Doesn’t anyone understand that just because you can make money off of it doesn’t mean it should be property?

Our culture’s obsession with ownership and control seems to know no bounds. Ray Madoff writes in the New York Times about ownership of a person’s identity after death:

According to Hebrew University of Jerusalem . . ., when it inherited Einstein’s estate, the bequest included ownership of Einstein’s very identity, giving it exclusive legal control over who could use Einstein’s name and image, and at what cost.

Einstein is not the only example. While we might think of people like the Rev. Dr. Martin Luther King Jr., George Patton, Rosa Parks, Frank Lloyd Wright and Babe Ruth as part of our cultural heritage, available for all to use, the identities of each of them, and thousands more, are claimed as private property, usable only with permission and for a fee.

This phenomenon is fairly recent — and it’s getting out of control. For most of this country’s history, a person’s identity was not something that could be owned. . . .

Today the right of publicity clearly allows people to control the commercial use of their names and images during their lives. What happens after death is much murkier.

Throughout much of the world, the right of publicity ends at death, after which a person’s identity becomes generally available for public use. In the United States, however, this issue is governed by state laws, which have taken a remarkably varied approach. In New York, the right of publicity terminates at death; other states provide that the right of publicity survives death for limited terms. But in Tennessee (whose laws govern the use of Elvis Presley’s image, since he died there), Washington (home of a company that purports to own Jimi Hendrix’s right of publicity) and Indiana (where CMG Worldwide, which manages the identities of hundreds of dead people, is based), control over the identities of the dead has been secured for terms ranging from 100 years to, potentially, eternity.

Extending control over the identity of important people to their estates after death is, I think, to mistake how culture and art work and to elevate property rights to an importance that does us very little good. The identities of famous people as varied as Einstein, Elvis Presley, and Marilyn Monroe become part of our culture’s language. That cultural meaning then becomes part of the language of our cultural conversations, and as a part of that language it then has meaning that can be used in the sorts of compressed and symbolic ways that culture and art thrive on. To remove the identities of dead people from this language in the absence of payment for their use would substantially damage our culture. Madoff suggests congressional legislation limiting control over a person’s identity to a short term of, for example, ten years. To extend control at all past death seems to me to be problematic as a cultural and expressive matter (and Madoff raises all sorts of ways in which it is problematic as a matter of estate law). But to extend it any longer than ten years seems just plain obtuse — doing so would raise the threat that by the time an identity becomes available for use as part of the public domain it would have lost much if not all of its expressive value.

Friday Night Mashup: Girl Walk//All Day

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Girl Walk // All Day from jacob krupnick on Vimeo.

Friday Night Mashup: Kutiman — I’m New

Appropriation art: is Richard Prince’s loss its end? I don’t think so.

The decision holding Richard Prince liable for infringing Patrick Cariou’s copyright in photographs Prince appropriated (which I wrote about 3 days ago) continues to inspire commentary. Donn Zaretsky does his typically excellent work in collecting the range of intelligent commentary and adding his own. He points to what he considers the key point in the decision, the judge’s belief that Prince’s appropriation was not sufficiently “transformative” to constitute fair use of Cariou’s photographs because Prince’s work did not sufficiently comment on or otherwise refer back to Cariou’s photographs (hyperlinks in original):

[T]he key bit is that the court rejected the fair use defense because, as Artnet’s Walter Robinson puts it, “Prince’s works do not specifically comment on Cariou’s originals.” (Robinson says: “Face it, the notion of ‘appropriation’ just doesn’t play well in our law courts.”) The NYT’s Randy Kennedy writes that “Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must ‘in some way comment on, relate to the historical context of, or critically refer back to the original works’ it borrows from.”

That hasn’t always seemed to be a requirement in other fair use cases. In Blanch v. Koons, for example, the Second Circuit noted that Koons used “Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media” (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch’s image). Quoting the Supreme Court’s Campbell decision, the court said the test of transformativeness is whether the later work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

As I wrote the other day, I think the “key” element in the case is the evidence that Cariou had (and that the court apparently found credible) that he had been directly damaged by the appropriation. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Prince’s works that appropriated Cariou’s photographs. As a result, the gallery owner considering a show for Cariou’s works backed off, because “she did not want to exhibit work which had been “done already” at another gallery. Slip op. at 6-7. In other words, Prince’s work essentially was functioning as a direct market substitute for Cariou’s work.

