Cardozo Arts & Entertainment Law Journal
Abstract
Copyright law encourages artistic and literary expression by policing copying and embracing the value of originality. To some degree, however, originality comes into focus only through the lens of copying, its unacknowledged, dark twin. The questions I ask in this inquiy are both "what" and "why "? What is the difference between a work and a copy? If there is a difference, why is the copy less worthy than the original? In my consideration of these questions, I draw upon a body of theory that attempts to explain the unequal status conferred by the art world on perceptually indiscernible objects-authentic artworks, for example, as opposed to perfect forgeries, or genuine works of conceptual art as opposed to physically identical hoaxes or frauds.
After introducing the aesthetic distinction between reproductions, representations and fakes, I apply these concepts to a series of copyright infringement cases that deal with photographs, arguing that the transformation of objects into works, works into copies, and copies back into works is quickened by photography into a routine occurrence and a recurring legal problem. Finally, in conclusion, I reflect on how our understanding of the Janus-faced entity comprised of the work and its copy underscores the inescapable significance of the Romantic authorship paradigm for copyright law.
Disciplines
Entertainment, Arts, and Sports Law | Intellectual Property Law | Law
Recommended Citation
Jeffrey Malkan,
What Is a Copy?,
23
Cardozo Arts & Ent. L.J.
419
(2005).
Available at:
https://larc.cardozo.yu.edu/cardozoaelj/vol23/iss2/4