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 non-textual creative works such as images – they are either transparent, or they are opaque. When courts treat images as transparent, they deny that interpretation is necessary, claiming that the meaning of an image is so obvious as to admit 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 able to be discussed and analyzed using words that there is no point in trying. This 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 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, 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, self-contradictory demands on fact-finders. 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 non-textual 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.
Tushnet, Rebecca, Worth a Thousand Words: The Images of Copyright Law (August 17, 2011). Harvard Law Review, forthcoming; Georgetown Public Law Research Paper No 11-115.