That is a far cry from the situation in Blanch v. Koons, in which the Second Circuit Court of Appeals held that Jeff Koons’ appropriation of a photograph in a collage constituted fair use. There was no reason in Blanch to believe that Koons’ work in any way damaged any market for the appropriated photograph.

Moreover, Cariou’s case does not and cannot conceivably be interpreted to overturn Blanch, in which, as Zaretsky correctly notes, the Second Circuit approved Koons’ use of “‘Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media’ (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch’s image).”

Judge Batts’ apparent belief that in order to be sufficiently transformative to qualify as fair use an artistic appropriation must comment on or otherwise refer back to the appropriated work is certainly open to question even apart from the unquestionable continuing vitality of Blanch. The proposition that an appropriation must comment on the original to constitute fair use originates in commentary on Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,  (1994), in which the Supreme Court held that 2 Live Crew’s appropriation of Roy Orbison’s Oh, Pretty Woman was a non-infringing fair use. While the Court did stress the ways in which 2 Live Crew’s reworking of the song “parodied” Oh, Pretty Woman, I think it is worth wondering whether one’s principal reaction to 2 Live Crew’s song is that it is making fun of Orbison’s song. More importantly, Justice Souter, writing for the Court, emphasized that the less an appropriating work damages the market for the original work it appropriates, the less it needs to reflect directly back on the original to the degree to constitute a non-infringing fair use:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody’s critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work’s minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

Id. at 580, n. 14. And, indeed, this understanding fits perfectly the decision in Blanch, in which it would be absurd to suggest that Jeff Koons was parodying the specific photograph he appropriated rather than using it to comment on the worlds of commercial and fashion photography in general:

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.

Blanch v. Koons, at 467 F.3d at 252-53.

I think it is crucial to remain cognizant of the fact that the case law establishes that there can be transformative use of copyrighted work in art other than art that ridicules copyrighted work. I have gone on at great length on this blog about the ways our conventional notions of authorship are too narrow and historically ignorant. But Ray Down is downright eloquent on the ways these issues pertain to art over at his Copyright Litigation Blog in connection, specifically, with Richard Prince. His entire post, with helpful illustrations, is well worth your read. Here’s an excerpt:

Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning. The urinal of Marcel Duchamp. The Brillo Box of Andy Warhol. Both utilitarian objects made by others and fetishized by the artists.

And look at L.H.O.O.Q. – nothing original in the execution, but the Mona Lisa was in the public domain at the time. Prince is blatantly stealing. Plagiarists take the words of others and try to make you believe that they have crafted them. But Prince’s cutouts from advertising, porn and outlaw biker magazines never misled the consumer.

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it. When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech – or in some way pure idea – even if it includes major appropriations. Things change when the artwork is widely reproduced. When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value. Prince’s “appropriation” added ten million dollars worth of value to a pile of books. Everyone knew he didn’t create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers – surrounded by the top art advisers and critics -if these people feel that Prince’s value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books? In fact, Prince’s prices will probably soar – scarcity and scandal drive art prices up.

From a semiotic perspective, isn’t Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another? And if your message is mirror-like, is it less valid? And if you don’t have the verbal skills to articulate what you are doing, is that any less a mirror?

In short, I think Dowd is right, but I also think the death knell of non-parodic appropriation is being rung without reason. Finally, I think that if Cariou convinced the court that Prince’s appropriations robbed Cariou of real opportunities to sell his photographs, the outcome of Cariou’s case is obviously correct and does not threaten the kind of appropriation case people like Zaretsky, Dowd, and I talk about when we talk about appropriation by the likes of Prince, Koons, and Shepard Fairey.

Can you be original if you do nothing but appropriate the work of others?

From Wikipedia: Ophir Kutiel (born 1982), professionally known as Kutiman, is a musician, composer, producer and animator from Israel. He is best known for creating the online music video project ThruYOU, an online music video project mixed entirely from samples of YouTube videos which has received more than 10 million views. Time Magazine named it one of the 50 Best Inventions of 2009.

