by Roberta Rosenthal Kwall. Stanford, CA: Stanford Law Books, 2010. 272pp. Cloth. $70.00. ISBN: 9780804756433. Paperback. $24.95. ISBN: 9780804763677. E-book. $24.95. ISBN: 9780804773416.
Reviewed by Beau Breslin, Department of Government, Skidmore College, bbreslin [at] skidmore.edu.
Reviews, especially of good books, should not produce anxiety on the part of the reviewer. They should not scare the critic, whose role is simply to describe and assess the character and quality of a particular work. And yet that is precisely what happened (to this reviewer at least) when evaluating Roberta Rosenthal Kwall’s THE SOUL OF CREATIVITY: FORGING A MORAL RIGHTS LAW FOR THE UNITED STATES, a book that has as its primary mission to push for enhanced legal protection of any author’s “message and meaning.” Imagine my uneasiness: I agreed to write a review of a book whose central message is “don’t mess with an author’s central message.” I better get this right.
Kwall begins with a fairly straightforward assumption: that consumers and users of an author’s work – including reviewers, critics, and commentators – often trample on the work’s message, leaving the author with little recourse but to limp away and sulk about being misunderstood. The assumption is debatable, but let’s suppose it is accurate. After all, we take liberties all the time with an author’s primary message, and we often justify those liberties under some “interpretive” authority. I can present a sloppy reading of a book or a work of art (including, ironically, Kwall’s book itself) because I can claim that I am presenting my own interpretation of the piece. What is more, Kwall insists an author’s message is also just as easily obscured because of economic factors: we will manipulate an author’s ideas when it serves our commercial interests. The problem for Kwall is that the law is not set up to account for these troubling realities.
“The theoretical premise of this book,” Kwall writes, “is that the law can, and should, be shaped in response to all relevant forces motivating creativity, not just those concerned with economic reward” (p.xiv). In other words, she condemns the current situation in which law has been crafted mostly to advance the economic interests surrounding an author’s work, thus relegating the creative character to less legal protection. She fiercely defends the author’s ability to articulate a message and to safeguard that message from possible manipulation or exploitation. In her mind, the meaning and the message of a book (or an article, a piece of art, and so on) as conveyed by the author of that work, is the feature most worthy of considerable legal protection. It should be the center of the law’s attention. Unfortunately, it is not.
THE SOUL OF CREATIVITY begins by describing the current, rather disappointing, state of intellectual [*342] property law in this country. The short book concludes by proposing a tangible solution to the law’s failures, a legal framework that aims to protect more forcefully the messages and meanings embedded in a work of art. In between are a half-dozen chapters in which Kwall uses theoretical analysis and snippets of cases to tell the story the law’s uneven protection of authorial rights. In all, she presents an unapologetically normative argument. She is disturbed by the reality that economics, and not a higher-level morality based on principles of integrity, dignity, inspiration, and creativity, governs American copyright law. She calls for something more than just primitive economic calculus to determine violations to an author’s work and soul.
Her aim in chapter 1 is to call attention to the rights of attribution ad integrity – both necessary ingredients for the view of moral rights she imagines – and to caution those who would sacrifice them. Central to her position is the belief that authors convey meaning in their works, that they have a point of view independent of the reader and that to butcher that point of view is to violate authorial dignity. Relatedly, Kwall is concerned in chapter 2 with the intrinsic dimension of the author’s work: Is the source and the reward of the creativity coming from the artist herself, or is it influenced by extrinsic factors such as commercial profit and success? Essential to Kwall’s normative design for a legal process that protects the artist and her creativity is a recognition and celebration of the primacy of the intrinsic dimension. Kwall admits, of course, that it is impossible to ignore the extrinsic dimension – what she occasionally calls the commodification of the author’s art. The key to justify the extrinsic component is to make sure that it is a reflection of the intrinsic value of the work. Economic considerations can only influence the reception of an artist’s work when the artist’s meaning and message are intact.
