success is de facto proof of his or her inherent worthiness. In short, the myth of the Artist-with-a-capital-A allows us to believe in America-with-a-capital-A.

Richard Posner: Law Schools need to hire more professors who identify more strongly with legal practice.

From Richard Posner writing in honor of the memory of Bernard Meltzer:

What has happened since the 1960s—that watershed decade in modern American history—is the growing apart, especially but not only at the elite law schools, of the lawyer and the judge on the one hand and the law professor on the other hand. Law professors used to identify primarily with the legal profession and secondarily with the university. The sequence has been reversed. Law professors in that earlier era were hired after a few years of practice, on the basis of evidence (heavily weighted by performance as a law student) of possessing superlative skills of legal analysis. A law professor was expected to be a superb lawyer and to see his primary role as instructing generations of law students so that they would become good, and some of them superb, lawyers—instructing them by precept but also by example, by being a role model; and the role was that of a practicing lawyer. . . .

By the late 1960s this model was almost a century old and ripe for challenge. The challenges came from two directions, which though opposed to each other turned out to be complementary in their effect on the traditional model. . . .

These challenges to the conventional model of the law professor’s vocation so far succeeded as to bring about a fundamental change in the character of legal teaching and scholarship and the method of recruitment into academic law. From the challenge mounted by social science came a novel emphasis on basing legal scholarship on the insights of other fields, such as economics, philosophy, and history, and from the challenge mounted by the Left came a reinforcing skepticism about the capacity of conventional legal analysis to yield intellectually cogent answers to legal questions. These ideologically opposed challenges complemented each other by agreeing that the traditional model was narrow and stale.

The model was largely buried in these twin avalanches, especially in the elite law schools. . . .

Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy,or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense (“judgment”) of just how far one can go in stretching the limits of established legal doctrines to be absorbed. These things cannot be the entirety of the modern lawyer’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.

August 28, 1963

Why don’t law professors know how to be lawyers?

I’ve made plain my disdain for the ways law schools neglect what anyone outside law school faculties would presume is the central purpose of law schools — to train law students how to be lawyers. Among the ways this neglect manifests itself is the second class status accorded most clinicians and legal writing professors — those professors whose focus is on teaching practice — in most law schools. Now Brent E. Newton, an adjunct professor at Georgetown and the Deputy Staff Director of the U.S. Sentencing Commission) has written Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C. L. Rev. ___ (2010). Here’s a taste of Newton’s article:

Especially at law schools in the upper echelons of the U.S. News & World Report rankings, the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners. … Regardless whether they possess a Ph.D., a vastly disproportionate number of new law professors graduated from so-called “elite” law schools, which not coincidentally employ the largest percentage of impractical faculty. “Law professors are a self-perpetuating elite, chosen in overwhelming part for a single skill: the ability to do well consistently on law school examinations, primarily those taken as 1L’s, and preferably ones taken at elite “national” law schools. Some critics contend this homogeneity in law school faculties has resulted in an ethos of perceived intellectual superiority and classism and has made full-time professors, at least those with tenure, jealous of their privileged positions. Other critics contend that many law professors are so absorbed in their scholarly pursuits that they are largely unconcerned with students’ needs – academic or otherwise. …

Could [a typical law school] professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation? Could such a professor whose expertise is securities regulation effectively represent a client or the government in an S.E.C. enforcement action? Imagine such professors being first-chair counsel in a complex civil or criminal litigation who must interview potential witnesses, take depositions and engage in electronic discovery, file and respond to summary judgment motions, conduct voir dire, present the testimony of an expert witness, cross-examine (and impeach) hostile witnesses, and make closing arguments to a jury. There are some full-time non-clinical law professors capable of competently representing clients in real cases, but they are the exception, not the rule, particularly among professors hired in recent years at highly-ranked law schools.

How can we expect law students to become competent practitioners if the core of full-time law faculties, notwithstanding their scholarly prowess, do not themselves possess even the basic skills required to practice the type of law about which they teach and write? How can we expect law students to become competent and ethical practitioners when the faculty members best suited to teach them the necessary practical skills and ethical lessons from real-world cases – clinicians, LRW [Legal Research & Writing] professors, and adjuncts – are marginalized and even openly held in disdain by some members of the “main” faculty?

If you think lawyers lifting other lawyers’ language is proof lawyering is easy, you know nothing about true creativity.

There’s always the danger that when someone suggests that genuine creativity can and is built from earlier creative works that someone else will believe the implication is that creativity is no big deal. If I feel I can cut-and-paste from other lawyers’ works then lawyering must be nothing but a cut-and-paste job, right?

It’s not as if I’ve never dealt with these matters for real, as if I’m dealing with it from an academic perspective “unsullied” by the realities of practice. A client who retained me to draft a contract for him once said to me, after we’d spent a considerable amount of time discussing the details of his deal, “It’s all boilerplate, right?”

I responded, “I don’t do boilerplate. Every deal is different, and if you know the lawyer who’s done exactly your deal before and you’re confident the contract he wrote then is just fine for you, go hire him.”

Which isn’t to say I didn’t review a lot of other contracts or that I didn’t lift language from those other contracts. I did. I took a line or two from this one, a paragraph from that, another line from another, etc. And I put those things all together with my notes, shuffled things around, revised a lot of the language I’d lifted from other sources, wrote far more language necessary to express what was necessary to express this particular deal, worked and reworked, checked and rechecked, revised and revised, and at the end I had a document that set forth the client’s deal in all its precision, breadth, and ambiguity. It wasn’t boilerplate at all. But were there lines and even, perhaps, a paragraph lifted from other contracts? Of course.

I obsess about these matters in part because there is terrible confusion about what genuine creativity (in art, music, literature, the practice of law or a myriad of other endeavors) is. The confusion arises because, I believe, there is so much money at stake in the legal and rhetorical wars over copyright. So there are a lot of people who will look at Shepard Fairey’s Obama Hope poster and the photo Fairey used as the poster image’s source, and write things like the following:

Any director, writer or actor interested in making long-term money in the entertainment industry should be calling Fairey what he is: A plagiarist.

