ABSTRACT
The term ‘aesthetic nondiscrimination’ has been widely used by various copyright scholars to describe the legal concept that judges should refrain from making determinations about the aesthetic value of a work. This term, however, is incredibly misleading, because it creates several implications and assumptions that do not support the holding and facts surrounding the seminal case of Bleistein v Donaldson Lithographing Co, the goals of copyright protection, and the goals of fair use. Reconsidering the propriety of the term aesthetic nondiscrimination would prevent future distortion of the Bleistein doctrine as more human rights and social justice endeavors are suggested in improving the United States’ copyright regime. This article analyzes the various meanings of ‘discrimination’, the various areas of discrimination law, and the current American copyright regime and concludes that the aesthetic nondiscrimination doctrine is not only an improper term of art that can lead to the misinterpretation of Bleistein, impede social welfare, and hinder the continuing creation of new works.
Mark Edward Blankenship Jr, Reconsidering the ‘Aesthetic Nondiscrimination’ Doctrine in American Copyright Law (August 13, 2024).
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