In this Article the author contends that judges should be conscious of aesthetics when deciding copyright cases. However, given the inherent ambiguity of aesthetics and the supposedly objective rules and principles that govern judicial opinions, courts implicitly assume a sharp divide between aesthetic reasoning and legal reasoning. Additionally, because aesthetic choices by judges could potentially be deemed government censorship, the two are further considered incompatible. The author argues, however, that this distinction is illusory in that a truly open-minded copyright jurisprudence requires explicit awareness of aesthetics. This argument is supported firstly by a description of four major movements from aesthetic theory, which represent some of our culture’s most thoughtful observations about art and its meaning. Secondly, case analyses from three major doctrines in copyright law illustrate how legal reasoning appears to avoid aesthetic issues in copyright. Lastly, the Article argues for explicit consciousness of aesthetics as the best way to treat varying aesthetic viewpoints fairly.
Alfred C. Yen. "Copyright Opinions and Aesthetic Theory." Southern California Law Review 71, (1998): 247-302.
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