While I recognize the attitudes underlying these views — no one else is entitled to make a buck from my work! — the blindness to the creativity involved, even acknowledging the appropriation, is astounding. I’ve gone on at length about my view on this, but no one can deny that Fairey’s poster had a profound resonance and impact during the 2008 presidential campaign, and no one can suggest that the poster would have had any similar impact if the original photo had appeared on the poster rather than Fairey’s reworking. So how can anyone possibly suggest the level of creativity in the poster wasn’t profound?

The KLF “were one of the seminal bands of the British acid house movement during the late 1980s and early 1990s.” Their relevance here is that, “despite their protestations of 1988 about not wishing to be seen as crusaders for sampling, the [KLF] continue to be associated with the cultural movement which retrospectively bundles together those literary and artistic works that make use of ‘creative plagiarism’. 1987: What the Fuck Is Going On? is considered a landmark work in the early history of sampling music in the United Kingdom.” Their #1 British hit, “Doctorin’ the Tardis” “is predominantly a mash-up of the Doctor Who theme music, Gary Glitter’s ‘Rock and Roll (Part Two)’ with sections from ‘Blockbuster!’ by Sweet and ‘Let’s Get Together Tonite’ by Steve Walsh.”

Jimmy Cauty and Bill Drummond — who were the KLF — are also very smart fellows. Among a never-ending series of creative works in a wide range of media, they wrote The Manual: How to Have a Number One the Easy Way, which I’ve heard some describe as a cynical con job but that is far more intelligent and complicated than that. On the one hand, The Manual explains

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested. They have to believe it is through this sojourn they arrive at the grail; the great and original song that the world will be unable to resist.

But Drummond and Cauty are not accusing successful musical artists of being “mere plagiarists.” They recognize that even if a song can be broken down into bits and pieces of other songs, there is real genius in great pop music:

So why don’t all songs sound the same? Why are some artists great, write dozens of classics that move you to tears, say it like it’s never been said before, make you laugh, dance, blow your mind, fall in love, take to the streets and riot? Well, it’s because although the chords, notes, harmonies, beats and words have all been used before their own soul shines through; their personality demands attention. This doesn’t just come via the great vocalist or virtuoso instrumentalist. The Techno sound of Detroit, the most totally linear programmed music ever, lacking any human musicianship in its execution reeks of sweat, sex and desire. The creators of that music just press a few buttons and out comes – a million years of pain and lust.

Lewis Hyde makes a similar point in Common as Air, the new book that was the starting point for my exploration the other day of lawyerly “plagiarism”:

“Intellectual property” is the phrase now used to denote ownership of art and ideas, but what exactly does it mean? Does it make sense, to begin with, to say that “intellect” is the source of the “properties” in question? A novel like Ulysses, the know-how for making antiviral drugs, Martin Luther King, Jr’s “Dream” speech, the poems of Rimbaud, Andy Warhol screen prints, Mississippi Delta blues, the source code for electronic voting machines: who could name the range of human powers and historical conditions that attends such creations? All that we make and do is shaped by the communities and traditions that contain us, not to mention by money, power, politics, and luck. And even should the artist or scientist think she has extracted herself from the world to stand alone in the studio, a tremendous array of faculties and mind- states may well attend her creativity.

There is intellect, of course, but also imagination, intuition, sagacity, persistence, prudence, fantasy, lust, humor, sympathy, serendipity, will, prayer, grief, courage, visual acuity, ambition, guesswork, mother wit, memory, delight, vitality, venality, kindness, generosity, fortitude, fear, awe, compassion, surrender, sincerity, humility, and the ability to integrate diametrically opposed states of mind into harmonious wholes . . . We would need quite a few new categories to fully map this territory — “dream property,” “courage property,” “grief property” — and even if we had that list, only half the problem would have been addressed.

Do you want a great lawyer? You can have one even if he cuts-and-pastes the work of other lawyers into his work. But please — don’t believe for a second that means that lawyering can be reduced to cutting-and-pasting. Lawyering requires as much creativity as any endeavor on earth — if I didn’t believe that why would I write a blog devoted to law and creativity? And creativity is infinitely more complex a matter than tracking down the bits and pieces that make up the creative work. It requires the imagination necessary to find those bits and pieces, the vision to understand how to select and fit them together to due the present job, the skill borne of years of work to write in the stuff that can’t be found anywhere else and without which those bits and pieces would be just a bunch of crude boilerplate that doesn’t fit well into any specific situation at all, the passion and energy necessary to do the work to bring all this stuff together, the courage to stick to one’s vision even as one’s adversary is insisting you’re wrong, the delight without which the strength to do all of these difficult things would be impossible to muster, the generosity of spirit that can identify a client’s problems as your own, and a million other things.

So don’t you dare suggest that taking some language that is useful for doing the job that needs to be done from another lawyer is evidence lawyering is like putting together tinker toys.

Manny Garcia gives up his claim that he, not the Associated Press, owns the copyright in the photo he shot and that Shepard Fairey used as the source of the image in the Obama Hope poster.

Manny Garcia has dropped all the claims in the lawsuit over whether Shepard Fairey’s Obama Hope poster infringed the copyright in the photo Garcia had taken and that Fairey had used as the source of the image. The Stipulation of Discontinuance with Prejudice filed in the case is embedded below.

What this means is that Garcia has given up his claim that he rather than the Associated Press owns the copyright in the photo. The Associated Press claims that it owns the copyright in the photo on the grounds that Garcia shot it as a “work for hire.” The fact that the claims by Garcia and against him have been discontinued by agreement of the parties “with prejudice” means that Garcia has given up any right to re-assert those claims in the future. The agreement constitutes a final, binding determination that the copyright in the photo belongs to the Associated Press.

It does nothing, however, to illuminate the outcome of the claim by the Associated Press that Fairey’s poster infringes the copyright in the photo. But it does illuminate those familiar with the history of copyright know — the enlargement and enforcement of copyright has always been more about protecting the interests of publishers than it has been of promoting artistic creation:

There is one group of people not shocked by the record industry’s policy of suing randomly chosen file sharers: historians of copyright. They already know what everyone else is slowly finding out: that copyright was never primarily about paying artists for their work, and that far from being designed to support creators, copyright was designed by and for distributors — that is, publishers . . .

