Brian Soucek on Aesthetic Judgment in Law

As noted in my last post, one of the most quoted lines in copyright law is from Justice Holmes's 1903 opinion in Bleistein: "It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations." This aesthetic neutrality principle has found purchase far beyond copyright law. But in a compelling new article, Aesthetic Judgment in Law, Professor Brian Soucek challenges this dogma: "Almost no one thinks the government should decide what counts as art or what has aesthetic value. But the government often does so, and often, it should." Soucek's article may have flown under the radar for most IP scholars because he does not typically focus on copyright law, but it is well worth a look.Soucek's first point is that despite the "widespread aversion to aesthetic judgment" by government decisionmakers, such judgments are ubiquitous both at the "retail"…

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