The Aesthetics of Copyright Adjudication

Abstract

The American legal system is unable to continue avoiding the question of art versus non-art. In particular, questions of copyrightability often hinge on art-status. Yet art is a constantly evolving, reflexive field in which artists and philosophers continually challenge the status quo. Judges would benefit from analyzing claims to artstatus under the objectivity provided by well-developed aesthetic theories, aided by expert testimony when needed After reviewing several major philosophies of art, this Article proposes a framework for adjudicating art-status based on an aesthetic theory known as the Historical Definition of Art. Furthermore, to balance copyright law's purpose of protecting innovation with its need to promote public availability of copyrighted works, this Article proposes the creation of a new statutory exception to provide a defense for "utilitarian adaptations" of copyrighted three-dimensional works. This statutory defense would serve to encourage innovation and stimulate production of novel goods.