Words and Ideas as Common Property: Lewis Hyde, Stanley Fish and lawyers as “plagiarists”

In yesterday’s New York Times, Robert Darnton reviewed Lewis Hyde’s newly published Common as Air: Revolution, Art, and Ownership, describing it as “an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.” As Darnton explains, “Hyde invokes the [founding fathers] in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the arts, literature, and the entire world of knowledge — in order to exploit monopolies.” Acknowledging that Hyde’s historical approach might seem a “dubious” way of “defending the cultural commons” and that in other hands it could amount to nothing more than picking and choosing among “a stockpile of quotable chunks of wisdom,” Darnton finds the book compelling:

[Hyde] does not merely cull the works of the founding fathers for quotations. He pitches his argument at a level where historians and political philosophers have contributed most to our understanding of intellectual history. Instead of treating the ideas of the founders as self-contained units of meaning, he explores their interconnections and shows how they shared a common conceptual frame. Not that he pretends to have uncovered anything unknown to the authorities he cites, notably the historian J. G. A. Pocock, whose studies of civic republicanism reveal how early modern philosophers drew on a current of thought about the nature of citizenship that goes back to ancient Greece and Rome. Hyde builds his argument by telling stories, and he tells them well. His book brims with vignettes, which may be familiar but complement one other in ways that produce original insights.

It is one of the genuine highlights of my professional career that Hyde draws on an article I’ve written. Hyde’s scope is wide, and he explores in depth the practices of many different “communities” — including, among others, the world of scientific research and the programmers that collectively created the World Wide Web — to show that treating knowledge and invention as a commons is both widespread and productive. One such community is the legal profession, which might seem odd in that the widely held understanding that your intellectual product is as much your property as is your house is such a legalistic conception:

Many . . . communities of practice have common holdings made durable and lively through normative rather than legal stints.

One of these may be found, oddly enough, in the legal community itself, where, as in some scientific circles, collective tasks get done and “collective beings” come to life through the agreed-upon non-ownership of creative labors. The fact is that in legal circles when judges issue opinions they often “plagiarize” from the briefs presented by contending parties. To take but one example, in 1937 Supreme Court Justice Benjamin Cardozo lifted, without attribution, verbatim sections of the Roosevelt administration’s brief in his decision upholding the Social Security system. Of course, “plagiarism” is the wrong term here, for legal writing does not come from the kind of author to whom credit is due. Legal writing is mostly collaborative, for one thing, produced by writing communities. In addition, legal opinions are public documents, belonging to no one because they belong to all of us. Nobody has ever successfully claimed copyright infringement for the unauthorized use of someone else’s legal argument. In fact, legal writers want to have their work appropriated. Peter Friedman, a lawyer whose analysis I’m drawing on here, has written: “I knew I had written the best brief I possibly could on a motion when the court’s opinion announcing its decision was directly cut-and-pasted from my brief.”

If lawyers were the kind of authors who claimed a property in their work, they would potentially deprive both the work and themselves of their public roles. As with eighteenth-century pamphleteers, or with the creators of the World Wide Web, self-erasure attends a lawyer’s entry into the public sphere, not self-assertion. The law is collective; it belongs to all citizens, and consequently we ask that its practitioners present themselves as public persons with copyduties rather than copyrights. In this context, to sample someone else’s brief is a favor, not a theft; it helps a lawyer be a lawyer. Common ownership makes that species of public life possible. (Common as Air at 248-249.)

Interestingly enough, this passage has some bearing on an exchange I had recently with the incredibly accomplished lawyer and blogger Scott Greenfield. Greenfield wrote a blog post criticizing a piece Stanley Fish wrote in the New York Times that argued that plagiarism as an offense is not a moral wrong, but, rather, the product of particular rules against the use in particular contexts of others’ words and ideas without attribution. [Fish wrote a second piece on the topic, responding to critics of the first piece, here.] The necessary corollary of Fish’s point is that in other contexts the use of others’ words and ideas without attribution is perfectly acceptable. Greenfield’s disagreement with Fish focused on Fish’s assertion that “lawyers and judges in fact do [appropriate words and ideas without attribution] all the time without the benefit or hindrance of any metaphysical rap.” Greenfield wrote, “No, Stanley, I will not turn the other cheek, no matter how much I love the platitude about reinventing the wheel.”

I tried to explain in the comments to Greenfield’s post where I thought he had missed Fish’s point (which is very much related to Hyde’s). I will try to do so more clearly here inasmuch as he and I seemed to speak past one another in that particular exchange.

In law school, plagiarism is the use of the words or ideas of others without attribution. It is a grave offense that can lead to harsh discipline and even might threaten the student’s ability to someday be certified to practice law. Strict compliance with the need to attribute words and ideas drawn from others is deemed necessary because the point of the academic process is to teach the students to put together and convey ideas clearly and to assess their capacity to do so. Thus, using words or ideas of others without attribution is tantamount to fraud — the reader of those words and the ideas they convey is misled into believing they are the product of the student’s intellectual processes alone, and the reader conducts an activity central to the academic process — grading those words — in reliance on that belief. If I were to read Scott Greenfield’s words under the mistaken belief they were the words of a student whose paper I was grading, I would give him a much better grade than he would earn if I knew he were just quoting Greenfield.

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief’s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn’t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers’ briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

And of course it’s no sin. That’s the point. Which Greenfield acknowledges without realizing it’s the point when he writes that a judge who appropriates the words from a lawyer’s brief is accepting a “gift,” not engaging in plagiarism:

As for judges taking language out of my brief, that’s not plagiarizing, but the purpose of a legal brief, to provide the court with the language to use in his decision. That’s exactly what I’ve written it for, as my “gift” to the judge to use in deciding the case. Again, entirely different from plagiarizing.

But that precisely is Fish’s point. Appropriation without attribution isn’t the moral equivalent of the theft of private property. It’s wrong in some contexts and not in others. So in some contexts it is defined as plagiarism and in others to call it “plagiarism” is to misspeak.

Greenfield’s other retort to Fish also reflects his misunderstanding of the point. Greenfield states that lawyers do provide attribution to the words and ideas for others. That’s what the whole obsession with citation is about:

[W]e do not lift language without attribution. Indeed, that’s what all those silly case names and the “358 U.S. 973″ stuff is all about. It’s the lawyers’ way of attributing, Stanley. It’s called a citation, and it’s our regime. What you do not see at the end of a court decision is the copyright and command that it not be used without permission. Use of court decisions is not merely anticipated, but required in most circumstances. That’s the peculiar way law works.

