Category: Art

Cake Fight: SCOTUS Decision in Masterpiece Does Not Turn on Expression

Because I opened my big maw in December when the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, I feel compelled to follow up now that the Court has ruled. In a 7-2 decision, SCOTUS held that the Colorado Commission failed to meet the standard of “neutrality” when considering baker, Jack Phillips’s appeal to his First Amendment right of religious exercise by refusing to create a wedding cake for the marriage of Charlie Craig and Dave Mullins.

Subsequent to this widely-reported story, a Christian activist named William Jack entered three different Colorado bakeries, each time requesting cakes with anti-gay messages. All three bakers were willing to provide the religious designs Jack requested, but all three refused to include writing or specific design elements that directly maligned homosexuals. Jack complained to the Colorado Civil Rights Commission, and the majority opinion of the Supreme Court held that the Commission was correct in upholding the three bakers’ right to refuse Jack’s requests but that, by contrast, the Commission failed to apply the same, neutral reasoning when considering Phillips’s defense for refusing to make a cake based on his beliefs.

As indicated in my first post, this story intrigues me because, as a secularist, I am always interested in religious-freedom cases, and because Phillips’s particular defense entails religious exercise through artistic expression. While I have little patience for religious zealotry—let alone as an excuse for discrimination against anybody—I fully endorse the constitutional obligation that the state must remain neutral about religious beliefs just as it must remain neutral about my non-religious beliefs. Then, assuming we all agree that the state should never compel anyone, including artists, to express themselves, my earlier post engaged in a little thought exercise to consider whether, from a copyright perspective, a court could hypothetically consider Phillips’s cakes to be a form of creative expression.

This was to entertain two thoughts: first, that copyright at least provides the court with a legal rationale for considering “artistic expression”; and second, because I suspect the more this case rests on artistic expression, the narrower its implications should be. My own theory was that if certain cakes can be considered artistic expression, then a) the state can’t compel their making; but b) this case would provide very limited precedent for other proprietors to claim nearly any business activity as religious exercise. Though the first obvious exception would be wedding photographers, whose images are legally “expressive” because they are copyrightable.

Although none of the five written opinions mentions copyright (no surprise there), and the judgment itself does not turn on the issue of expression in a wedding cake, the creativity question does weave in and out of the deliberations. In fact, it is Justice Thomas whose opinion explores Phillips’s free speech claim, and which contains observations that might sound familiar to anyone who has read copyright opinions. For instance, he notes that we recognize non-literal artistic expression, thus:

“To determine whether conduct is sufficiently expressive, the Court asks whether it was ‘intended to be communicative’ and, ‘in context, would reasonably be understood by the viewer to be communicative.’ But a ‘particularized message’ is not required, or else the freedom of speech ‘would never reach the unquestionably shielded painting of Jackson Pollack, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.’”

In this comment, Thomas disagrees with his colleagues’ contrasting the literal, written statements that the three bakers refused to make for Jack with the non-literal, potential for expression in Phillips’s wedding cakes. Further, Thomas writes the following passage, which could almost be an excerpt from an opinion of the 19th or early 20th century considering copyrightability of a new medium:

“Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding.”

Except for the reference to delivery, Thomas’s finding evidence of creative expression in the various aesthetic choices and specific arrangements of materials is doctrinal in copyright law today. So, although the Court’s judgment in Masterpiece does not emphasize the issue of expression in a cake, I think the subject remains a question that has lingering implications with regard to the potential civil rights precedent inherent to this case.

The main point of contention between Justice Gorsuch (concurring) and Justice Ginsburg (dissenting) is whether the cake design actually matters at all. Ginsburg contends that Phillips refused to make a cake (the design of which had not yet been discussed) that he would have made for any wedding other than a same-sex marriage. Hence, he discriminated directly against customers in a protected class, and the cake’s design—artistic or otherwise—had nothing to do with his decision. By contrast, Ginsburg observes that the other three bakers refused to make specific designs, with literal messages, that they would have refused no matter who the customer was—hence, they were not discriminating against Jack for his religious views.

Justice Gorsuch disagrees, contending, “In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending to honor a personal conviction.” I admit that’s a head-scratcher. In my view, Gorsuch’s refusal to see the distinction is where his opinion may provide some precedent for a future party to claim “religious exercise” as a rationale for circumventing public accommodation laws protected by the 14th Amendment. But this would seem to depend considerably on whether Phillips’s cake is in fact expressive despite its being non-literal.

