Archive for November, 2009

“originality” = ?

Justice Joseph Story in the 1845 case of Emerson v. Davies writes what Oren Bracha calls a “vivid anti-romantic manifesto”:

“In truth, in literature, in science and in art, there are, and can be, few, if any things, which, in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known and used and understood by others. No man writes exclusively from his own thoughts, unaided and uninstructed by the thoughts of others. The thoughts of every man are, more or less, a combination of what other men have thought and expressed, although they may be modified, exalted, or improved by his own genius or reflection. If no book could be the subject of copy-right which was not new and original in the elements of which it is composed, there could be no ground for any copy-right in modern times, and we should be obliged to ascend very high, even in antiquity, to find a work entitled to such eminence.”

On the one hand, I’m inclined to agree.  In my own practice of photography, I’m inevitably impacted by what I see in the photos of others and this in turn shapes my photos.  This is how we learn and improve- the more we see, the broader our vision, the larger our palette of colors becomes.

Yet on the other hand, does this post-structuralist view of art not create a dangerously low threshold for copyright?  Does this mean all works, regardless of how uncreative and aesthetically unpleasing they might be, are capable of copyright protection? I as a photographer obviously would love a strong copyright protection for my photos- even for the photos that may not appear as creative or beautiful to the eye of another. But at the same time, giving me a copyright would limit the distribution of the work and the use of the work by others, thereby inhibiting free speech and information. Does this not run counter to the encouragement of learning and the Constitution’s promotion of the flourishing and free flow of the arts and sciences?




Oren Bracha, “The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright,” 118 Yale Law Journal 186 (2008).

Emerson v. Davies, 8 F. Cas. 615 (Story, Circuit Justice, C.C.D. Mass. 1845) (No. 4436).

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seeking the light

have had bon iver’s “for emma” stuck in my head for much of the day

so apropos: saw death on a sunny snow
for every life, forgo the parable
seek the light, my knees are cold

running home, running home, running home, running home.

i toured the light; so many foreign roads for emma,
forever ago.

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hi all!  i’m now on facebook, you can become a fan there =)

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cardiff, wales

wales millenium centre

cardiff bay


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camden market

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stonehenge & avebury



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sunset at hyde park


swimming into the sunset



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