But the attribution provided by citation in legal briefs and opinions does not serve the same purpose as does attribution to a student’s sources. Lawyer’s don’t provide citations to the authorities they quote and rely on because their failure to do so would result in prosecution for a moral offense. Instead, lawyers provide citations because the citations signal the identity of sources for words, actions, and ideas that have persuasive weight because of who those sources are.

In other words, if I lifted language verbatim from a court decision without quotation marks or citation in a brief I wrote to a court I would suffer no harm. You might object that this possibility is a mere hypothetical, but you would be wrong. If an argument — and even precise words — come from a court that has no controlling weight in the court to whom I am submitting the brief and I have no reason to believe the identity of the court would lend any genuine persuasive weight to the argument, I would be remiss if I did provide the citation. The citation itself would raise a question in the mind of the judge to whom I was submitting the brief — why should I care about this court’s words, ideas, or actions? — that would distract from the persuasive effect of the argument itself.

And, indeed, as a general matter as a lawyer there is little reason to cite to law review articles unless there is reason to believe the author of the article is someone who carries genuine persuasive weight. A judge’s reaction otherwise is likely to be along the lines of this: “A law review article can pretty much assert anything that can win the approval of a student editor. Why should I assume it has any authority merely because it’s published in a law review?”

Would the article’s author have any claim against a lawyer who lifted words or ideas from his article and used them in a brief without attribution? I cannot believe so, nor am I aware of any standard or rule the lawyer would be violating.

And in contract and instrument drafting, of course, lawyers don’t even provide citation for the sources of their words.

I think it is important in understanding what Fish was writing about to understand these different functions of citation. On the one hand, there’s citation to validate the relationship between the words and ideas and the author’s identity. On the other, there’s citation to signal that particular words and ideas come from a source that must be reckoned with by the reader. They are two entirely different functions, and in legal practice the latter is the one that matters. The former does not. And so you have never seen a lawyer suffer any adverse consequences for plagiarizing.

But if any of my legal writing students are reading this, be on guard! Students must provide attribution to the words and ideas they appropriate from others.

Special Friday Night Mashup: Negativland’s “U2,” a lesson in copyright (not least because it’s available online now)

The facts” re U2 v. Negativland:

August 20, 1991: SST Records releases a CD single by Negativland called “U2″, a tape-collage parody of U2′s “I Still Haven’t Found What I’m Looking For” featuring sampled and scrambled portions of the U2 song itself and a found tape of radio personality Casey Kasem losing his cool. As part of the joke, the CD packaging features the title–the letter “U” and the numeral “2″–largely and prominently with the attribution “Negativland” in much smaller letters below it.

October 5, 1991: two weeks later, a federal judge issues a temporary restraining order at the behest of Island Records and Warner-Chappell Music. “Preferring retreat to total annihilation,” Negativland and SST immediately capitulate to every demand. These demands are:

Everyone who received a copy of the record–reviewers, record stores, radio stations, etc.–must be notified to return it. If they fail to comply, they may be subject to penalties “which may include imprisonment and fines”. Once returned, the records will be forwarded to Island for destruction.

All of SST’s on-hand stock of the record–in vinyl, cassette, and CD–is to be delivered to Island, where it will be destroyed.

All mechanical parts used to prepare and manufacture the record are to be delivered to Island, presumably also for destruction. This includes “all tapes, stampers, molds, lacquers and other parts used in the manufacturing” and “all artwork, labels, packaging, promotional, marketing, and advertising or similar material.”

Negativland’s copyrights in the recordings themselves are assigned to Island and Warner-Chappell. Negativland no longer own what they have created.

Negativland and SST must pay $25,000 and half the wholesale proceeds from the copies of the record that were sold and not returned. Estimated cost to Negativland is $70,000–more than they have made in their 14 years of existence.

From Wikipedia, more of interest on the entire incident:

In June, 1992, R. U. Sirius, publisher of the magazine Mondo 2000 came up with an interesting idea. Publicists from U2 had contacted him regarding the possibility of interviewing Dave Evans (aka “The Edge”) hoping to promote U2′s impending multi-million dollar Zoo TV Tour, which featured found sounds and live sampling from mass media outlets (things for which Negativland had been known for some time). Sirius, unbeknownst to Edge, decided to have his friends Joyce and Hosler of Negativland conduct the interview. Joyce and Hosler, fresh from Island’s lawsuit, peppered the Edge with questions regarding his ideas about the use of sampling in their new tour, and the legality of using copyrighted material without permission. Midway through the interview, Joyce and Hosler revealed their identities as members of Negativland. An embarrassed Edge reported that U2 were bothered by the sledgehammer legal approach Island Records took in their lawsuit, and furthermore that much of the legal wrangling took place without U2′s knowledge: “by the time we [U2] realized what was going on it was kinda too late, and we actually did approach the record company on your [Negativland's] behalf and said, ‘Look, c’mon, this is just, this is very heavy…’” Island Records reported to Negativland that U2 never authorized samples of their material; Evans response was, “that’s complete bollocks, there’s like, there’s at least six records out there that are direct samples from our stuff.”

The “U2″ single (along with other related material) was re-released in 2001 on a “bootleg” album entitled These Guys Are from England and Who Gives a Shit, released on “Seelard Records” (a parody of Negativland’s record label Seeland Records). It is thought likely that Negativland themselves were responsible for the re-release, and that U2 gave their blessing; although the Negativland website refers to this release as a bootleg, it is available from major retailers like Best Buy, Amazon, and Tower Records, as well as Negativland’s own mail-order business.

Negativland are interested in intellectual property rights, and argue that their use of U2′s and others’ material falls under the fair use clause. In 1995, they released a book, with accompanying CD, called Fair Use: The Story of the Letter U and the Numeral 2, about the whole U2 incident (from Island Records first suing Negativland for the release to Negativland gaining back control of their work four years later). The book ends with a large appendix of essays about fair use and copyright by Negativland and others, telling the story with newspaper clippings, court papers, faxes, press releases and other documents arranged in chronological order. An unfortunate side effect of the Negativland-Island lawsuit was another one brought on between Negativland and SST, which served to sever all remaining ties the two had. To get back at Negativland (while wryly circumventing their name), Ginn later released the Negativ(e)land: Live on Tour album on SST.