Clearly, the other three bakers scorned the explicit messages Jack had requested and not his religion. In fact, I believe there is no evidence indicating that those three bakers are in any way hostile to Jack’s religion. For all we know, they may even have some denominational kinship with him, but so what? If another atheist asked me to ghost write an article denouncing all religious people as pedophiles, I’d refuse the assignment because the requested content is patently offensive and dumb.

Similarly, if a customer whose religion, sexual orientation, even race or gender, is unknown to the proprietor when he/she enters a cake shop and asks a baker to design a cake with minstrels on it, isn’t the baker allowed to say he doesn’t feel comfortable complying—even without knowing anything about the customer as an individual? Of course he is. The minstrels are a literal form of expression with meaning filled with racist connotations.

By the same token, Phillips is entitled to refuse to design a wedding cake he would consider inartistic, even at the request of the most devout, Bible-thumping, gay-bashing, Christian couple ever to take their vows. Correspondingly, then, Justice Ginsburg’s dissenting opinion is well-reasoned: that Phillips’s refusal even to discuss a design with Craig and Mullins was predicated solely on his knowledge of their sexuality. But that reasoning would appear to be undermined if all of Phillips’s non-literal wedding cakes, even those not yet designed, were assumed to be expressive.

Claiming Artistic Expression

Of course, the harder Phillips clings to his claim of being an artist, the more he must play by the artist’s rules. One of these rules is that once the creator makes a work, he has little control over what the observer will think of the work, least of all whether the observer will recognize anything related to what the artist felt while making it. If an equally-skilled baker made masterful cakes while thinking about the various ways science debunks the Bible, would a reasonable observer be able to tell the difference between the religious cake and the irreligious one?

That’s the part where Phillips is trying have his cake and…y’know. His assertion that his wedding cakes are an artistic expression rooted in his religious faith is perceptible only to him and not to the dispassionate observer of the cake by itself. Thus, when Justice Thomas refers in his opinion to the symbolism of wedding cakes in general, this may be true, but it does not seem relevant to support Phillips’s very narrow claim that each of his wedding cakes is specifically an expression of his religious beliefs. Mindful that Phillips has no doubt made cakes for couples who’ve transgressed against a wide range of Scriptural doctrine, once a work of art is out there, the observers decide what, if anything, it “means.”

Still, as a copyright advocate, I find it hard to completely dismiss Phillips’s claim for the simple reason that copyright itself assumes a metaphysical relationship between the author and the work. If indeed there is some invisible—often hard to define—bond linking the creator’s mind, heart, soul, and body to the final artistic product, then we have to accept the creator’s own understanding of that bond, whether it’s religious, sacrilegious, intellectual, emotional, or even insane.

The unaddressed aspects of this judgment leave us with the paradoxical discussion that the state does not get to determine what constitutes a sincerely held belief, and neither does it get to judge if and when a belief is felt by an artist to be an inspiration for his expression. And other than the statutory confines of copyright law, the state also has no business determining what is and is not “creative expression.” For better or worse, the Court in Masterpiece alluded to but did not answer any of these questions. Though I sincerely doubt society is done asking them.

Photo by topnatthapon

Is the ACCESS Bill Mean-Spirited or Ill-Advised?

Last week, Senator Ron Wyden (D-OR) suddenly—and I do mean suddenly—introduced a bill in the Senate that many of the usual copyright-haters are applauding as an “alternative” to the CLASSICS Act.  It’s hard to decide whether Wyden and whatever narrow constituency he’s serving are using this bill as a political stunt aimed at killing CLASSICS, or if they’re really arrogant enough to believe this bill would not become the legal briar patch the authors of CLASSICS worked hard to avoid for the time being.  In fact, just dropping this bill in the Senate’s lap at the eleventh hour has the potential to upset the entire, multi-stakeholder-negotiated Music Modernization Act omnibus package—the one in which digital platforms like Spotify have a stake—and which passed the full House with a vote of 415-0.

Despite all that, Wyden unilaterally chose to disregard the many years invested by his colleagues in the House Judiciary Committee, the volumes of testimony and negotiations, and the 2011 recommendations of the Copyright Office, to introduce a counter-proposal called the ACCESS to Recordings Act.  The acronym stands for the Accessibility for Curators, Creators, Educators, Scholars, and Society.  Seriously?  I know legislation can get a bit agitprop in its nomenclature, but ACCESS?  The curators, creators, educators, scholars, and society have access!  We’re awash in access!  What we need is fairness in the commercial markets for the artists whose works we access all the time.

