ATRIP Intellectual Property series
Edited by Graeme B. Dinwoodie
Chapter 9: Transcoding and transformation: A cultural studies approach to copyright fair use doctrine
In the iconic essay The Death of the Author, Roland Barthes argues that ‘a text’s unity lies not in its origin but in its destination’ and that ‘the birth of the reader must be at the cost of the death of the Author’. Barthes’ work, controversial at the time of publication with its assault on modernity and the primacy of authorial control, has nonetheless laid the groundwork for an important body of scholarship on interpretive communities. Interdisciplinary legal writings, especially in the area of intellectual property and personality rights, have also actively engaged such themes in recent years. For example, Nathaniel Noda contends that copyright law ought to ‘keep pace with changing times and practices by recognizing that an author implicitly cedes certain interpretive rights to the general public when he or she introduces a work into the stream of public discourse’. Noda’s thesis on the interpretive rights of the reader – or more generally the public that is the ultimate destination of an author’s creative work – implicitly draws on Barthes’ earlier ideas. This chapter focuses on the challenges that contemporary art – in particular appropriation art – faces from copyright owners who object to their creative works being used by secondary artists. Appropriation art, as a genre of contemporary art, is often an ideological critique that takes or hijacks ‘dominant words and images to create insubordinate, counter messages’.
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