Here is Negativland’s interview with The Edge.

Blanch v. Koons, transformative appropriation art, and Fairey v. AP

It’s well worth revisiting the decision by the United States Court of Appeals for the 2d Circuit (the Circuit in which the court hearing Shepard Fairey’s lawsuit against AP and Manny Garcia is pending) in Blanch v. Koons, 467 F.3d 244 (2006). Andrea Blanch, “an accomplished professional fashion and portrait photographer,” unsuccessfully sued Jeff Koons for copyright infringement of a photograph she had shot entitled “‘Silk Sandals by Gucci’ (‘Silk Sandals’), [which] depicts a woman’s lower legs and feet, adorned with bronze nail polish and glittery Gucci sandals, resting on a man’s lap in what appears to be a first-class airplane cabin. The legs and feet are shot at close range and dominate the photograph. Allure published ‘Silk Sandals’as part of a six-page feature on metallic cosmetics entitled ‘Gilt Trip.’” The court explained how Koons appropriated and used ‘Silk Sandals’ as follows:

Koons scanned the image of “Silk Sandals” into his computer and incorporated a version of the scanned image into [his painting entitled] “Niagara.” He included in the painting [pictured at left] only the legs and feet from the photograph, discarding the background of the airplane cabin and the man’s lap on which the legs rest. Koons inverted the orientation of the legs so that they dangle vertically downward above the other elements of “Niagara” rather than slant upward at a 45-degree angle as they appear in the photograph. He added a heel to one of the feet and modified the photograph’s coloring. The legs from “Silk Sandals” are second from the left among the four pairs of legs that form the focal images of “Niagara.” Koons did not seek permission from Blanch or anyone else before using the image

Koons was paid $126,877 for “Niagra.” Allure had paid Blanch $750 for “Silk Sandals.” In addressing whether Koons’ appropriation of “Silk Sandals” was fair use or a copyright infringement, the court highlighted the fact that answering this question requires balancing the conflicting interests in protecting the “intellectual property” rights of creators and protecting the freedom of expression, including referencing the works of others in new works of creation:

Copyright law thus must address the inevitable tension between the property rights it establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them — or ourselves by reference to the works of others, which must be protected up to a point. The fair-use doctrine mediates between the two sets of interests, determining where each set of interests ceases to control.

At the heart of the fair use analysis is the nature of the allegedly infringing work. As the 2d Circuit notes, it considers with respect to this factor whether the work is “transformative” — that is, whether it adds something new to the original work so that it stands on its own as an original work of creation. The court thus quoted the Supreme Court’s decision in Campbell v. Acuff Rose Music, 510 U.S. 569 (1994):

The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message …, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such transformative works thus lie at the heart of the fair use doctrine’s guarantee of breathing space …. Campbell, 510 U.S. at 579, 114 S.Ct. 1164(citations omitted).

The court’s conclusion that “Niagra” is genuinely transformative in its use of “Silk Stockings” is worth quoting almost in its entirety (citations omitted) because it is the very heart of the decision to find in favor of Koons:

Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. Compare Koons Aff. at ¶ 4 (“I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.”) with Blanch Dep. at 112-113 (“I wanted to show some sort of erotic sense[;] … to get … more of a sexuality to the photographs.”). The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. 

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “`in the creation of new information, new aesthetics, new insights and understandings.’” When, as here, the copyrighted work is used as “raw material,” in the furtherance of distinct creative or communicative objectives, the use is transformative. 

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

The court also noted that in Campbell the Supreme Court had rejected the notion that a”the commercial nature of [a] use could by itself be a dispositive consideration. The Campbell opinion observes that ‘nearly all of the illustrative uses listed in the preamble paragraph of § 107 [setting forth the fair use test], including news reporting, comment, criticism, teaching, scholarship, and research … “are generally conducted for profit.”‘” Thus, the “‘more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.’” (Quoting NXIVM Corp. v. Ross Inst., 364 F.3d 471 (2d Cir.2004)). Moreover, since “Niagra” is “‘substantially transformative, the significance of other factors, [including] commercialism, are of [less significance],’ [w]e therefore ‘discount[] the secondary commercial nature of the use.’” (citations omitted.)

I by no means would suggest that Blanch is so obviously on point in all respects that it requires the court hearing the Fairey v. AP case to find in favor of Fairey. But it certainly is quite meaningful in that respect. If only because of the tremendous resonance the Obama Hope poster had in the course of the 2008 presidential, a resonance that would have been inconceivable had the poster substituted Garcia’s photo for Fairey’s reworking of that source material, it seems at the very least quite arguable that Fairey’s reworking of the photo meets the 2d Circuit’s test of a transformative work — one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

Blanch also makes clear that it is of no moment that, Dan Heller’s assertions notwithstanding, Fairey’s work (1) was intended to convey a message, (2) was intended to “make a buck.”

It also makes plain that Heller is just plain misunderstanding the law when he states that “you cannot misappropriate someone’s likeness or their property without their consent.” (Emphasis in Heller’s original.) Koons neither sought nor received Blanch’s consent to use her photograph. Koons plainly made more than a buck in the transaction. And the fact that Koons’ message might have been a commentary on the world of “mass communication” does not seem any more worthy of fair use analysis even if we do assume, as does Heller, that Fairey’s poster was “merely” a piece of political advocacy. Finally, there is no applicable “right of publicity” that Fairey violated in appropriating Obama’s image (nor does the Associated Press or its photographer, Manny Garcia, have any right to assert any right of publicity Obama hypothetically could enjoy on his behalf).

ADDENDUM: J O’Shea on Shepard Fairey and the Art of Appropriation.

Andy Warhol was sued, but the cases were never decided.

