Copyright Law and the Art of Becoming Human

Liturgy as a way of lifeIt is not uncommon to hear theologians speak of a “relational turn” in our thinking about personhood.  The idea, it seems to me, is that 20th century thinking about personhood shifts away from an individualistic understanding of the person as isolated from his/her community to a relational understanding of the person as embedded in his/her community.  The modern thinker assumes that a person is most free when he/she is not dependent on others.  The postmodern thinker assumes that a person flourishes in the bonds of commitment that he/she makes with others.

However, there are all sorts of ways that contemporary society remains beholden to the view of a person as, first and foremost, an individual. One area of our society where this dynamic between relational and individualistic accounts of human personhood plays itself out is the murky waters of copyright law.  Bruce Ellis Benson, professor of philosophy at Wheaton College, points out in his recent book Liturgy as a Way of Life: Embodying the Arts in Christian Worship (Baker Academic, 2013), the very notion of copyright law is a modern invention.[pp. 85-90]  The idea that an individual could have ownership and control over a cultural product was first codified in the United Kingdom as the Statute of Anne (1710).

Benson’s overall thesis is that “living (and not simply ‘making art’) is a process of improvisation, in which one starts with things gifted to us by other people and works from there.”[p. 15]  He applies this broad and deceptively simple thesis to copyright law, among other aspects of the arts, and suggests that it needs to be re-thought along the lines of an improvisational ontology.

To understand where Benson is heading, let us begin by highlighting a couple of problems for copyright law.  First, where is the line between what is mine and what is yours?  Artists clearly borrow many ideas and themes from other artists, and so how do we decide what (and for how long) a cultural product belongs to an artist or to the public.  Second, who has control over (and the power to enforce) the copyright of a cultural product?  The ability to reproduce an image or a song is remarkably easy today, and this naturally raises questions about the ways and contexts in which cultural products are reproduced.  Ironically, these problems are not original, and, at the end of the day, money is typically at the heart of both of these issues.

Benson believes that copyright should be “significantly shortened and less restrictive”[p. 90] and that both of the above problems can be addressed by exploring the improvisational nature of human existence. Take the first question: “where is the line between what is mine and what is yours?”  Benson argues that this line is exceedingly blurry because our personhood is improvisational in the sense that our lives are shaped by a continuous and ongoing “call and response.”  Benson roots this call and response within the Trinitarian eternal “calls and responses.”  These perichoretic relationships are the metaphysical basis for the notion of a person as fundamentally relational.  Our lives, says Benson, are bracketed by a call and response that echoes into our pasts and reverberates into our futures.  This deeply relational understanding of personhood seriously questions notions of ownership and authorship that many people today still take for granted.

Now consider the second question: “who has control over (and the power to enforce) the copyright of a cultural product?”  It is important to note a fundamental difference between the two questions.  The first primarily asks a question about who we are.  The second, however, asks us to consider who we would become. Are we a society of individuals who seek to control our own rights and interests, or do we have responsibilities and relationships before we are recognized as individuals?

Benson argues that even in the realm of copyright law, our focus should be on the sort of society we are becoming.  He writes,  “Doing ‘artistic things’ is certainly important, but it is even more fundamental to work on the artistry of becoming a ‘living sacrifice.’  Our first and foremost project is working with God to become his works of art.”[p. 133] We might say that the sort of society God desires us to be is one shaped by this love for the world through the death and resurrection of Jesus.  The classic text is Philippians 2:5-11 where Paul encourages the Philippians to become a community of humility and love; a community that looks out for the interests of others.

Figuring out how to shape copyright along these lines is no easy task, but things may be moving in some positive directions.  The expansion of fair use in the 1980s, the 2002 release of Creative Commons licenses and uses of the Scène à faire doctrine are signs that the times may be changing.  Nevertheless, the challenge of the gospel remains as relevant as ever.  From copyright law to every aspect of our lives, the gospel challenges us to live in a way that empowers others rather than merely consolidating power for ourselves.

Are copyright laws merely the neutral tools of our legal system, or do these legal practices reflect who we are and shape who we become? How might our culture be different if, instead of spending so much time worrying about the control of cultural products, we chose to be more generous with what we considered “public domain”?

