This is the second part of a five-part paper, a version of which was given April 26, 2013 as the keynote address at the symposium, "Lament of the Makers: Conceptualism and Poetic Freedom," hosted by the Princeton Graduate Colloquium on Contemporary Poetry. Other symposium participants were Timothy Donnelly, Jena Osman, and Kent Johnson. Monica de la Torre was the featured poet. Part 1 may be found here.



For a sty, of course, is found on a farm. And in the United States, at least today, and we have nothing if not today, farms exist primarily as property, property that operates, Lord willing and the creek don’t rise, towards profit. I am a lawyer. Indeed, in a recent Jacket2 article in which Georges Perec and I were discussed, Perec was described as a “poet and Holocaust survivor,” whereas I was described as a “lawyer who appropriates.”

This is where it is necessary to remember that the ability to name an artist as an artist, to label the parameters of aesthetic authority as such, is nothing less than the ability to create art itself: R. Mutt did not make a urinal into work of art. Nor did Duchamp, whoever he was. This is also where it is necessary to quote The Copyright Act of 1976, which protects “original works of authorship fixed in any tangible medium of expression.” Originality and, to a material extent, expression—this is what the law protects.

Why does the law protect this? Here we have not a political question, but one of ideology. The 1976 Copyright Act also, and this may be of some significance, grants the author control over the work’s reproduction, distribution, performance, and display, as well as the right to create derivative works. Thus, according to the parameters of poetry and the Copyright Act, I am a lawyer who exists outside the law, and whatever I am doing, it is not poetry.

As an aside, law, like poetry, is a subset of rhetoric. As a further aside, I should say that much of the day-to-day business of lawyering involves plagiarism and appropriation, for it is a precedent-bound discipline that rewards nothing so much and so often as dumb reiteration. Contrarily, the cases that become headlines are most often those in which cases are overturned and the game suddenly changed. Segregation struck down, abortion made lawful, freedom of speech permitted in public schools—moments of great social and individual upset.

And it is naturally upsetting to see the law altered, for then how do we know the law?

But back to the question of materiality.

Authorial copyright, as you may know, began in Britain in 1710 with the Statute of Anne; previously, the protections and responsibilities of copyright were exclusive to the printer. By investing copyright in the author, the law could directly encourage and regulate textual composition as part of its trade regulation of the press. Authorial copyright was a product of the Enlightenment, alongside Kant, and this all rather paved the way for the Hegelian subject. A subject constituted within the law as that entity that could be recognized as able to exert its will over property and/or be alienated therefrom, which then allowed for the emergence of the Romantic author—for while Romanticism tossed over rationality in favor of authenticity and sincerity, there remained the singular subjectivity that could be the a priori creator—and whom the law recognized and protected as such.

We are starting late in the game, skipping over the finer points of how authorship developed during the medieval period in Western Europe as a way to differentiate between the immutable and the interpreted, what words were Word as Law.

The figure of the author is, however, just our nominal point of lawful origin. Since 1976, concurring or concurrent with Barthes[1] and Derrida, it is the work itself which must be scrutinized for originality, as what is protected is not the authorial hand or vision but its stake in the intellectual property market. So work-for-hire is not protected, while “fair use” is, underscoring an aesthetic ethos of authority as authorship.[2] Further underscored by the fact that judicial assessment of fair use also includes consideration of the effect of the use on the potential market for and value of the original work.

Thus, as one critic noted, Warhol’s art becomes not about the ontology of art but about “the possibility of mass-cultural participation within capitalism.”[3] And 1980s appropriation art, not as jamming copyright, but as extending the reach of authorship.[4] And on April 7, 2013, The New York Times featured an op-ed on a Supreme Court ruling that permitted importation and resale of foreign editions of American books, which are, the author explained, “often cheaper than domestic editions.” This was another example of how the “global economic marketplace is rapidly depleting author’s income streams,” thus threatening “a diverse literary culture” that is “essential to democracy.”[5]

It should be noted as well that the editorial author was Scott Turow, author of many legal thrillers including several that became major motion pictures. It should also be noted that on my Google browser, the op-ed had a banner ad for a “Free Check for Plagiarism: Check Your Writing for Plagiarism and Correct Grammar Errors!” and on my Safari browser, the same article had a banner ad for Blanchard and Company, which promised “No Hidden Fees,” and suggested, “Buy Gold.”

After setting forth the mechanics for how the abrogation of royalties has been amplified by the ebook, etc., Turow ended his essay by describing a recent trip to Russia, where publishing piracy runs rampant, rampant meaning indiscriminate, concluding, “The Constitution’s framers had it right. Soviet-style repression is not necessary to diminish author’s output and influence. Just devalue their copyrights.”

I should note Scott Turow is also a lawyer, described by Time as “Bard of the Litigious Age.”

So, you rightly ask, what?

[1] “The Death of the Author” was first published in 1968.

[2] My synopsis here is a thinly-veiled restatement of the analysis found in Nate Harrison’s essay, “The Pictures Generation, the Copyright Act of 1976, and the Reassertion of Authorship in Postmodernity,” in which he argues that the postmodern avant-garde, no less than the law, was a reassertion of authorship guised in a critique of originality. [], as accessed July 8, 2012.

[3] Anthony E. Grudin. “Except Like a Tracing”: Defectiveness, Accuracy, and Class in Early Warhol,” October 140. (Spring 2012): 139-164.

[4] See, Harrison, supra, noting that in the appropriation art of Sherrie Levine and Richard Prince, “the object is ‘redeemed’ precisely by a reclamation of authorial agency….the works reasserted the very productive core of the romantic authorial mode….” This is entirely in keeping with (and inscribed in) the history of the readymade itself: In 1942, Jean Arp claimed to have found François Picabia’s 1919 “rectified readymade” of Duchamp’s L.H.O.O.Q., titled “Tableau Dada par Marcel Duchamp.” The image was taped to a posterboard, circled in blue, and annotated by Picabia. Picabia drew the mustache on another image of the Gioconda in order to reproduce in for a 1920 issue of 391 when he could not wait for Duchamp to send him the original. According to Duchamp, Picabia forgot the beard, and Duchamp annotated the rectified readymade in the 1940s with the annotation: moustache par Picabia / barbiche par Marcel Duchamp. Note how Picabia’s annotation mirrors and extends Duchamp’s use of notation as part of the art, extended once again by Duchamp in terms of authorship and origine. This goes to a larger conversation about art and language in the age of abstraction.

[5] Scott Turow, “The Slow Death of the American Author,” The New York Times, April 7, 2013. []

Originally Published: April 29th, 2013

Poet and criminal defense attorney Vanessa Place earned a BA at the University of Massachusetts at Amherst, an MFA at Antioch University, and a JD at Boston University.   In her conceptual poetry, Place explores the impact of context and expectation. In a 2010 interview for Lemon Hound, Place has...