After posting Campbell Soup’s letter to Andy Warhol expressing admiration for his Campbell Soup paintings 2 weeks ago, I’ve been asked by several people whether Warhol was ever sued for his appropriations of copyrighted photographs. He was indeed, though all of the cases settled out of court with Warhol “paying” by giving the plaintiffs pieces he had created. They therefore provide no guidance how courts would rule on those claims. Here’s the account from Patricia Search’s article, Electronic Art and the Law: Intellectual Property Rights in Cyberspace, Leonardo, Vol. 32, No. 3, 191, 193 (June 1999):

“Andy Warhol received legal complaints from photogra-phers Charles Moore, Fred Ward, and PatriciaCaulfield. Warhol used three of Charles Moore’s photographs of the Birmingham race riots in a 1964 painting called Race Riot. He also used a Life magazine cover photo of Jacqueline Kennedy Onassis, taken by Fred Ward after President Kennedy’s assassination, in several prints and paintings. Patricia Caulfield sued Warhol when she discovered that he had used one of her photographs in his1964 series of paintings and prints called Flowers.

“All of these cases were settled out of court. The photographers and their agents or attorneys received works of art from . . . Warhol . . . . Caulfield received a promise of royalties on future uses of her image by Warhol. Unfortunately, because these cases were settled out of court,no legal precedents were set concerning artistic appropriation of copyrighted material.”

Saturday Night Music: Glenn Gould — Goldberg Variations ## 29 & 30 (a “quodlibet,” look it up)

Friday Night Mashup: Evolution Control Committee — Rocked by Rape

Why Shepard Fairey’s deceit should not stop the court from finding that the Obama Hope poster did not infringe the copyright in the photo it was based on.

There has been a lot of discussion (here, for example) about whether Shepard Fairey’s deceit in the course of discovery in his lawsuit with the Associated Press and photographer Manny Garcia constitutes “bad faith” that will tilt the fair use analysis against him and compel the court to rule that his Obama Hope poster an infringement of the copyright in the photo that Garcia shot.

I don’t think so, and the discussion of the issue of an infringer’s bad faith in NXVIM Corp. v. The Ross Institute, 364 F.3d 471 (2d Cir. 2004) helps illuminate why. The Second Circuit Court of Appeals (whose decisions are binding on the court deciding Fairey v. AP) in NXVIM affirmed the lower court’s denial of a preliminary injunction on the grounds that NXVIM, the producer of a “business training seminar,” had been unable to show it would likely prevail on its claim that the defendants had infringed NXVIM’s copyright in a training manual for one of their online courses. The defendants had posted to the internet quotations from the manual in support of their analyses and criticisms of NXVIM’s activities. NXVIM argued to the Second Circuit that the lower court had inadequately considered the defendants’ “bad faith” in obtaining the manual from a former participant in the seminar rather than by purchasing it, as anyone could do.

The majority did in fact state that “it was error for the district court not to have fully and explicitly considered” the defendant’s bad faith, which presumably included inducing the former course participant to breach a confidentiality agreement by disclosing the course materials to them. The court did not reverse the district court’s decision, however, because the bad faith did not alter the conclusions that the use was a non-infringing one. In short, according to the majority, a defendant’s bad faith is not “dispositive” on the fair use question and consideration of all of the factors — and in particular the first, the “purpose and character” of the defendants’ use of the copyrighted material — was so great: “the first factor still favors defendants in light of the transformative nature of the secondary use.”

It is difficult to get a handle on how much weight, if any, the majority would therefore give to bad faith in the fair use analysis. It would have some weight, the majority seems to indicate, but not that much. Judge Dennis Jacobs‘ concurring decision is even more illuminating, however, and gives good reason to believe that the true weight to be given bad faith as a factor independent of the rest of the fair use analysis should be zero. After reviewing the rather recent history of the role of a defendant’s bad faith in fair use analysis, Judge Jacobs states rather bluntly:

I think that the secondary user’s good or bad faith in gaining access to the original copyrighted material ought to have no bearing on the availability of a fair use defense. Fair use defines the outer boundary of copyright protection, and that perimeter should be drawn by reference to the central objectives of copyright. Copyright itself would be distorted if its contours were made to depend on the morality and good behavior of secondary users.

To support his reasoning, Judge Jacobs pointed out first that the use of bad faith in fair use analysis had its origins in the Supreme Court’s 1985 decision in Harper & Row v. Nation Enterprises, in which the Court held that the Nation magazine had infringed Harper & Row’s copyright in the memoirs of former President Gerald Ford when it published a chapter from the memoir in the magazine in advance of the publication of the memoir. As Judge Jacobs makes clear in NXVIM, the fact the Nation obtained the manuscript illicitly tipped what was generally considered a close case in favor of the publisher.

One might question in retrospect precisely how close a case Harper & Row really was. The chapter the Nation published was the chapter Ford wrote about his pardon of the disgraced Richard Nixon. It seems quite likely that many people who would have purchased the book for that chapter alone (it was clearly the most noteworthy event of Ford’s political career) would have purchased the magazine and therefore not bothered with the book. In other words, the infringement very directly robbed the copyright holder of a significant amount of value that the copyright holder had every reasonable expectation it would derive from the sale of the book.

But Judge Jacobs points out too that in its post-Harper & Row decision in Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994), the Supreme Court backed off the suggestion that bad faith was part of the fair use analysis, stating that the core of the fair use analysis must remain on (1) the transformative purpose of the appropriating work and (2) whether the appropriating market “usurps a market” that belongs to the copyright holder:

Campbell’s footnoted discussion questioning the pertinence of good faith reinforces the entire thrust of the decision, which requires that fair use be assessed primarily in light of whether the secondary work quotes the original with a transformative purpose and whether it usurps a market that properly belongs to the original author — issues as to which the defendant’s good faith in accessing the plaintiff’s original work does not matter.

In other words, according to Judge Dennis, “the fair use defense exists to encourage the creation of original works that do not ‘supersede the objects’ — and thus the market value — of the original. Nor is fair use a doctrine a privilege we confer on people we like. It is not ‘earned by good works and clean morals; it is a right — codified in § 107 and recognized since shortly after the Statute of Anne — that is ‘necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of science and the useful arts….”‘ Campbell, 510 U.S. at 575, 114 S.Ct. 1164 (quoting U.S. Const., art. I, § 8, cl. 8).”

Thus, while someone’s bad acts may subject him to criminal or civil prosecution on a number of grounds, they should not bear on the fair use analysis:

A person who acquires the original work by crooked or unsavory means may expose himself to all sorts of civil claims and criminal charges; but the question of fair use itself should be decided on the basis of the transformative character and commercial effects of the secondary use. If the use satisfies the criteria of § 107 [of the Copyright Act], it is fair because it advances the utilitarian goals of copyright.

