an image can present an actual person or an imaginary one. This collapses images of people (whether on paper or in the viewer s mind) into the real pe

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1 Uncanny Valley: Mixed Media and the Law Rebecca Please note: this is a very preliminary outline. I may change my mind, and I ve been wrong before. Works mixing text and images, or words and music, have repeatedly posed challenges to legal regulation, especially in the area of intellectual property. Courts have been able to position themselves with respect to words alone or images alone using various theories about the power, or lack thereof, of particular forms of communication. But with harder-to-define works like modern comic art, those aesthetic theories seem to break down. I will examine various cases in which these problems appear and suggest that the fundamental problem is not legal, but cultural: we cannot expect the law to do better understanding forms of art than society at large does. Comic art is troublesome for courts because it is in many ways uncanny, boundary-crossing, which is related to its culturally fraught status. Comic art combines text and images, and courts have very different relationships to text than to images. With texts, courts feel both expert and worshipful: text is transparent; courts have many tools to interpret it; and when it comes to free speech claims, courts are reluctant to condemn texts because, having a sense of how words operate, courts believe that words alone rarely do harm. Thus in Whorley, the recent 4 th Circuit child porn case, the dissenter objected that text-only s shouldn t be prosecutable as obscene because of First Amendment principles, but reasoned separately on the images, relying on statutory interpretation to exclude anime from the scope of the statute. The dissenter said, [t]he ability to consider and transmit thoughts and ideas through the medium of the written word is an attribute unique to humans. (Representational drawing, by contrast, is widely practiced in the animal world.) To the dissenter, the text of the s contained protected ideas, according to the dissent, but there was no sense that the images might have done so as well. Imagining and fantasy were words the dissent used about the texts, but those terms are equally applicable to drawings; giving them different levels of First Amendment protection needs some other justification. Visual art, I suspect, seems to many people be more than fantasy, closer to an act. With images, courts are more deeply divided against themselves, because images do not readily translate into the kinds of manipulable words with which courts are so comfortable. So we see two reactions: first, treating images as mystical in their operation on human minds. We think that images and words bear different relations to true reality. So, in McEwen, the Australian case about Simpsons porn, the judge concluded that all persons depicted in written works are necessarily imaginary because their images exist only in the reader s mind, whereas Page 1 of 5

2 an image can present an actual person or an imaginary one. This collapses images of people (whether on paper or in the viewer s mind) into the real people themselves. This magic-spell quality of images is a major component of obscenity law, but it s also apparent in copyright discussions of substantial similarity. Substantial similarity in the visual field just is; there is no way to break it down or describe it. Similar things happen in music, but it seems that courts are much more willing to accept testimony about musical components than about visual components. And this is related to the second reaction: treating images as, fundamentally, less important than words, because their impact is gestalt-like, irreducible to words. Again, obscenity is a good example, but I think copyright s willingness to tell artists to express themselves differently is also implicated here: there s no sense that there is an expressive harm in telling an artist that s/he has to do something significantly different from Steinberg s New Yorker s eye view of the world. Bringing it back to comics, I think comics make for hard cases because of the image/word conflict. They aren t novels, so they don t get understood as high-status and transparently meaningful. They aren t pure visual art, so they don t get the insulation of the transcendant power of nonverbal art. They are halfbreeds and they get treated as such, especially when a court is focused on the issue of profit. Doe v. TCI is a terrible case in many ways, but what I want to focus on here is the way in which the Missouri SCt used the test it set out, which was: If a product is being sold that predominantly exploits the commercial value of an individual's identity, that product should be held to violate the right of publicity and not be protected by the First Amendment. And somehow the court found that Spawn was predominantly an exploitation of Tony Twist, even though he was a minor character. The court was implicitly defining a subset of Spawn as the product. Speculating, might have it been aided in this definition by an image of comics as not really art? The court referred neither to the plot of Spawn nor to its visuals, neither of which bear any relationship to Tony Twist the hockey player. Likewise, the analysis may have been complicated by the rise of transmedia storytelling in which the boundaries of a particular narrative are very hard to define, so the uncanniness of comic art may be the prototype for things to come. Of course there s a directly contradictory comics case, Winter v. DC, decided under California law using the transformativeness test. But is transformativeness a better test for comic art, or just a different test? Let me contrast Doe v. TCI to a hypothetical I use in class: Brian Michael Bendis s portrait of Woody Allen, which I use because Allen has won some significant right of publicity cases and also because it s a standard portrait, done in charcoal, that seems therefore to fall right within the Saderup boundaries for what violates the right of publicity in California. Page 2 of 5

3 So, can Bendis sell his prints of Allen? Bendis makes a particular artistic claim: drawing Allen helps him understand Allen s art. Should we defer to the visual artist on this point? I d like to say we should, but I m not at all confident that a court would. And if a court would, is it because Bendis has use words to explain his visual art, the way Jeff Koons finally did? Another example of the way that mixed forms like comics distort legal analysis comes from McFarlane v. Gaiman: Mixed media get special treatment in joint authorship, favoring the user of words over the visual artist. Judge Posner was explicit that mixed media such as comic books and motion pictures were to be treated separately, because the author/writer figure might just tell the artist what to do in such an abstract way that his contribution wouldn t be copyrightable alone, and then the artist might just comply in such a noncreative way that his contribution wouldn t be copyrightable, but the result would be copyrightable and so that result would be silly. The nature of the comic book writer s contribution is not copyrightable because the result is a joint product, comprising the contributions of the writer, the penciler, the inker and the colorist. One wonders exactly what kind of motion picture or comic book Posner was imagining, entirely composed of scenes a faire components that together were more than that. In the specific case, there was no contention by anyone that the drawings were stock or otherwise uncopyrightable; if the artist had just done a painting of Cogliostro, it would have been copyrightable without any of Gaiman s character-building behind it. Peter David might produce a full script for a comic book, but that doesn t make Neil Gaiman s suggestions to the artist copyrightable just because writers can make specific contributions. Posner clearly distinguishes words and images, favoring the former in several ways. He distinguishes the Sam Spade case because the description of a character in prose leaves much to Page 3 of 5

4 the imagination, even when the description is detailed, whereas that s not true of visual images. Take a look at some images of Cogliostro yeah, nothing left to the imagination there. Posner says, ignoring generations of Star Trek and other audiovisual media fans, A reader of unillustrated fiction completes the work in his mind; the reader of a comic book or the viewer of a movie is passive. That is why kids lose a lot when they don t read fiction, even when the movies and television that they watch are aesthetically superior. So, Posner concludes, the stock character description provided by Gaiman became copyrightable when he was drawn and named and given speech. Gaiman s contribution, however, made Page 4 of 5

5 Cogliostro a character and not a drawing. Gaiman s contributions were quite equal to McFarlane s, according to Posner, even though they were just ideas. When there s a conflict between words and artwork, words get priority, even when they re stereotypical, just because they re words. [Missing discussion of performance: another case of the uncanny, where judges and other lawyers are used to texts and think of them as static (whatever the real truth of that); performance appears marginal, non-creative even if in the US we recognize performance rights as copyrights instead of neighboring rights.] Solutions? Possibly none, other than turning judges into art critics, which has problems of its own. We can t expect the law to treat mixed media better than the culture at large does. Page 5 of 5