Rebecca Tushnet, Worth a Thousand Words: The Images of Copyright Law, 125 Harv. L. Rev. 683 (2012).
Abstract: Copyright starts with the written word as its model, then tries to fit everything else into the literary mode. It oscillates between two positions on nontextual creative works such as images – either they are transparent, or they are opaque. When courts treat images as transparent, they deny that interpretation is necessary, claiming both that the meaning of the image is so obvious that it admits of no serious debate and that the image is a mere representation of reality. When they treat images as opaque, they deny that interpretation is possible, pretending that images are so far from being susceptible to discussion and analysis using words that there is no point in trying. The oscillation between opacity and transparency has been the source of much bad law. This Article explores the ungovernability of images in copyright, beginning with an overview of the power of images in the law more generally. The Article then turns to persistent difficulties in assessing copyrightability and infringement for visual works. In assessing copyrightability, courts draw lines between artistic choice and mere reproduction of reality, but also treat the artist as a person with a special connection to reality who possesses a way of seeing that ordinary mortals lack. Infringement analysis repeats this doubling, using the representation/reality divide to separate protected elements of a specific work from unprotected ones while simultaneously insisting that works are indivisible gestalts. Current doctrine makes impossible and self-contradictory demands on factfinders. It should be replaced with a true “reproduction” right against exact or near-exact copying. Despite this radical proposal, much of my argument is critical and diagnostic. I therefore turn to more specific problems in authorship questions for multimedia works and fair use that highlight the instabilities in current approaches to nontextual works. Greater epistemic humility, recognizing that images make multiple meanings in multiple ways, could combat the judicial tendency to presume that images are nothing more than what they seem.