Sometimes it’s hard to turn lemons into lemonade. For better or worse, Amy Coney Barrett has replaced Justice Ginsburg on the Supreme Court, and the left is depressed. Justices Gorsuch and Kavanaugh were bad enough. Barrett cements a conservative majority likely to last for decades. The lamp of the Warren Court has gone out some time ago, and we shall not see it lit again in our lifetime. But perhaps we can still ask how Justice Barrett will affect the arts. After all, artists and the arts sector have peculiar interests, and political changes often have unpredictable effects.
Unfortunately, it’s hard to know how Barrett will affect much of anything. As a law professor, she wrote almost exclusively about abstract questions of constitutional law. And as a judge, she wrote narrow decisions, and avoided expressing personal opinions.
Of course, she had no choice. If you want to get nominated for the Supreme Court, you better not be controversial. So, no one knows for sure how she will rule on any particular issues, by design. Many people are pretty confident she is a vote against abortion rights, but even there, it’s unclear whether she will actually vote to reverse Roe v. Wade, or just narrow it even further, like her predecessors.
One thing we know for sure is that Barrett considers herself a textualist. In other words, she tries to interpret statutes in light of their text alone, rather than what they were intended to accomplish. Textualists argue that the public is entitled to rely on what a statute actually says, rather than what legislators wanted. After all, different legislators may have wanted different things, and the text of the statute they enacted reflects the compromises they made.
While many legal scholars argue that textualism is impossible, because language only has meaning in context, it still dominates the judiciary. As Justice Kagan famously observed in her 2015 Scalia Lecture at Harvard Law School, “We are all textualists, now.” In any case, textualism can produce both conservative and liberal results, depending on the circumstances and application. Sometimes, it means denying a plaintiff their day in court, as in Ledbetter v. Goodyear Tire & Rubber Co. (2007), where the Court held that the literal language of the statute precluded a sex discrimination claim. But other times, it extends protection to a previously unrecognized group, as in Bostock v. Clayton County (2020), where the Court held that protections against sex discrimination apply to transgender people. Hopefully, Barrett’s version of textualism is generous to the disadvantaged.
While it’s impossible to know for sure how Barrett will vote in particular cases, she is almost certain to affect the Court’s copyright jurisprudence, if only because she is unlikely to be as pro-copyright as Ginsburg. Obviously, copyright is an area of law especially salient to artists, because they are generally copyright owners. Copyright protects original works of authorship as soon as they are created, and vests in the author. Artists can use copyright to control the reproduction of their works, and many artists sell commercial reproductions.
Ginsburg was notoriously friendly to copyright owners. Among other things, she wrote the Court’s opinion in Eldred v. Ashcroft (2003), upholding Congress’s decision to retroactively extend the copyright term by 20 years, and in Golan v. Holder (2012), holding that Congress can remove works from the public domain. She also dissented in Kirtsaeng v. John Wiley & Sons, Inc. (2013), arguing that publishers should be able to prohibit the importation of used books, and in Georgia v. Public.Resource.Org, Inc. (2019), arguing that copyright should protect annotations to state legal codes.
Anyway, it’s tempting to assume that more copyright is good for artists and less copyright is bad. But it isn’t so simple. Sure, many artists rely on copyright to generate revenue, but many others use copyrighted works to create their art. After all, art has always been all about copying. Artists learn by copying and copy in order to create something new. Collage, pop art, appropriation art, you name it, all technically infringing. Or rather, as Picasso observed, “Good artists borrow, great artists steal.” Even better if he “stole” the line, Pablo Picasso was always an asshole. It’s part of his appeal.
If Barrett means a subtle relaxation of copyright protection, it might actually be good for artists. As scholars such as Amy Adler have observed, art doesn’t really need copyright anyway. Most artists sell unique objects, not reproductions. And the ones who sell reproductions still have a market for “authentic” copies. While few artists would have chosen Barrett, maybe there’s a silver lining on copyright? It’s the best I can do.