Gilden on Raw Materials and the Creative Process

Andrew Gilden (Stanford Law School) recently posted Raw Materials and the Creative Process, 104 Georgetown L.J. __ (2016), on SSRN. Here is the abstract:

There has been a marked shift in how intellectual property laws address free speech, creative expression, and artistic practices that involve extensive copying. Over the past decade, courts increasingly have shielded authors from claims of infringement if they used a preexisting image or likeness as “raw material” for a new work. Both copyright law’s fair use doctrine and right of publicity law’s First Amendment defense have coalesced around this raw material inquiry, and similar notions of cultural raw material long have pervaded IP scholarship.

This Article is the first to challenge the emerging “raw material” framework, and it uncovers a range of normative and conceptual shortcomings. First, the growing body of raw material case law has unequally expanded artists’ ability to freely copy from the world around them: famous artists have been shielded, but lesser-known artists have not. Second, in distinguishing between a creative work and its raw materials — between “raw” and “cooked” imagery — courts have drawn from a range of analogous social hierarchies. For instance, courts repeatedly associate “raw material” with appropriated images of women and racial minorities. Lastly, the raw material framework distorts the creative practices it aims to promote; artists often appropriate familiar imagery not because it is “raw,” but because it offers a rich source of shared cultural meaning. This Article puts forward a set of alternative approaches that situate questions of IP infringement more concretely in the actual creative processes at issue.

I have read this article several times now & have found that it richly rewards each re-reading. Essentially, Gilden examines the "transformation" of fair use doctrine prompted by Judge Pierre Leval's seminal article Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990), by investigating the practical effects of Leval's suggestion that courts presented with fair use defenses ask whether the allegedly infringing junior work "transformed" the copied elements of the senior work. In particular, Gilden focuses on Leval's use of the "raw and cooked" metaphor to analyze transformativeness: a use is "raw" and not transformative if it does not add meaning to the senior work, and "cooked" or transformative if it does add meaning to the senior work. Notably, Leval borrowed the metaphor from French anthropologist Claude Levi-Strauss, and courts have adopted it, without acknowledging - or perhaps even realizing - its source.

Of course, Leval's article was immensely important to the rationalization and expansion of the fair use doctrine under the 1976 Act. But Gilden observes that Leval's use of the "raw & cooked" metaphor may have had unintended effects. In particular, his study of cases suggests that a court's assessment of whether an allegedly infringing use is "raw" or "cooked" is affected by the court's familiarity with the context of the use, in particular the rhetorical forms common to different social groups. In other words, courts appear to be less likely to find fair use when the judge in unfamiliar with the aesthetic genre or social group in which the allegedly infringing author is working. This is a troubling finding, because it suggests that marginal and minority authors may be less able to successfully make fair use defenses than majority authors.

Interestingly, Gilden is not alone in questioning the rhetoric of "transformation." Amy Adler's fantastic new article Fair Use and the Future of Art also questions the "transformativeness" requirement from a different angle, asking whether it is consistent with social practice among contemporary artists, and suggesting that courts should focus on market substitution instead. And I have previously addressed similar issues, in an article considering Andy Warhol's use of copyrighted images and trademarks in his artwork. And at a recent Belmont Law Review symposium, I presented a draft paper titled Aesthetic Nondiscrimination & Fair Use, drawing on Gilden & Adler's work to argue that the aesthetic nondiscrimination doctrine, which provides that judges should not (cannot?) consider the aesthetic value of a work when determining whether it is original and protected by copyright, should also apply to fair use. In other words, judges should not consider the aesthetic value of a "transformation" when determining whether it is a fair use, but only whether it changes the original. I hope to have a draft posted soon!