Modernism/modernity

Anyone who studies modernism must wrestle with its persistence—its refusal to concede cleanly to postmodernism, its afterlives in market and archive and seminar, its cultural undeath. Recent extensions in national and international copyright law regimes have increased modernism's legal longevity, too, and with immediately tangible consequences for scholars. Many of us who knew nothing about copyright law ten years ago are now comfortable with legal doctrine and lingo: the idea/expression dichotomy, fair dealing and fair use, derivative works, moral rights, works-for-hire. If, for example, you are a scholar of modernism who seeks to publish in the U.S., you have had to become conversant with the 1998 Sonny Bono Copyright Term Extension Act, which brings unpublished works (letters, diaries, literary manuscripts, lectures, photographs, etc.) under statutory protection for the first time. As if to make things especially difficult for modernist studies, the Bono Act also protects works published between 1923 and 1978 for 95 years from their first publication date. In the lengthening shadow of copyright, at least, the answer to the question "What is modernism?" is "That which is still propertized."

Fittingly, then, Landes and Posner's book is studded with references to modernism. The Waste Land turns up repeatedly as the cardinal example of those "noble plagiarisms of the cultural tradition" (63). Ulysses is described, not a little bizarrely, as a work that copies "only one old work" (216). Shaw's borrowings from Ovid, Yeats's from Shelley, and Kafka's from Kleist and Dickens have a place here, as does "The Sweeniad," a 1957 parody of Eliot by Victor Purcell writing as "Myra Buttle" ("Thirst overtook us, conjured up by Budweisserbrau / On a neon sign: we counted our dollar bills"). These works are brought to testify that "the echoing of the literature of the past has been a common device of modernist literature; one is not just talking about a vanished era of literary conventions" (59). In a chapter entitled "The Legal Protection of Postmodern Art," the authors show how more recent variations on [End Page 511] modernist practices such as parody, pastiche, collage, and burlesque vex copyright's distinction between ideas, which cannot be copyrighted, and expression, which can. What exactly is the "expressive" aspect of a Duchamp ready-made or a Jeff Koons photograph, they ask, such that it can be propertized in isolation from the work's "ideational" or "conceptual" content? Should art that is primarily conceptual rather than expressive be eligible for copyright? Should appropriation art be granted wider-than-usual fair use easements? Here we begin to read one of the unformulated shadow-theses of Landes and Posner's book: that modernism is art whose formal practices unsettle copyright's doctrinal certainties. If copyright term extensions periodically re-propertize modernism, they may do so partly to requite modernism for its immanent critique of copyright's eighteenth-century legal metaphysics.

But however absorbingly symptomatic the book's relationship to modernism, its primary importance lies in its claim to be the first full-length economic analysis of intellectual property law. "Economic analysis" here should be understood as an article of microeconomic faith; this is not a book in dialogue with, for instance, Ronald V. Bettig's Marxist Copyrighting Culture: The Political Economy of Intellectual Property or with Deirdre McCloskey, Martha Woodmansee, and other exponents of the New Economic Criticism.¹ Landes and Posner approach legal doctrines and scenarios "from the standpoint of whether they are efficient in an economic sense and, if not, how they might be changed to make them efficient" (4). And although they nod to non-economic theories of intellectual property (these are tellingly restricted to Locke and Hegel), they express skepticism about the "explanatory power or normative significance" of these theories (5). In the face of that skepticism, they ordain economic analysis as a means to "unify different areas of the law" and "reduce a mind-boggling complex of statutes, amendments, and judicial decisions to coherency" (10...