Anyway, the bills …

The function of the CLASSICS Act is fairly simple, and for good reason—because the current copyright status of these pre-1972 sound recordings, protected under myriad state laws, is complicated.  For instance in one state, the owner of a physical master recording may be considered the rights holder of the underlying work but not so in another state.  The list of potential variables is long, but suffice to say CLASSICS doesn’t address any of this common law complexity because, as noted in an earlier post, it would be an undertaking lasting many years, possibly achieving nothing.  By contrast, ratification of CLASSICS, as part of the MMA, means these legacy artists get paid immediately, and the relevant digital streaming services achieve legal certainty in a historically gray area that has incubated numerous lawsuits.

CLASSICS leaves the common law protections for these sound recordings in place, along with the existing copyright expiration date for all of these works of February 15, 2067.  The only thing CLASSICS does is to create a new federal protection exclusively for non-interactive (e.g. SiriusXM or Pandora) digital transmissions where these recordings are played all the time but without compensating the artists.  As Robert Levine, reporting for Billboard, writes, “…a few big companies will pay artists and labels a bit more money. That’s it.”

ACCESS is Sham Full Federalization

It is important to keep in mind that the detractors currently attacking CLASSICS cannot point to single constituency whose interests are in any way diminished from the status quo.  Yet,  rather than endorse a simple solution to compensate these relatively contemporary artists through one narrow licensing regime, the anti-copyright forces, including library organizations, have chosen to crash the legislative process with this bill.  ACCESS is a ham-handed version of what these parties really want—full-federalization of pre-72 recordings—but both the timing and substance of the proposal blithely glosses over the complexity of this more ambitious agenda.

For instance, ACCESS presumes to erase all common law copyrights and migrate these sound recordings into their own niche of federal protection with the stroke of a pen.  But as Levine observes in that same Billboard article, this could be interpreted as an unconstitutional “taking,” an obstacle which alone suggests the bill is not designed to pass so much as it is to stymie the MMA until it perhaps expires with the mid-terms.  Additionally, this over-simple proposal to federalize this collection of sound recordings could trigger a festival of litigation among artists and labels over issues pertaining to who owns what, all in reaction to such a radical and ill-conceived change in legal status.

The ACCESS bill proposes different expiration terms than CLASSICS for these works, namely a flat 95 years from publication date, even though the meaning of “publication” under the presiding 1909 Act is a bit of a challenge in itself.  While this proposal would mean more of these works falling into the public domain sooner, this would largely be a symbolic “victory” for the copyright haters providing little value to the general public and varying degrees of unfair treatment to the artists.  (And that’s if the act didn’t cause any other chaos.)

For instance, Don McClean’s “American Pie” would expire one year earlier under ACCESS than under CLASSICS; Smokey Robinson’s “Shop Around” would expire thirteen years earlier; and Artie Shaw’s “Stardust” would expire thirty-one years earlier.  And while all that may make some anti-copyright folks feel good about themselves, it is demonstrably irrelevant to us consumers because we already enjoy anytime-anywhere access to these popular recordings, and copyright term expiration cannot improve on 24/7 availability.  At the same time, it’s worth noting that for many of these recordings which are not commercialized, all the major labels have granted free licenses to the Library of Congress’s National Jukebox to provide free, public access to these works.

Finally, the ACCESS bill contains what can I best describe as a three-year grace period during which a major, corporate user may get away with all the infringement possible of these sound recordings.  The logic is labyrinthine, but it says that a rights holder must notify an alleged infringer no later than six months prior to taking action in a claim; and this limitation lasts for three years after passage of the act.  This provision can only be explained as a favor to the commercial digital broadcasters because, of course, they need Congress to protect them from the musicians.

What About Libraries?

The libraries have applauded the ACCESS bill, though it’s hard to fathom exactly why, other an appetite for futile defeat and antagonism.  While it cannot be denied that full federalization of these sound recordings would benefit libraries and archives, ACCESS will almost surely not achieve this goal.  Consequently, these organizations are either being naïve or callous in their support for Wyden’s tossing a legislative grenade at this late stage of the process.