Chapter 3 is about the particulars of the American legal system as they relate to copyright law, and the limitations of the law in protecting an author’s intrinsic worth. Chapter 4 then examines the international scene on the protection of authorial moral rights. Although there is significant variation among countries on the level of integrity and moral rights afforded authors, it is clear that Kwall wishes to contrast the relatively generous protection extended to authors by certain countries’ legal code with the somewhat less generous protection afforded by American law. Trying to maintain a robust public domain with an equally powerful commitment to authorial moral rights, Kwall argues in chapter 5 that copyright law – the standard procedural mechanism for protecting authorial rights – is not the same as moral rights. The former is governed by economic concerns, whereas ethical concerns govern the latter. Here, the author wrestles with the scaffolding of First-Amendment jurisprudence, arguing that laws protecting an author’s moral rights warrant intermediate scrutiny rather than strict.
Chapters 6-8 extend her argument to less obvious, and considerably more complex, situations. Should a moral rights approach apply to fine art or should it be limited to writing (chapter 6)? What about the manual of instructions for home appliances? [*343] Someone wrote that document: should it be protected too? How should her normative solution apply to works crafted by “disguised” authors, artists who are largely unknown; or to collaborative work by multiple authors (chapter 7)? What about the protection of “personas,” images and characterizations of well-known figures (chapter 8)? Should they be defended with the same intensity as original works? It is at this point that Kwall articulates a new judicial standard, a “standard of heightened originality” as she calls it, that allows “courts to assess whether a work possesses requisite originality to be within the scope of moral rights protection” (p.85). In essence, she argues, the burden should not lay with the author to establish originality, thus allowing for the extension of moral rights protection to many forms and varieties of work.
In the last chapter Kwall finally presents her legal plan. She proposes a new scope of legislation, one that both refines and goes beyond existing laws that protect authors, but that is also sensitive to the public interest. She believes an author should have the capacity to “inform the public about the original nature of her artistic message and the meaning of her work” (p.151). Although her proposal is not a complete repudiation of existing legislation, it aims to protect authors’ meanings and messages at a higher rate than what they receive now. She describes her position this way: “My proposal achieves a balance between stronger protections for authors’ rights and the public interest in maintaining access to protected works. Its operative provisions are not only sensitive to the objectives of [current copyright law] as they have been understood historically, but also provide important safeguards for authorship norms” (p.164). She encourages legislators, executives, and judges to embrace her
There is much to admire about this monograph. Indeed, the normative angle presented in THE SOUL OF CREATIVITY is its greatest feature. Kwall is thoughtful in her analysis of existing copyright law and her policy suggestions are not at all outlandish. Readers will benefit from her deft skill in building the scaffolding of a plausible path to greater protection of moral rights. She defines moral rights in the beginning of the book, shows how so many authors remain unprotected by current statutes, and offers an imaginable solution to their problems. In addition, her devotion to the ethical claims of artists is admirable. It is true that economic factors play a significant, and even dominant, role in the calculation of an artist’s work. Kwall offers a compelling case that ethical concerns ought to triumph over commercial interests.
If the broader components – the normative components – represent the very best of this book’s features, it is the specific details that represent the book’s signature weakness. Kwall is not as adept at describing the specific situations that demand a new legal paradigm. The use of court cases, for example, is disappointingly thin. To be sure, Kwall cites a lot of cases, but she usually devotes no more than a single paragraph (or two) to each. Those less familiar with the development of copyright law might not gain much from these case references. Similarly, the illustrations she presents (of “collaborative” works, [*344] or “works for hire,” and “personas”) are also lacking. Richer, more vivid examples would have helped the reader more easily see the shortcomings of extant legislation and the need for new approaches. The chapters (especially in the first half of the book) are short and, at times, underdeveloped. This reader occasionally felt unsatisfied.
That said, the book should be useful for students of intellectual property law and, more specifically, students of copyright law. Its application to wider audiences may at first seem limited, and yet her prescription for altering or modifying legislation to meet the needs of a particular constituency is likely applicable across many different disciplines and several policy arenas. Policy-makers and students of public policy can learn from her courage in articulating a specific plan of action. If nothing else, however, THE SOUL OF CREATIVITY is fantastic at reminding us of the importance of getting an author’s central meaning and message correct. We should never mess with that fundamental principle. I hope I did not do so here.
© Copyright 2010 by the author, Beau Breslin.