Shepard Fairey’s deceit in the course of discovery in the lawsuit has been uncovered, and it can be punished through civil sanctions or even criminal prosecution. But it should not affect the court’s determination of the artistic legitimacy of the Obama Hope poster. “[C]opyright is not about virtue; it is about the encouragement of creative output, including the output of transformative quotation. Its goals are not advanced if bad faith can defeat a fair use defense.” Nor is “good faith” a factor in fair use determinations. Willing as you may be to pay a license fee, if the copyright holder refuses to sell you a license and your subsequent unauthorized use is infringing, your willingness to pay is of no credit to you in the fair use analysis.

In short, as Judge Dennis so cogently puts it, fair use is central to the copyright regime; it is not a tolerated exception to the copyright holder’s domain:

Fair use is not a permitted infringement; it lies wholly outside the domain protected by the author’s copyright.

Hot Tuna: Uncle Sam Blues

A few more (last?) thoughts on Donald Rosenberg v. Plain Dealer and Cleveland Orchestra

Tim Smith, with whom I participated in a twitter chat 2 nights ago, expressed there and on his blog yesterday, the kind of thinking about the conflict between Donald Rosenberg, the Plain Dealer, and the Cleveland Orchestra that represents a problem and dispute resolving attitude that, I think, the best lawyers embody. There’s no question Rosenberg was no fan of Franz Welser-Möst, the Orchestra’s conductor. There’s no question his views on Welser-Möst were shared by many (though by no means all). There’s no question the repeated expression of those views irritated the Orchestra. So, what should have happened? Perhaps the Plain Dealer could have split up the reviews of the Orchestra between Rosenberg and another reviewer. Perhaps they could have published “dueling” reviews.

In short, there were things the Plain Dealer could have done to address the problems they perceived short of the ham-handed way they did handle it. Indeed, it may have been a better idea to have reassigned Rosenberg years earlier, at the point the Orchestra replaced Christoph von Dohnányi, whom Rosenberg was a fan and friend of, with Welser-Möst.

Let that be a lesson. Anticipate and address problems, and address them creatively, not in blunt fashion that exploits nothing more than your clients power.

That’s not to say, as should be clear from all I’ve written on this affair, that I think Rosenberg did a wise thing in suing in response to the Plain Dealer’s ham-handed way of dealing with the problem. As I’ve said from the beginning, it was very unlikely that Rosenberg would prevail on any claim in his lawsuit. Nor was it a situation the defendants were likely to settle in order to resolve what little legal uncertainty did exist for them. The Plain Dealer and Cleveland Orchestra’s biggest problem resulting from the lawsuit wasn’t any potential damages they might have to pay, no matter how unlikely — rather, the biggest problem was the hit Rosenberg’s claims had on their reputations. His claims resonated in the larger world. At times he seemed almost like a martyr to the cause of critical integrity. And, indeed, the problems caused by our corporate media’s corruption by the subjects they cover is a huge one (though I happen to think Rosenberg’s situation is a rather minor instance of it, if it even is an instance of it).

If the Plain Dealer and the Orchestra had settled the lawsuit, the perception would have been that they had conceded on the issue of undue influence by the Orchestra over the newspaper. Since the perception of that influence was their biggest problem vis-a-vis Rosenberg, they could ill afford to settle. Settlement was even less attractive since their legal position was so strong. So this lawsuit was not going to settle. And in all likelihood — a very strong likelihood that I would never deem a certainty only because law doesn’t permit certainty any more than does, say, medicine — Rosenberg was going to lose (as I’ve said from the very beginning).

And what did Rosenberg have to gain by suing and losing? I don’t think he gained anything. If anything, having had a jury declare his claims without merit, he seems less compelling a figure than he did before the trial. There’s the virtual certainty the lawsuit cost him quite a bit of money. And lawsuits are not fun for litigants.

Some suggest that the mere fact of discovery in the lawsuit made it a worthwhile endeavor. But what did we learn as a result of the evidence compelled by the lawsuit? That the Orchestra didn’t like Rosenberg’s repeated negativity, and that the Orchestra wasn’t alone.  That the Orchestra expressed these views to the Plain Dealer. Unlike Tim Smith, I see nothing noteworthy in Anne Midgette’s belief that the trial disclosed something new about the Orchestra’s role in Rosenberg’s reassignment. One would have to be particularly naive to believe that the Orchestra would not express its disagreement to the Plain Dealer with Rosenberg’s repeated negative views regarding Welser-Möst. Finally, we also learned, as we would have known with a second’s thought before the lawsuit, that the Plain Dealer’s editors know less about music than Rosenberg.

We knew all these things already. So the lawsuit did nothing but hurt Rosenberg, cost the defendants and taxpayers money, and generate a lot of material for a few writers.

One final word: I do not mean to say Donald Rosenberg had no right to file the lawsuit. He had every right, and assuming he knew that he was very likely to lose, I would even have been happy to represent him. I would have been clear to him, however, that I did not see the benefit he was deriving from it. There’s no question I would have derived a lot of benefit from it. He would have paid me, and it would have been a fun and interesting lawsuit to be part of.

Tweet chat at 9pm tonight on Donald Rosenberg v. PD and Cleveland Orchestra

Janice Harayda has arranged and agreed to moderate a twitter chat on the Donald Rosenberg lawsuit against the Plain Dealer and the Cleveland Orchestra tonight at 9 p.m. EDT. I will be fortunate enough to be participating with Tim Smith, the classical music critic for the Baltimore Sun. The hashtag for the chat will be #DonR.

Addendum: Rosenberg’s claims against the Plain Dealer are grounded in an article he wrote for the newspaper on August 25, 2004, an article which, he claimed, provoked a concerted campaign on behalf of the Cleveland Orchestra to have the Plain Dealer assign someone else to review their concerts. Four years later, in 2008, the Plain Dealer reassigned him. For informational purposes, the relevant portions of the 2004 article are set forth below:

Welser-Möst speaks out

Some of Welser-Möst’s comments in current Swiss magazines have raised eyebrows.