Here is This is What it Became, one cut from ThruYOU:

Mike Masnick of techdirt, writes yesterday, in terms that a lawyer for Gregg Gillis would love:

[T]o hear some people talk about these things, none of this is “creative.” It’s all just “copying.” In some cases it’s outright “piracy.” After all, Kutiman is using the works of others, and doing so entirely without permission. And yet, I have trouble seeing how anyone can legitimately claim that these songs are “piracy” in any real sense of the word. Kutiman is clearly a musician. That he uses a note played by someone else on a YouTube video, and then “plays” it himself, strikes me as no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar. A musician is putting different sounds together to create music. Does it really make a huge difference if that music involves someone making a note from an instrument directly themselves… or by taking the note originally played by someone else and doing something creative and amazing with it?

I think Masnick is right on in stating that the use of technology widely available only in the last several years to compose a work from pieces of other recorded work is “no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar.” What many fail to recognize is that the music the likes of Kutiman, Gillis, DJ Earworm and a myriad of others are producing today is the result of new technology, not a new mindset. There are plenty of people out there who would tell you that rampant sampling is the consequence of a generation without respect for property rights. But I think people who say such things are missing the real point: ten years ago, it would have been very difficult for people like Gillis and Kutiman to compose the work they compose today. Twenty years ago it would have been impossible without efforts few but the most dedicated would resort to.

In short, we have new instruments today. That those instruments produce their sounds by means of reproducing pre-recorded sounds does not make them any less instruments than instruments that can produce only a limited number of notes.

Substantially similar or original? Can’t it be both?

From The Millions: “’Substantially Similar? (after Koons 2010),’ [right] is composed of 36 rectangular panels, each contributed by a different artist and then assembled by the artist who conceived the piece, Alfred Steiner. The result was an instantly recognizable riff on Jeff Koons’s ‘Popeye’ series [left] – an appropriation from an appropriator who has made headlines in several highly publicized copyright cases. A note beside ‘Substantially Similar?’ left no doubt about its creator’s stance on the passionate arguments for and against copyright laws: ‘By engaging these issues, the project may also suggest how copyright antagonizes artistic freedom while providing artists no discernible benefit.’”

Steiner is a “lawyer who happens to be an artist.” Steiner described his methods in composing Substantially Similar? (after Koons 2010):

I took an electronic version of the Koons original and divided it up into 36 pieces and sent each artist just one little piece, via e-mail, so they wouldn’t recognize the whole thing. I gave them instructions on how to create an image based on the image that I’d e-mailed them. The only other instructions were a very close paraphrase of the 2nd Circuit’s test for copyright infringement – which is, “would a reasonable person regard the two works’ esthetic impact as the same?”

TM: In other words, would a layman recognize these two works as being the same thing?

AS: Right.

TM: So the contributors didn’t know what they were reproducing?

AS: Right.

TM: And the result was a piece that looked vaguely like Koons, but was different.

AS: It had the essence of the original but was clearly a new work.

In connection with Girl Talk, Steiner states what is very much my thinking — why would we want to stop something so good?

[Greg Gillis] will make songs that are totally based on samples. One song may have 200 samples, so many that there’s no way you could pay each artist. He’s very well received critically. The question is, should it be possible to make that kind of work or not? I kind of think, yes, it should be possible.

Cariou v. Prince: the damage to plaintiff is far more important than Richard Prince’s inability to articulate an artistic intent.

I discussed here nearly 2 years ago the lawsuit by photographer Patrick Cariou against Richard Prince alleging that the collages Prince had exhibited at the Gagosian Gallery in 2008 because they had appropriated photographs of Rastafarians Cariou had taken and published in his book Yes Rasta in 2001. I wrote then that the lawsuit “could have a profound impact on the art world, either clarifying that the widespread acceptance in the art world of appropriation art is legally legitimate or opening the door to an increased number of lawsuits by copyright holders against artists engaged in collage, sampling, satire, and any  number of other genres that have become increasingly easy to engage in with the digitalization of media and the rise of the internet.”

The verdict is in: the court ruled in favor of Cariou and against Prince. The decision is embedded below.

On the one hand, the decision is not as far reaching as it might have been. The court emphasized that it was declining to accept Prince’s argument that “appropriation art is per se fair use, regardless of whether or not the new artwork comments on the original works appropriated.” Slip Op. at 17-18. On the other, the court limited the scope of fair use in appropriation art to work that comments on the original works, insisting that, “to the extent that [Prince’s works] merely recast, transform, or adapt the photos, [they] are . . . infringing derivative works.” Id. at 18.

