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Paul K. Saint-Amour reviews Artistic License

Darren Hudson Hick. Artistic License: The Philosophical Problems of Copyright and Appropriation. Chicago: University of Chicago Press, 2017. 240 pp.

Review by Paul K. Saint-Amour

Artistic License: The Philosophical Problems of Copyright and Appropriation, says Darren Hudson Hick, was precipitated by a friend’s habit of downloading movies, music, and games from the internet, presumably without payment. Hick wanted to prove his friend wrong for obtaining digital media illegally and for attempting to justify the practice. The resulting book, thankfully, spends much less time scolding pirates and filesharers than it does exploring the grayer areas of copyright law that are usefully illuminated by the lamp of philosophy. These areas include the powers and responsibilities of coauthorship, the nature and definition of a work, the border between ideas and expression, the question of what constitutes transformative uses of protected works, and the doctrines of fair use and fair dealing. Each of these regions of law rests on terms, distinctions, and categories that are by turns elegant and nebulous and that cry out for clear-eyed analysis, especially as media forms and practices change.

The main rewards of Artistic License are to be found in Hick’s close engagement with particulars, from the fine points of copyright statutes to the details of individual legal cases and artistic projects. His final chapter offers an especially strong discussion of appropriation art—artworks that redeploy existing objects or artworks, often with such minimal transformation that they pose a limit case for fair use and fair dealing provisions. Staying close to work by the likes of Jeff Koons, Sherrie Levine, Richard Prince, and Elaine Sturtevant, Hick inductively concludes that appropriative works should be considered presumptively fair uses of their source works insofar as they express an idea distinct from that of the preexisting work. This is a useful rule of thumb and a surprising one to emerge from a book whose opening chapters can sound like a manifesto for rights-holder sovereignty.

Hick’s book has plenty of arguments with both copyright law and other philosophers’ attempts to rationalize or rethink its legal metaphysics. It’s harder, though, to say what Artistic License is arguing for overall. Midway through, it emerges that Hick regards copyright as a natural right—a right that inheres universally and inalienably in all persons rather than being bestowed by human-made laws enforced by particular governments. Although this view is rooted in John Locke’s Second Treatise on Government, Hick declares, “Happily, I am not beholden to the historical Locke for my own view” (p. 113). This claim severs his use of Locke’s ideas from their originary contexts, effectively exempting philosophy from history. What’s more, the ensuing argument in favor of copyright as a natural right is convoluted and unpersuasive. And if—as one assumes is true of the majority of Hick’s readers—you live in the United States, the United Kingdom, Canada, or another country whose copyright laws are state-granted economic rights, the natural rights argument is at most a diverting thought experiment.

This is not to impugn thought experiments. Philosophy shares with literature the capacity to imagine alternatives to actually existing laws and law worlds. But to have this-worldly traction, such counterfactual exercises need to have multiple points of contact with the history, present, and prospects of the actual world. Although Hick’s abstract arguments with his fellow philosophers and his concrete discussions of statutes and expressive works are often internally compelling, they are too seldom interlaced to show us exactly how philosophy can bear on legal doctrine and practice, and vice versa. Absent this strong crossing of law and philosophy, and only sparsely motivated in relation to contemporary debates about intellectual property and cultural production, Artistic License can seem to be islanded, talking mostly to itself. Clearly the filesharing friend is no longer the book’s imagined reader, but it’s difficult to say who is.