Get To Know 23-24 RSM Visiting Scholar: Madhavi Sunder
Madhavi Sunder is a widely published and influential scholar of law and culture. She is the Frank Sherry Professor of Intellectual Property Law and Associate Dean for International and Graduate Programs at Georgetown University Law Center. Her interdisciplinary scholarship ranges from cultural appropriation to women’s human rights, art law, the experience economy, and patents of and access to medicines. She is a 2023-2024 Berkman Klein Center Fellow.
What themes from your previous work will you be bringing to BKC?
I think one of the key themes in my work for the past twenty-five years, which I will continue to push forward, is to think about not only the importance of free culture, but also looking critically at the expansion of intellectual property and permissions culture. In fact, the most recent decision by the US Supreme Court in Warhol v. Goldsmith basically cuts back on the fair use provision in copyright law. The implication of this decision in terms of artists working in areas, including visual art and music, is that they will increasingly need to seek permission to use materials that are created by earlier artists and maybe less comfortably rely on the fair use provision to allow them to create by taking the materials that they want without having to ask, and certainly without having to pay.
This rise of the permissions culture is a theme, and it is an important one to recognize. Many scholars, of course, have then sought to push the importance of free culture and not having as many locks on knowledge and information. I am sympathetic to that work. At the same time, my work stands in contrast to many other intellectual property law scholars in that I've also continually highlighted the backdrop of inequality of power and knowledge against which cultural flows and exchanges take place.
The theme of my work has long been free culture that is also fair culture that also recognizes the diverse contributions of traditionally disempowered people to our knowledge economy, and that helps to recognize them as authors and recognize intellectual property rights in their innovation. This is the theme I’m going to be bringing [to BKC], and I'm going to be looking at it in the specific context of cultural appropriation claims.
Cultural appropriation has become quite a popular phrase these days. Could you discuss it in an intellectual property context?
There was the famous case the Marvin Gaye estate brought against Pharrell Williams and Robin Thicke for their "Blurred Lines" song, alleging that they copied the great work of Marvin Gaye. The Ninth Circuit Court of Appeals agreed that this was copying. What was revolutionary about the case is that it was one of the first times that rhythm and the overall sound and feel of the song were protected, not just the melody and the written notation of the song. Many scholars decried this as the end of music and an overreach of intellectual property law and of copyright law at the same time.
Social justice scholars said, in fact, this is fair because too often for creators of color, the overall sound and feel, their percussion, the rhythm, the innovation that they brought was written out of copyright law in terms of protection. Similarly, I argue that the ethics of cultural appropriation underlie the recent Warhol decision. In fact, [Justice] Sotomayor's majority decision points out that Ms. Goldsmith was a vanguard woman photographer, one of the earliest women in the field of photographing rock stars and celebrities, and that she was the little guy in this case against the iconic appropriation artist, Andy Warhol.
I was reading through your commentaries on the Warhol case and saw you came out on the other side of it along with Justice Kagan. I'm wondering how you approach finding a balance between ethics, in terms of giving ownership and appreciation where it's due, and keeping fair use open enough where we can still prosper and advance.
That's a great question. For me, the transformational aspect of Andy Warhol's work was critically important, and this idea that every—even unforeseeable—transformation belongs to the original creator is a dangerous idea.
I think partly it was the specific facts of that case. I think that there was a mistake made that Warhol did have a license to do the original lithograph for Vanity Fair, and in order to make one for Vanity Fair, he ended up making sixteen and said, “You choose one.” In the meantime, he died, Prince died, and now those sixteen that he had made for a different purpose in the 1980s are worth so much money. I think that fair use should absolutely step in when there's this kind of mistake.
It's still really a big question mark. The Supreme Court's majority opinion said that it would be fine for the Warhol Estate to show these images in an Andy Warhol museum and in a nonprofit manner, but the sale of the art is a bit questionable. I think that there are a lot of competing issues in that case. This is going be a job for me in the book [I’m writing] to explain why I ended up more on the [Justice] Kagan side. Do I wish that [Justice] Kagan in that dissent had given some credit to some of these issues around unfair appropriation of disempowered artists? Yes, I do.
I also wish that either of the opinions would've taken account of the really important issues coming down the pike around AI and what right do all visual artists have to stop AI companies from copying their work to promote the machine learning of artificial intelligence.
Interviewer
Elif Hamutcu is a J.D. candidate at Columbia Law School. In the summer of 2023, she interned at the Berkman Klein Center, where she worked on the Privacy Tools Project.