'Copyright and Cultural Capital' by Xiyin Tang in (2013) Rutgers Law Review offers an - to my mind unpersuasive - analysis of copyright and class.
explores the oft-ignored relationship between copyright law and class stratification. Copyright law widens and perpetuates the gulf between the elite and the masses in three ways. First, within copyright doctrine, the values of originality, lone artistic creation, and a fetishism of the original over the copy (evident in the Visual Artists Rights Act of 1990) align with the American high-brow's claim to avant-garde newness, utter originality, and the demoted status of art forms dependent on copies (chromolithography, photography, industrial arts). Second, copyright's legal remedies — including control over rote copying and the derivative works right — facilitate the high-brow's obsession with limited production and against appropriation ("watering down") by the middle brow and low brow. Third, a copyright holder’s monopoly power puts a high price on cultural fluency that may be impossible to achieve for those in emerging economies and the less affluent. In this way, copyright law incorporates, perpetuates, and exacerbates the cultural and capitalist class divide. As the late '80s and early '90s gave way to what I term a reverse-culturalization, or, the high-brow appropriating from the low-brow and making it high art, the relevance of copyright to the domestic artistic elite has diminished. Instead, copyright is now being deployed by big Hollywood studios and the recording industry as a means of denying equal access to knowledge in foreign countries. If the sociologist Pierre Bourdieu had written many years ago that it is only the rich, upper-class who can afford to engage in limited production or the coded literary language of high-brow culture, we are now seeing that adage playing itself out on the global arena in relation to culture as a whole — with copyright as its means of separating the cultural elite from the culturally less affluent.Tang concludes -
Much of this Article has focused on the seemingly illogical fact that copyright law, almost always viewed as a facilitator of greed by Hollywood and the recording industries, can also serve a much “loftier” purpose: ensuring the artistic integrity of a work of “high” art. Ironically, then, the profit-via-proliferation model of copyright is unimportant to high artists (if indeed the relationship between profit-making and cultural status is inverse as Bourdieu claimed) — it is the control aspect that they care about. For if having dominion over the right to make copies can result in more profits (which was what the founding fathers contemplated when they drafted the Copyright Clause), it could also allow an author to choose not to make copies at all, or to limit them. This certainly is the method that Macdonald would champion — and if the masscults below printed and distributed copies of his beloved Partisan Review, he would be incensed not because he was denied the right to make money off those copies—but because those copies have diluted the sacred highbrow status of Partisan’s small circulation.
The passage of the Visual Artists Rights Act of 1990 a few years ago as a subset of American copyright law lends new credence to the idea that Macdonald’s vision of a lofty art unmarred by others’ uncultured hands continues to prevail today. VARA, after all, is premised on the belief that the artwork is perfect as the artist intended it, and symbolizes the ultimate form of despotic dominion and control by preventing any modification, alteration, or mutilation of an artwork altogether (leading some scholars to call it “elitist”). Yet copyright law today certainly serves a much more ambivalent relationship to the high-art artist: it both protects the purity of an artist’s vision as it also antagonizes the new form of appropriation art. But whereas the American highbrow will undoubtedly continue to exist via an entire network of cultural vetting—critics, museums, “highbrow” publications—the American masscult will likely continue to wage its war against developing countries in a game where money for cultural goods represents ransom in return for becoming a fully-formed, global citizen—not just of the purse, but in the deeper sense of the enriched mind.
Bourdieu was unique in recognizing that cultural power “is closely intertwined with—but not reducible to — economic and political power,” and thus “serves a legitimating function” unique and apart from the economic and political. In many ways, cultural capital presents the greatest barrier to a true equality vision of democracy because it works in less obvious, more invidious, ways than political and economic power. As political speech is still the core First Amendment protection and most cultural goods are locked down by copyright (with the blessing of the Court), our willingness to demote cultural fluency as somehow less important toward the makings of a fully participatory citizen means that methods of gate-keeping in preserving the high-brow or even masscult culture can continue to exist unabated. As emerging economies begin to burgeon with newly-minted wealth and conspicuous consumption, the elite upper-class can rely on other methods of separating the vulgar rich from the truly so: via knowledge itself.
In recent years, there has been a proliferation of defenses of humanism — that is, the pursuit of knowledge for its own sake and not as a means toward attaining more wealth or social status — aided, no doubt, by recession-era concerns about the lack of jobs for liberal-arts graduates. Such defenses, most commonly published in Macdonald’s then-favored, probably still-favored publication The New Yorker, evinces a beautiful desire about the will toward human enrichment absent some grotesque economic motive, divorced from even the more democratic ideal of increasing one’s share of power in a world where power is unequally distributed. Such humanist pleas are oftentimes compelling, soulful, and beautiful, such as when New Yorker staff writer Adam Gopnik wrote:
What really is lost [in the emphasis on status and power] is the horizon of the good life that is included in what we have called, since the Renaissance—humanism—the belief that, while our lives may be devoted to happiness, they're impoverished without an idea of happiness deeper than mere property-bound prosperity. The special virtue of freedom is not that it makes you richer and more powerful but that it gives you more time to understand what it means to be alive.
We are aptly moved by such beliefs in the beauty of knowledge itself, yet what is missing from such humanist accounts is the idea that many simply cannot afford to dwell on such lofty endeavors. Humanism—the belief that in art, literature, music, and film resides a certain kind of truth unparalleled in all other economic-bound pursuits, carries with it the Renaissance idea of the bourgeoisie—rich enough to idle in salons, free enough to forsake the vulgarities of money. But not everyone may be so lucky. Capitalism and culture are necessarily intertwined.