In Weltwoche, under the headline, “Many Rich Widows,” he discusses private funding for culture in the United States, deeming it necessary to find “rich widows” and that “charm certainly is no disadvantage when you want the ladies to understand you well.”

Welser-Möst refers to the Friday-matinee audiences in Cleveland that are filled with “ ‘Blue Hair Ladies’ because of the coloring of their hair” and states that these “so-called ‘Blue Hair Audiences’ ” largely comprise retirees who are too tired to attend performances at night.

Asked what the ladies must donate to meet Welser-Möst personally, he answers: “For $500, you don’t get a handshake from the music director.”

And for $5,000? “No, it has to be a little more than that. A few years ago, an enthusiastic middle-age fan, in this case a man, moved a check across the table for $10 million. With such a person, of course, you go to dinner.”

How do you like Cleveland? “Cleveland is an island. Here we have a world-class orchestra in what I call an inflated farmer’s village. For me, who loves the country, it is wonderful to live there among the green. Recently in the street in front of my home, I found a huge turtle. It had not escaped from the zoo. It was just walking in the street.”

Why I didn’t like Donald Rosenberg’s lawsuit against the Plain Dealer and Cleveland Orchestra.

I want to expand a bit on why I don’t believe a lawsuit of the sort Donald Rosenberg brought is a useful way of enforcing journalistic integrity. My opinion, of course, is grounded in the belief I’ve had since I first heard of the lawsuit that there was little if any legal merit in it.

First, our legal system is intended to remedy individual harm. It does so by limiting the power of courts to decide individual cases brought be people with a genuine stake in the controversies they sue over. Courts do not have the power to decide hypothetical questions. They do not have the power to decide concrete questions if they parties who sue aren’t the parties who have actually suffered direct harm resulting from the alleged wrong. And our legal system is overwhelmed. People wait years for justice in cases where the harm is serious and direct. To allow lawsuits to proceed merely because they involve behavior we don’t like, therefore, is to do plenty of harm.

Some have suggested that, regardless of the merits of Rosenberg’s lawsuit, the discovery forced by the litigation serves a useful function in disclosing information about behavior they didn’t like. Discovery is a powerful mechanism for forcing people to disclose information. And so it is a dangerous game. When you seek discovery, discovery is sought from you as well, and it’s tough to put a limit on things. So, if you sue, be ready to open up your own life to the public. And if you are sued, don’t believe for a minute that you won’t have to open up your life.  Litigation is a dangerous game.

Paradoxically, while discovery discloses a lot, we should understand too that it doesn’t disclose everything. Parties to a lawsuit seek discovery about the matters they care about and deem it worth their while and their money to go after. They disclose to the court and the public only portions of the information they seek and obtain. So what the public actually receives is never the entire picture. It is as selected, shaped, and manipulated as is any other set of facts.

It’s plain that those rooting for Rosenberg in his lawsuit were convinced of the soundness of his critical writings regarding the Cleveland Orchestra. But I’m not exactly sure whether they want courts and juries to start engaging in the kind of aesthetic and critical evaluation that would be required to distinguish Rosenberg’s legal claims from those brought by some hack they would consider the Cleveland Orchestra to be entirely right to complain about. To do so would require the court to determine which reviews the Orchestra had a legitimate beef about and which reviews the Orchestra did not have a legitimate beef about. I can’t believe that anyone would be happy with that going on.

And the only other answer to that problem would be to forbid the Cleveland Orchestra or any other journalistic subject to opine about the quality of the coverage afforded them. Besides the obvious First Amendment problems, that alternative is plainly unworkable.

Has the Plain Dealer’s credibility been damaged? I think so, though to be honest I’m not sure that Rosenberg’s lawsuit caused that damage. Rather, the decision to reassign Rosenberg and the ensuing hue and cry from the musical and critical worlds did that. If anything, I suspect that having lost the lawsuit, Rosenberg may have revived some of the Plain Dealer’s lost reputation.

Finally, I hate the fact that Rosenberg likely paid good money for what plainly to me seemed a losing set of claims. And if, as I hope, his lawyer was representing him on a contingency basis, I’d be pretty pissed off if I were his lawyer’s partner or employee.

Addendum: I’ve been asked why, given that Rosenberg’s age discrimination arises under Title VII, which is federal law, the case was heard in state court. Federal courts do not have exclusive “jurisdiction” (that is, judicial power) over Title VII claims. State courts are courts of “general jurisdiction” and therefore can exercise judicial power over any claims, though Congress can restrict jurisdiction over federal claims to federal courts. In 1990, the Supreme Court ruled that Congress had not done so (explicitly or implicitly) in Title VII.

Jury rules against Donald Rosenberg

A jury found for the Plain Dealer and the Cleveland Orchestra’s governing body yesterday, rejecting all of reporter Donald Rosenberg’s legal claims arising out of the decision by the Plain Dealer to relieve him of his duties as the Orchestra’s reviewer and reassign him.

As anyone who has followed my speculations on this lawsuit knows, I have always been skeptical of the legal merits of Rosenberg’s claims. As the NY Times article linked to above explains, the lawsuit “became a cause célèbre among music critics, who charged that The Plain Dealer had caved in to complaints from a subject of its reviews, touching a raw nerve among those who review arts for a living.”

Nevertheless, I could not discern any contractual right Rosenberg had to the job reviewing the Orchestra, so the reassignment didn’t seem to constitute any breach of contract. The Orchestra’s representatives have every right to complain about negative reviews to the Plain Dealer’s management as long as they didn’t lie about him in expressing those complaints. And the addition of an age discrimination claim simply didn’t fit the gist of the complaint — how could it be that the Plain Dealer’s reassignment of Rosenberg under pressure from the Orchestra constituted age discrimination?

If I were Rosenberg’s lawyer, I’d advise him not to appeal. The Los Angeles Times reports, however, that he hasn’t ruled out that possibility. It’s not that I don’t care if the Plain Dealer did cave into pressure from the Orchestra (certainly not the only quarter from which complaints about Rosenberg were heard). It’s that I don’t think a lawsuit by an individual who is reassigned as a result of that kind of pressure is the means of ensuring journalistic integrity.

Friday Night Music: Rolling Stones vs. Moguai & Tocodisco – Gimme Shelter Freaks ( DJ Earworm Mash-Up )