The 5 Pointz case: a response (on the risk of cultural gatekeeping in copyright)

The piece of (street) artwork at stake
in the '5 Pointz' case
The recent decision in the 5 Pointz case [here] has brought back to centre stage one of the quirks of US copyright law: the right to object to any intentional or grossly negligent destruction of works of ‘recognized stature’ (US Code, Title 17, §106). As explained by Katfriend Mira Sundara Rajan in a recent commentary of the case [here], this right was introduced by the 1990 Visual Artists Rights Act (VARA) under the umbrella doctrine of moral rights (although this right goes beyond what the moral right doctrine traditionally entails).

From one vantage, the decision is to be welcome, inasmuch as  it protects a notable piece of street art [per the court  and mainstream media, here and here], thereby  enabling the preservation  of more contemporary forms of our cultural heritage. However, this Kat has some reservations regarding the ability of the IP law framework to embrace such a role. In particular, who determines what is ‘recognized stature’ and under criteria is it determined? The answer: mainly as the court decides (read: judges), for the simple reason that Congress offered little in the way of definition or guidance on this point [see Cheffins at 600]. This places US judges in the difficult position of acting as cultural gatekeepers, given that they have the final say as to what is worthy  of such protection.
Judges themselves have noted  the challenge in being asked to rule on the protection of works of recognized stature [see Martin v City of Indiana (1999) ; Cheffins v Stewart (2016)]. This is especially so in that  they are called upon to render judgment on an issue in which they are not expected to have any  necessary expertise, namely, when is a work of "recognized stature”.
Some may argue that a concern about judges serving as cultural gatekeepers is allayed by the fact that the context is unique to US law and it is an unusual form of moral right. Moreover, since few decisions are actually rendered under this provision, this risk of cultural gatekeeping is well-contained. However,  in this Kat’s view, this it is not the only occasion in which judges are in the position of playing the part of cultural gatekeepers. After all, copyright law applies selectively to prescribed categories, and only these categories, of original creative works in a fixed form – conditions which are themselves culturally-bounded [here and here].
Furthermore, once copyright subsists in a work, it provides a platform to control its dissemination, thereby fundamentally impacting on the nature of our cultural landscape. Right holders, artists and their heirs can even pursue claims bordering on strategies of ‘heritage preservation’ or ‘heritage safeguarding’, either through the moral right doctrine of integrity, or the economic right to control some most derivative works, and of course, the US right to object to the destruction of works of recognized stature. Cultural gatekeeping thus can be seen as underpinning almost every aspect of copyright long before the right to object to the destruction of works of ‘recognized stature’ was introduced in the US.
Thus, the larger question is how to make sure no (or limited) cultural gatekeeping takes place there? First, we do so by reiterating  that copyright law does not deal with cultural quality or aesthetic considerations, something both commentators and  judges in various jurisdictions (including in the US) have often emphasised [see Gracen at 304; Schott Musik (1997) 145 ALR 483, 486, Hensher v Restawile (1974) 2 All ER 420, 423]. In many ways, eschewing any consideration of cultural or aesthetic quality is one of the main safeguards within copyright law to prevent cultural gatekeeping. Indeed, judges have been vigilant not to behave as art critics [see Bleinstein at 251]. When they have, they have been corrected thanks to the appeal mechanism, i.e. corrective mechanisms built into our legal systems.

A notable example was  the Victor Hugo decision (2003) in which the Court of Appeal of Paris had extended the moral  right of integrity enjoyed  by  Hugo’s heirs  so as to ban the publication of sequels of Les Miserables (focusing on the main character Jean Valjean).
The Paris Court of Appeal stated:
"… [O]utlawing sequels of Les Miserables does not, as the parties contend, breach the principle of free creation since, in the facts presented before us, this work, being a  pillar of world literature. [Les Miserables] […] is not a mere novel for it presents a philosophical and political approach”
“Considering that, it follows that no sequel shall ever be given to a work such as Les Miserables, forever complete, and that the company Plon has, by editing and publishing Cosette ou Le Temps Des Illusions and Marius ou le Fugitif, by presenting the works as sequels to Les Miserables, violated Victor Hugo’s moral right as vested in the latter literary work” [Kats’ translation]
This decision was subsequently overturned by the Court of Cassation [here and here], the highest court in France for matters of civil law, which stressed that the cultural significance of the work could not be taken into consideration in construing the law or in balancing the fundamental rights at stake.  
But are these safeguards enough? The appeal process suffers from a major drawback: it depends upon the claimants’ financial ability to pursue appeal proceedings. Even more, what about more subtle cultural references made in connection with determining the subsistence or infringement of copyright, another slippery slope of cultural gatekeeping? 

Thus,  in Hadley v Kemp (1999), Park J draw a (bold) comparison between the creative process followed by members of the Spandau Ballet and that of  Beethoven to, it seems, reach his  conclusion on the difficult distinction between authorship, joint-authorship and performership in copyright law ([1999] EMLR 589, 645-6).

The Spandau Ballet

The decision reads:
After all, when Mr Kemp [Spandau Ballet’s lead composer and musician] devised the song he devised it for performance, not by himself as a solo artist, but by Mr Hadley [Spandau Ballet’s lead singer] and the whole band. A composer can ‘hear’ the sound of his composition in his mind before he ever hears it played. Beethoven could hear his music in this sense even when he was deaf. When Mr Kemp was devising his songs the sound which he had in his musical consciousness must surely have been the sound they would have when performed by Spandau Ballet, not the sound they would have when sung by Mr Kemp alone to the accompaniment just of his own guitar.’

Beethoven and his cat unimpressed
by the comparison
Why use a canon of classical music to inform a decision on copyright about pop music marks?  The analogy drawn here by the Court between Beethoven and the Spaudau Ballet (or rather between their respective practices) begs the question of how much this comparison weighed on the outcome of the case. Would the court have sided with Kemp had the decision been informed by another cultural reference, say Björk, Aretha Franklin, Daft Punk or…Kim Kardashian?
There may be a risk of indirect cultural gatekeeping in shepherding a select few fountainheads of our culture as relevant illustrations for the ‘hows’ and ‘whys’ of creativity for copyright purposes. This question is particularly important when it affects the distribution of rights between claimants or the eligibility protection of creative expressions for copyright protection.  In this regard, Hadley v Kemp is not an isolated instance (see Rockford Map Publishers at 148-9; Miller v Civil City of South Bend at 1093-5; Garcia v Google at 742-3).
What could be the safeguard against cultural gatekeeping? The answer is discussing, disputing and engaging those who favour a select few canons of so-called ‘high-culture’ in copyright law? To be clear— the result of this process is not predetermined. It is only through critical inquiry that we can reach reasonable positions on whether cultural gatekeeping and the biases that it entails, are welcome parts of the copyright law, or   is it an inevitable deviance of copyright law-making processes?
The 5 Pointz case: a response (on the risk of cultural gatekeeping in copyright) The 5 Pointz case: a response (on the risk of cultural gatekeeping in copyright) Reviewed by Mathilde Pavis on Tuesday, March 20, 2018 Rating: 5

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