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Andrew Gilden, Raw Materials and the Creative Process, 104 Geo. L.J. 355 (2016).

Over the past decade or two, intellectual property scholars have learned to pay attention to the rhetoric that people use when arguing and advocating. In particular, many scholars have challenged the use of property rhetoric about “owning” and “stealing” by those seeking expanded IP protection. According to these scholars, this rhetoric has the potential to pump inappropriate moral intuitions and to distort the utilitarian analysis that is supposed to guide IP policymaking.

Andrew Gilden’s recent article shares this interest in the language of IP, but he trains his sights instead on the rhetoric used by those seeking to limit the scope of copyright protection and to expand fair use. Although Gilden is, I think, sympathetic with their project, he demonstrates how one metaphor—whether the plaintiff’s work was used as “raw material” in the defendant’s work—can have pernicious effects on the kinds of artists that are insulated by fair use law.

Gilden begins by establishing the descriptive analytic claim that courts and scholars have adopted a “raw-material framework” for determining whether the defendant’s use of the plaintiff’s work constitutes fair use in copyright law. Gilden also discusses the raw material metaphor in right-of-publicity cases, but I will focus on the copyright cases. According to the logic of the metaphor, the defendant’s work should be protected by fair use when he uses the plaintiff’s work as merely raw material for his own creativity. For example, Patrick Cariou’s photographs of Jamaican men are figured as merely raw materials in Richard Prince’s Canal Zone collages, no different than paint or charcoal.

Gilden traces the raw materials metaphor to Judge Pierre Leval’s Harvard Law Review article on transformative use, and he tracks its implementation by a range of different courts and scholars. They use the metaphor to “emphasize the costs that copyright imposes on future cultural participants” and to “underscore that creative works are not just goods: they are resources.” (P. 364.) In doing so, the raw materials framework seems to have liberalized the fair use doctrine by excusing defendants even when they were not targeting plaintiffs’ works with criticism or commentary.

Although Gilden seems to support the general direction that the raw materials framework takes us, he argues that this rhetoric has troubling normative implications. According to Gilden’s analysis of the cases, whether the defendant is using the plaintiff’s work as raw material seems to depend largely on the status of the parties. Jeff Koons and Richard Prince can successfully employ the metaphor in their defense, but the street artist Thierry Guetta (a.k.a. Mr. Brainwash) was found liable for copyright infringement for manipulating photographs of the Sex Pistols’ Sid Vicious. According to the court, the defendant’s artworks “remain at their core pictures of Sid Vicious.”

Conversely, high-status plaintiffs and artworks incorporating images of high-status people seem better able to defeat raw materials claims than do those of lower status. The works of J. K. Rowling, the creators of Seinfeld, and the photographer of the above-mentioned Sex Pistols’ bassist were not treated as raw materials, while works of lower-status artists and the bodies of women and racial minorities can be appropriated as raw materials in others’ works. In Prince, for example, the court highlighted the vast differences in market prices for the two artists’ works, and it described the Jamaican man in one of the plaintiff’s photographs as “a human being in his natural habitat.”

The raw materials framework does more than reward high-status artists at the expense of low-status artists, according to Gilden. It also obscures an important aspect of the creative process. The raw materials approach validates subsequent works that either criticize those that come before or entirely sideline prior works’ creative cultural value. As Gilden argues, however, the latter is rarely, if ever, the case, even for works by Koons and Prince. Despite these artists’ assertions during litigation, their choices of which works to appropriate were based on the expressive and social significance of those works.

Gilden’s solution to the distortions caused by the raw materials framework is not to abandon it entirely, but rather to supplement its application to fair use law with a richer understanding of the defendant’s creative process. Instead of focusing on the social value that emerges from defendants’ activities (something that is likely to be skewed by the factors discussed above), courts should “give greater attention to the subjective experience of creation.” (P. 398.) Thus, the first fair use factor should favor the defendant whenever she “uses the work…as a bona fide aspect” of her creative process. (P. 396.) Doing so, Gilden suggests, will generate a less biased and more realistic account of the nature of sequential creativity.

Gilden’s article recognizes an important aspect of contemporary fair use rhetoric, and he demonstrates its distributive effects without insisting that those effects will always arise. Finally, Gilden proposes a solution to this difficulty, and he explores the solution’s limitations. He has produced a thoughtful article that I like lots.

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Cite as: Christopher J. Buccafusco, Unevenly Cooked: Raw Materials and Fair Use, JOTWELL (May 26, 2017) (reviewing Andrew Gilden, Raw Materials and the Creative Process, 104 Geo. L.J. 355 (2016)), http://ip.jotwell.com/unevenly-cooked-raw-materials-and-fair-use/.