There are a several interesting aspects of the case. First, the court emphasized that Prince “testified that he has doesn’t “really have a message” he attempts to communicate when he making art,” and that “[i]n creating [his] Paintings Prince did not intend to comment on any aspects of the original works or the broader [Rastafarian] culture.”

It may be a dangerous thing to depend on the artist’s intent in judging the transformative nature of his art. As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,

The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist’s own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists’ work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.

What was Jackson Pollock’s purpose in painting Lavender Mist? Van Gogh’s in painting The Irises? Haven’t we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007) (emphasis added), the Second Circuit, in holding that Jeff Koons’ appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons’ use of the photograph was “transformative” precisely on Koons’ statements regarding what he intended:

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 P4 (“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. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant’s purpose in using copyrighted concert poster was “plainly different from the [*253] original purpose for which they were created”); see also 17 U.S.C. § 107(1) (first fair-use factor is the “purpose and character of the use” (emphasis added)).

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. Castle Rock Entm’t, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as “raw material,”Castle Rock Entm’t, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see alsoBill Graham Archives, 448 F.3d at 609 (use of concert posters “as historical artifacts” in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when “the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting” on the original). 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.’”

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.”Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated);Davis, 246 F.3d at 174 (same). 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.

In short, courts seem to be basing the transformative nature of alleged infringements on the avowed intentions of the artists themselves. Thus, in the decision enjoining the publication of a “sequel” to The Catcher in the Rye, the judge was significantly influenced by the fact the author and his representatives had described the work in words that didn’t fit the legal standard they wanted to meet:

Until the present lawsuit was filed, Defendants made no indication that 60 Years [the new work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the original jacket of 60 Years states that it is “. . . a marvelous sequel t one of our most beloved classics.” . . . Additionally, when initially confronted with the similarities between the two works, rather than explaining that60 Years was a parody or critique of Catcher, Colting’s [the new work’s author] literary agent, Mr. Sane, contended that 60 Years “is a completely freestanding novel that has nothing to do with the original Catcher in the Rye.” Opinion and Order at 16, n. 3.

Colting, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” It’s odd to think that makes a difference, though. No matter what he said, his work would be the same.

In the same way, it seems odd that Prince’s refusal to articulate an artistic intent and Koons elaborate description of his own intent are the most significant determinants of the legitimacy of their respective artworks.

Of course, there are more obvious was to distinguish Prince’s case from Koons’. Koons’ use of a fashion photograph in his collage quite plainly had no impact on any reasonably foreseeable markets for that fashion photograph. In contrast, Prince’s work quite obviously did have an impact on the commercial value of Cariou’s work. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Prince’s works that appropriated Cariou’s photographs. As a result, the gallery owner considering a show for Cariou’s works backed off, because “she did not want to exhibit work which had been “done already” at another gallery. Slip op. at 6-7.

So we need not go so far as to conclude that Cariou’s lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Prince’s appropriations damaged Cariou’s opportunities to economically benefit from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct.

Cariou v Richard Prince

Is the NY Times new paywall a platypus?

Will the new New York Times paywall survive longer than its last one? The Times sent me an e-mail explaining the plan, but Felix Salmon explains it more succinctly and clearly:

[T]he website is free, so long as you read fewer than 20 items per month, and so are the apps, so long as you confine yourself to the “Top News” section. You can also read articles for free by going in through a side door. Following links from Twitter or Facebook or Reuters.com should never be a problem, unless and until you try to navigate away from the item that was linked to.

Beyond that, $15 per four-week period gives you access to the website and also its smartphone app, while $20 gives you access to the website also its iPad app. But if you want to read the NYT on both your smartphone and your iPad, you’ll need to buy both digital subscriptions separately, and pay an eye-popping $35 every four weeks. That’s $455 a year.

