Arts as Game

A couple of weeks ago I did a four-part series on the Scrabulous litigation (Part I, Part II, Part III, Part IV), which ended with musings about the relationship between games, expression, and copyright. Games, like copyrightable works, can be "played;" but despite this similarity in terminology, I argued that games are fundamentally different from other forms of expression, a fact that justifies the traditional rule that games are not copyrightable. The artistic expression in games does not encompass the actual gameplay, which crucially depends on the involvement of the player; the expression only sets the conditions for game play. Therefore, a game that "plays the same," but does not sufficiently copy the individual elements of another game (board, pieces, rules sheet), is not infringing. The art in games is in the environment, not in the game itself.

Yesterday's New York Times Book Review flips that analysis around. In a review of Michael S. Gazzaniga's Human: The Science Behind What Makes Us Unique, Daniel Levitin notes Gazzaniga's intriguing hypothesis concerning the evolutionary purpose of art:

Gazzaniga doesn’t shy away from hard problems, like why humans, alone among species, have art. The attraction to stories, plays, paintings and music — experiences with no obvious evolutionary payoff — is puzzling. “Why does the brain contain reward systems that make fictional experiences enjoyable?” he asks. Part of the answer, he argues, is that fictional thinking engages innate “play” modules that enhance evolutionary fitness (that is, the ability to propagate one’s genes) by allowing us to consider possible alternatives — hypothetical situations — so that we can form plans in advance of dangers or even just unpleasant social situations. “From having read the fictional story about the boy who cried wolf when we were children,” he writes, “we can remember what happened to him in the story and not have to learn that lesson the hard way in real life.” Art may be more than a leisure activity. Artistic, representational thinking could have been fundamental in making us the way we are. As Gazzaniga concludes, “The arts are not frosting but baking soda.”

So putting my argument and Gazziniga's together, play is not art, but art is play. What gives?

Gazziniga's hypothesis, at least as described in the review, seeks to create an evolutionary payoff for art in that it encourages advanced planning for life-threatening or at least status-threatening situations. One objection might be that that only captures a small amount of art. So, we might be better prepared to deal with large, insectoid creatures while stuck on a remote cargo vessel (lesson: never breach quarantine!), or perhaps a neighbor you suspect of murder (tip: keep a lot of flashbulbs handy), but what does Monty Python and the Holy Grail prepare us for? Or Beethoven's Fifth Symphony? Or Mondrian's Composition with Red, Yellow, and Blue?

Of course, a good response might be that, once the "play module" that allowed imagining threatening situations was created, it also allowed all sorts of other activity not directly related to evolutionary fitness, much in the same way thumbs may have originally evolved to hold tools, but now allow us to hitchhike and confirm approval.

I don't think that issue needs to be run to the ground because I don't think the two theories are inconsistent. Gazziniga's argument seems to be, not so much that art itself is play, but that it creates the environment for play -- the "play" being the thoughts that occur in the brain of someone listening to a tale, or viewing a cave drawing, and empathizing with the protagonists or imagining similar events happening to them. This sort of reaction to the work -- the internal appreciation of a copyrighted work as it is in play -- is not within the scope of copyright for the same reason game play is not. Game play is the interaction between player and game, and thus not fixed within the game's expression; neither is the imaginative response to a work being displayed or recited. It might intrude on the copyright owner's rights, of course, if that imaginative response is then set down in some sort of permanent medium somewhere, because it might then act as a vehicle for the further transmission of the original author's expression; and that opens the door to some extremely difficult questions now that recording thoughts in tangible media is so easy. But the thought itself is not within the scope of copyright -- even if a person has such a good memory that their brain is a "material object[ ] ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated" -- the definition of a "copy."