Jim Watkins is a regular contributor to Transpositions. In 2012, he completed PhD in theology through the Institute for Theology, Imagination and the Arts, and he currently teaches humanities and bible at Veritas School in Richmond, VA.  His  forthcoming book Creativity as Sacrifice: Toward a Theological Model for Human Creativity in the Arts will be published with Fortress Press.

For legal consultation and sound common sense, special thanks are due to Jim’s brother Jeff Watkins, who is currently studying copyright law and intellectual property at the University of Southern California.

Image used under fair use for purposes of comment.

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3 Comments

  • Makoto Fujimura says:

    Respectfully, I disagree with the approach to copyright here. It was in the 1920’s that US copyright laws were established for playwrights. Can you name a single American playwright before 1920’s?

    Arthur Miller, Horton Foote, August Wilson, even T.S. Eliot, comes after the copyright laws protected their works, therefore they were able to make a living off their works.

    As someone who often defends the right of artists to exist, and fight against their extinction, I find this entry discouraging.

    Now, I am not saying that artists cannot volunteer their works for public use. I have done exactly that through www.byfor.org, and I encourage artists to be generous.

    But copyright laws are essential for the artist’s survival. In my mind, copyright laws needs to be more stringent, as many, without my permission, use my works for powerpoint usage in the churches, often cutting up my images for utilitarian purposes…Even though I give away high resolution images through www.byfor.org exactly for those purposes…

    Makoto Fujimura

  • Jim Watkins says:

    Makoto, thank you for this comment. I appreciate your concerns, but it would help me to know if there is anything specific in my post that you disagree with? I do not really mean to present an “approach” to copyright law, but I simply wanted to bring to light what Bruce Benson says about copyright law and raise some questions about the relationships between copyright law and philosophical/theological questions about what it means to be human.

    That said, I can respond to some of the points you raise in your comment.

    It was not my intention to attack the existence of artists. As someone who has studied painting at a Christian college, I am all too aware that many churches view artists as free labor, called by God to use their gifts for the worshiping community. I believe that artists should be paid for their work, and that they should have some control over how their work is presented.

    Like you, I also believe that copyright law can play a valuable role in society. I am not arguing that it should be abolished. Rather, I am questioning the sort of copyright law that we should have.

    The questions that I raise (and the ones that Benson raises) arise out of a theological commitment to a relational understanding of human existence. As Benson points out in his book, the reason that this view of human existence challenges contemporary copyright law is that it challenges individualistic notions of ownership and authorship that we often take for granted.

    Your comments raise the important and valid point that more can and needs to be said about the protection of the individual rights of the artist. It might have been better for me to say more about this, but I did not set out to write a comprehensive piece on copyright law. However, there is nothing in Benson’s views (nor mine) that seek to erase the artist’s rights completely. I think that Benson simply wants copyright law to more appropriately reflect the reality that no innovator is completely original, and that all creativity is nourished by a much larger community.

    Your point about churches using images of your work without permission touches on an important and difficult issue. It could be argued that copyright laws are there to protect you, the artist, and that churches get away with illegal presentations of your work because it would be so difficult to enforce these laws in this case. On the other hand, one could argue that copyright laws are really there to protect powerful corporations who have the means to enforce those laws. In 1998, for example, Disney effectively lobbied the US government to extend the term of copyright to 20 years in order to maintain control over Mickey Mouse.

    Over all, I think we are coming at this issue from two different perspectives, but from what I have read in your comment, I cannot see any reason why we should necessarily disagree. I am approaching copyright law from the perspective that it may have been shaped by individualistic notions of authorship and ownership, and you are approaching copyright law from the perspective of one who wants to ensure that his work is protected. These are not mutually exclusive perspectives.

    When it comes to how to deal with the Christian church’s misuse of copyright, I would want to approach the matter by developing a Biblical and theological rationale for copyright that would help Christians to see why they should respect the makers of works that they use in their churches. I think this approach would include the thoughts I have written above, but, as the post is primarily questioning individualistic notions of authorship, it would also need to give more space to the rights and needs of those who make works of art.

    • Makoto Fujimura says:

      Thanks Jim. I have not read the original text that you are referring to, so I perhaps should have done that before commenting. Caring for expression (individualistic as it seems) is important, and I am not disagreeing with your points necessarily, as much as to point out the possibility of the unintended message the book and your comments sends to the public sphere.

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