I can’t say I disagree with Salmon’s take: “The message being sent here is weird: that access to the website is worth nothing. Mathematically, if A+B=$15, A+C=$20, and A+B+C=$35, then A=$0.” And I suspect Mike Masnick’s is correct in his belief this plan was spawned by a committee that either lacked or utterly ignored any member who suggested the idea was stupid:

It feels like something that was completely developed by committee group-think. It’s one of those things where they’re sitting around and someone timidly suggests a dumb idea (“I know, for $5 more we take away their smartphone access”) and, because they have to come up with something, someone else says “sure” and then they think there’s validation of a good idea. But there’s no one brave enough in the room to say: “Guys, the newspaper is digital. Charging different amounts based on the hardware is like charging people different prices for listening to the same music on headphones vs. speakers.” But no one did that. And because they had a committee, who kept making bad suggestions like this, and 14-months to keep upping the stupid, they spent over $40 million on it.

The result for me will be that I’ll read the New York Times less than I do now. Whether the newspaper will in fact be hurt by losing page views by readers like me or will make more money than it does now with its content online for free remains to be seen, but something tells me this isn’t the best solution to the world we live in now, one in which newspapers no longer control the means of producing and distributing journalism.

Stay tuned. We’ll see what the New York Times is doing online in a year or two.

If you think you’ll come up with a really original idea, you’re just kidding yourself.

In The City and the City, China Mieville writes a police procedural that takes place in “[t]win southern European cities Beszel and Ul Qoma,” which “coexist in the same physical location” but are “separated by their citizens’ determination to see only one city at a time.” When I read the novel I marveled at the originality of the premise. Of course, as Mieville himself recognizes in an interview on BLDGBLOG, there’s nothing new under the sun:

I should say, also, that with the whole idea of a divided city there are analogies in the real world, as well as precursors within fantastic fiction. C. J. Cherryh wrote a book that had a divided city like that, in some ways, as did Jack Vance. Now I didn’t know this at the time, but I’m also not getting my knickers in a twist about it. If you think what you’re trying to do is come up with a really original idea—one that absolutely no one has ever had before—you’re just kidding yourself.

You’re inevitably going to tread the ground that the greats have trodden before, and that’s fine. It simply depends on what you’re able to do with it.

That indeed is where artistic genius resides — not in the originality of the thought, but in what the artist does with the thought.

Legal writing: analytic, interactive, and nonroutine. A computer can’t do it.

One of the most difficult lessons to get across to my students is that good legal writing requires them to exercise their imaginations, that I cannot merely tell them what they are supposed to do. It’s no surprise that it’s so difficult to get this message across; even within law schools there are many who believe legal writing is nothing more than composition and citation. So I thought it was interesting that Paul Krugman wrote today on his blog about “the influential analysis of Autor, Levy, and Murnane . . . , which argued that the crucial difference in terms of possible replacement of humans by machines was one of routine versus non-routine, rather than white-collar versus blue-collar . . . .”

In the article Krugman refers to, the authors set forth a chart dividing different tasks into “analytic and interactive tasks” and “manual tasks.” They also then divide each of those categories into those that are “routine” and “nonroutine.” I was relieved, but not surprised, to find that legal writing is an analytic and interactive task that is nonroutine:

Welcome to the future of publishing.

Amanda Hocking lives in Minnesota, and writes young adult paranormal romance and urban fantasy. Her My Blood Approves series is about vampires in Minneapolis. She also wrote the Trylle Trilogy, which is a paranormal romance without vampires, shifters, mermaids, fae, angels, dragons, ghosts, or ninjas.

But what’s remarkable about Ms. Hocking is that she’s experienced enormous success by self-publishing her works exclusively as electronic texts, as the Huffington Post reports:

Unknown, living paycheck to paycheck in Austin, Minnesota, rejected by publishers all over New York, Amanda Hocking decided to self-publish on ebook platforms only. She sold 100,000 of her works in December, and over 10 months she’s had more than 900,000 in sales. She’s 26 and is now making enough money to quit her day job and become a full time writer, in fact she’s a millionaire.

Paranormal romance is not precisely to my taste, but no one interested in culture can ignore the economics of popular culture. And at least this comment from the Huffington Post article, while acknowledging the fear provoked by the ongoing revolution in publishing, acknowledges what I’ve long seen as the need to embrace the inevitable:

As a long-time author it frightens me somewhat to see the industry change so much so quickly. Yet it’s also exciting to witness this kind of people power in the making. The Internet is the great equalizer. I firmly believe that those of us in the industry need to embrace the change or we will eventually go down in flames. You can’t stop progress, only delay it.

Noy Alooshe: Zenga Zenga