Bleistein, the Problem of Aesthetic Progress, and the Making of American Copyright Law

This Article presents a revisionist account of the 1903 Supreme Court case Bleistein v. Donaldson Lithographic Co. and the altogether decisive and damaging influence it has exerted on the making of modern American copyright law. Courts and commentators have long misunderstood Justice Holmes’s celebrated opinion for the majority in Bleistein in two fundamental ways. First, we have misunderstood Holmes’s oft-cited declaration that a work need merely express its author’s “personality” to satisfy copyright law’s originality requirement. Scholars have cited Bleistein’s — and our current law’s — nominal originality requirement as conclusive evidence that literary romanticism did not significantly influence American copyright law. In fact, when understood in its specifically American cultural context, Bleistein’s reliance on “personality” shows the profound influence that specifically American literary romanticism has had on the law. Second, we have misunderstood Holmes’s equally oft-cited declaration in Bleistein that judges should refrain from judging aesthetic merit. We have read Holmes’s call for judicial aesthetic neutrality as addressed, like his invocation of “personality,” to copyright law’s originality requirement. It was not. It was a direct response to Justice Harlan’s dissenting view (and the Sixth Circuit Court of Appeals’ ruling below) that the aesthetic works at issue were unprotectable because they failed to satisfy the constitutional requirement, as then understood, that the works must “promote Progress” to qualify for protection under the Intellectual Property Clause. Our misreading of these two crucial moments in Bleistein and, more importantly, of how they interrelate has had significant historiographical and practical consequences. As a historiographical matter, we have failed to appreciate the degree to which the opinion formed the principal turning point in the development of U.S. copyright law. The effect of Bleistein was to substantially advance the rise of “commercial value” as both the basis and purpose of copyright rights and to quicken the decline and eventual erasure of “personality” as a significant factor in the law. Perhaps more importantly, as a doctrinal and policy matter, our century-long misreading of Bleistein, particularly by courts, has only intensified both of these culturally regressive trends. Drawing upon the tradition of American pragmatist aesthetic philosophy, this Article urges doctrinal reforms that may help to repair the damage that Bleistein has done. It advocates concrete reforms in functionality, transformativeness, and moral rights doctrine. The need for these reforms has grown more urgent. The technological and cultural conditions that originally underlay Bleistein have fundamentally changed. The pragmatist vision of aesthetic progress calls for reforms that seek to promote the progress of, rather than suppress, our current condition of massively distributed authorship, user-generated content, and, at least as an aesthetic matter, post-scarcity.