The specific needs of libraries are entirely separate from the purpose of CLASSICS.  Yet, rather than engage in the normal legislative work needed to obtain the statutory exceptions libraries would like to see, they choose to back a dead horse and, once again, needlessly position themselves in opposition to a group of artists.  Then, as if to exacerbate the decision, they make inaccurate public statements that stretch way beyond their sphere of interest.  For instance, the Library Copyright Alliance published a letter signed by its member library associations, which states:

“While the ACCESS to Recordings Act provides more protections to artists than CLASSICS, it also provides more protections to libraries, archives, and museums.  The federal copyright standard provided by the ACCESS to Recordings Act includes important exceptions that permit digital preservation of pre-1972 sound recordings. These uniform exceptions would enable cultural heritage institutions to engage in critical preservation activities without concern about violating a multiplicity of different state law regimes.”

That first part of about providing “more protections” to artists is not exactly true from the artists’ perspective.  The libraries make this claim because ACCESS would transport all  the exclusive rights—reproduction, performance, derivative works—into federal protection, but the nation’s librarians are in no way qualified to say whether this is better or worse than the state laws currently protecting some of these works, thus implicating the aforementioned “takings” problem in the proposed bill.

As for the libraries, it is true that the common law status of many pre-72 sound recordings can be an obstacle to certain preservation activities, but none of that will be solved by endorsing a makeshift proposal that is almost certainly destined to fail.  Meanwhile, the CLASSICS Act explicitly extends library-focused exceptions that would enable these institutions to make recordings available that are otherwise not found in the commercial market.  (Isn’t that what the public really needs a library or archive to do anyway?)  But rather than win this small provision in CLASSICS today and collaborate on the more complex issues tomorrow, the library groups are going to endorse a fatally flawed bill and persist in their adversarial relationship with artists and authors for no imaginable reason.

What’s Really Behind This?

The ACCESS proposal cannot help but implicate the Gordian issues that legal experts, artists, and legislators sought to at least postpone with the narrowly-tailored CLASSICS Act.  It seems reasonable, therefore, to assume that Senator Wyden and his bill’s supporters know this to be the case and that the introduction of ACCESS is designed solely to run out the clock on the Music Modernization Act. Not only would this trash years of work by a lot of people, but there is not a single provision in the omnibus package which would negatively affect the parties suddenly endorsing ACCESS.  Hence, one can only conclude that this belated proposal is either mean-spirited or ill-advised.  Though it is arguably a bit of both.

Jeers of a Clone: Doctorow Lies About the CLASSICS Act

If Cory Doctorow writes an article about copyright, “it’s only there trying to fool the public.”

For instance, his recent missive about the CLASSICS Act in the venerable Boing Boing (which I assume is the sound inside its editors’ heads) is a fabrication rich in offensive overtones. Not only does he repeat the fiction that this bill extends copyright terms for pre-1972 sound recordings, but he actually invents a legislative process out of thin air.

As explained in more detail in this post, the CLASSICS Act is relatively narrow legislation that would allow musical artists who recorded songs before February 15, 1972—many of them are still living—to receive royalties in the current market for certain types of digital broadcast performances.  Quite simply, an artist with a song recorded after that date is eligible for royalties (e.g. from satellite radio), but the same artist with a song recorded before that date is ineligible for royalties for the same use.  In testimony supporting CLASSICS before the Senate Judiciary Committee, singer/songwriter Smokey Robinson presented the following:

“…some digital radio company lawyers found a loophole.  Those corporate lawyers asked, ‘What if we don’t pay for classic pre-72 recordings under the new federal license because they are covered under state law, and then what if we argued state laws are too old to cover digital radio?’  Then, they figured, they could profit off some of the most valuable recordings of all time, paying legacy artists nothing at all.”

Because a good story needs a good villain, Doctorow enigmatically cast Senator Orrin Hatch in this role and reported that the senator is personally responsible for combining CLASSICS with the otherwise-popular mechanical licensing bill known as the Music Modernization Act. This is imaginative to the point of incoherence. CLASSICS was in fact merged with the MMA and the AMP Act under the aegis of the House Judiciary Committee to form an omnibus music copyright bill, which passed the full House in April with an extraordinary tally of 415 to 0. It then moved to the Senate where it acquired 17 bi-partisan co-sponsors.  If for no other reason than the fact that Hatch is a member of the wrong chamber, he had nothing to do with “adding” CLASSICS to the MMA.

Perhaps Doctorow needs to review the whole House-to-Senate legislative process, but nearly all copyright legislation begins in the House Judiciary Committee.  Meanwhile, Cory’s style of blatant propagandism is especially obnoxious coming from pundits who imagine themselves champions of democratic principles in the digital age.  By “Hatching” this bogus narrative, he obfuscates the real process whereby a bill like CLASSICS emerged after several years worth of hearings held in multiple cities, and after gathering testimony from a variety of stakeholders. Even a rudimentary knowledge of Congress belies the absurdity of claiming that Senator Hatch personally—not to mention belatedly—has been pulling strings on Capitol Hill for his pals Smokey Robinson and Dionne Warwick.

In fact, to emphasize Doctorow’s hypocrisy, readers might notice that the URL for his “article” doesn’t even mention the legislation but is simply titled “orrin-fucking-hatch.” Why? Because Boing Boing isn’t a source of information.  It’s a click-bait site using SEO as a fly-catcher to grab readers already opposed to Senator Hatch on policy unrelated to music copyright.  I don’t have much in common with the senator’s views myself, but Doctorow arrogantly piling garbage on this bonfire of bullshit should be disabused of any notion that he’s doing the Republic any favors.

“The records of the 50s and 60s aren’t called ‘classics’ because of their age.  They’re called classics because of their greatness.  They still resonate today.  They add value to our lives and bring people together.  They define America.”  — Smokey Robinson —

In Doctorow’s version of the CLASSICS Act tale, not only is a senator authoring bills in the House, but he is allegedly also extending copyright to 144 years for all pre-1972 sound recordings.  (This is like saying Cory Doctorow is entirely responsible for that alien attack in Poughkeepsie.)  As addressed in my earlier post—and in considerable detail by Terry Hart on Copyhype—CLASSICS actually leaves in place the same 2067 expiration date that exists right now for this body of sound recordings.

Nothing in the public domain is being re-protected, and no new ambiguity is being introduced that will adversely affect librarians and archivists.  To the contrary, CLASSICS would serve to clarify important protections for these institutions that only exist in the federal statute but which do not apply under state law.

Beyond the key facts being misrepresented, there is another dimension to the recent assault on this bill that is hard to overlook.  Many of the artists who stand to benefit from CLASSICS happen to be people of color because the period between the 50s and the 70s is the same era when artists of color gained wider mainstream acceptance in the market. (Hell, if this were just the Ray Charles Act alone, it would be worth considering.)

When I think about the indispensable music created by artists like Smokey Robinson, The Supremes, Otis Redding, Marvin Gaye et al, and then contrast all those beautiful sounds against the whinging noise of Doctorow and his pals at EFF and Public Knowledge, the duplicity of these privileged, ivory-tower “activists” takes on a whole new shade of offensiveness.  It is truly fascinating to see Doctorow and his friends insist that the quirky history of sound recording copyrights must continue to disenfranchise this particular group of artists from a share in the revenue generated by certain corporations broadcasting their music.

That’s some bizarre logic coming from the same people who love to repeat the refrain that music copyright is irrelevant because the labels “always screw artists anyway.”  Not only is this talking point an oversimplified cliché, but in this context, it’s tantamount to calling the individual artists who have endorsed CLASSICS a bunch of liars about their own careers. Moreover, the critics who portray this bill as just another “gift to labels” fail to mention that the royalty split under the §114 statutory license is 50% to the recording owner, 45% to featured artists, and 2.5% each to non-featured vocalists and non-featured musicians.

I don’t like to insert race where it doesn’t belong, but in this case, the optics are little too blatant to ignore. There are plenty of opportunities for opinion, debate, and theory on the subject of copyright law, but here’s the meat-and-potatoes of the fairly uncomplicated CLASSICS Act as Robinson put it:

“Now, I fully recognize I have been blessed and I’ve been lucky. But for many legacy musicians and their families, this issue is far more urgent. I’m 78 years young, but many artists I came up with are unable to tour or make appearances or record new material to earn a living. They should be able to rely on income from the recordings used by digital radio companies to attract listeners and earn profits. For so many, especially at this point in their careers, this is how they make ends meet. It’s how they pay their mortgage and their medical bills. It’s how they feed their families.”

Are Doctorow and his entitled entourage really comfortable saying Robinson is just wrong? And then further twist this improbable narrative by introducing Orrin Hatch as the legislative knife in Smokey’s hand? I think Cory and Friends should find something else to boing-boing about, and anyone with a basic sense of fairness should “second that emotion.”