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Stray OWH Notes

My time, of late, has been devoted to completing a study of the rise of the cultural worker in the
United States. As I return, very happily, to blogging here, it seems natural to begin by thinking
aloud a bit about this work. What follows may be a little bit free-associative, but I hope that does
not impose too onerous a burden on the reader.
The central wager of my study is that the history of the cultural worker is best understood as a
process that unfolded in tandem with the history of American intellectual property (IP) law.
Within critical IP scholarship, the story of the emergence of the cultural worker is sometimes
obscured by the roughly simultaneousand, unquestionably, more luridly gothicdevelopment:
the death of the author announced by Michel Foucault in the 1960s.[1] I have become
increasingly convinced that the rise of the cultural worker and the death of the author are two
sides of a single phenomenon. As the legal scholar Catherine Fisk insists, authors did not exactly
die: they got jobs. Thereafter, the identity of the solitary author was subsumed into the
personhood of his or her corporate employer, in the manner of science fictions company-man
dystopias.[2] We might say that the cultural worker is the form in which the author persisted, in
a sort of life-after-death. It is this key developmentthe author getting a job, and mutating
into the cultural workerthat we have been trying to track.[3]
Locating points of origin is difficult. It might make more sense to begin at the end?
One appealing ending is the1973 Supreme Court ruling in the copyright case of Goldstein v.
California (the discussion here does not require a review of the details of the case, which
concerned the recording industry and the sale of pirated copies of LPs). In his decision for the
Supreme Courts majority in Goldstein, Justice Burger interpreted federal copyright law as
covering not simply the original compositions of an individual author, but creative work by
any originator. Copyright law, Burger insisted, protects any physical rendering of the fruits of
creative, intellectual, or aesthetic labor.[4]
Setting aside any reservations we might have about the accuracy of Burgers account of the
origins of copyright (whether legal realist or originalist, Supreme Court rulings are rarely
sources of good historiographical analysis; that is neither here nor there), two things about his
ruling in Goldstein strike us as intriguing.
First, we should note that for Burger, apparently, creative, intellectual, or aesthetic labor is a
straightforwardly legible concept. Writing the history of the cultural worker, we are often
plagued with doubtsare we actually studying some tangible something? Why is it so hard to
pin down what we mean by cultural worker? Goldstein v. California provides some relief; in a
pinch we might saywe mean by cultural worker what Justice Burger did.
We think that merits study, because in many previous moments, the formulation creative,
intellectual, or aesthetic labor would not have made any sense. For example, students of
German labor history know that Protestant ideologies of work famously conceptualized the
imperative to toil as divine punishmentthe worker suffered, and his patience with the necessity
and inevitability of this suffering was a condition of membership in the ethical community.

Nothing could be more foreign to the world of work, in this figuration, than the pleasures (and
even the agonies) of aiesthesis and Romantic creativity.
The history of the United States can be interpreted as always having been uniquely open, at least
in theory, to the idea of cultural work. One finds, in the United States, Lockean justifications for
the worthiness of cultural work, within the capitalist ideology of improvement, beginning in
the late eighteenth century, and, at about the same time, Herderian briefs for government support
of cultural workers as foot soldiers of national genius. These were crucial inspirations for the
1790 Copyright Act. At the same time, within republican ideology, Burgers concretization of
cultural work would certainly have appeared as a demonic aberration. So, we still need to
account for the process whereby Burgers formulation began to be thinkable, and then to register
as common sense.
Second, Burger ties creative, intellectual, or aesthetic labor to the ontological category of any
physical rendering. Here, we see the refinement of an aesthetic relativism in intellectual
property law that was quite shocking in its initial presentation by Oliver Wendell Holmes, Jr. in
the early twentieth century (and which remained controversial during the many crises of What
is Art? that have punctuated the modern era). What Burger evokes here is a new world in which
most aesthetic and intellectual activity takes the form of mass-produced commodities brought
into being by professional cultural workers: men and women who are highly skilled, organized in
complex division of labor, and often represented by labor unions.
The radical novelty of all of thisat the level of the cultural objectshould be emphasized.
Popular culture, of course, was not new. Colonial America was heir to a long tradition of
performing artsthe little tradition of Early Modern Europe that Peter Burke describes so
vividlybut this activity was largely seen as marginal to economic life, if not dangerously
subversive of it (thus, the thousands of religious tracts of the eighteenth century condemning
actors and theaters). We know, from the classic studies of the history of American media of the
gradual development, after the advent of the Jacksonian Era, of American theatrical culture,
newspapers, and reprinted novels, as well as the beginnings of exotic new technologies like
telegraphy and photography. The literature on P.T. Barnum, popular melodrama, and minstrelsy
reminds us of the vexed economies of attraction and repulsion, voyeurism and inattention,
uniquely pervasive during the years when the US Congress imposed a gag rule upon itself to
suppress acknowledgment of the nations monstrous crimes vis--vis African Americans (and
embraced a different set of discursive ruses to paper over the genocidal campaigns of violence
against Native Americans, and later bloodthirsty adventures in the Western Hemisphere).
We recall that after the Civil War, improvements in printing and the production of cheap paper,
as well as the spread of the railroad, led to an expansion in the market for mass-produced texts,
in tandem with the new vogue for the piano, the attending growth of the market in sheet music,
and the rise of lithographic color printing, proto-cinematic cultures of attraction and sensation,
and the vaudeville innovations of Klaw and Erlanger. Scholars from Hillel Schwartz to Lisa
Gitelman help us understand that these ventures were part of a larger Victorian Era culture of
the copy, in which various technologies of reproduction and doublingfrom speed-writing
stenographic methods to musical automatonswere endlessly tinkered with and demonstrated.

But, as readers of Walter Benjamins essays on cultural commodities know well, something
decisive changed with the technologies of mass reproduction. For Benjamin, humans sense of
stability and security in the world has everything to do with the nature of the objects that
surround us. Artificial building materials, in this analysis, are not simply innovations that serve a
technological end: they are phenomenologically meaningful. If we were, suddenly, to begin
importing all of our furniture from an alien race living on the planet Jupiter, the texture of
everyday life and consciousness would be completely alteredeven if the alien furniture
resembled, in every detail, the futons and loveseats we buy at Ikea. Something like this
hypothetical shift took place with the advent of the mass-reproduced cultural commodity,
Benjamin argues, and we have still not begun to sort out the consequences.
Jacques Rancire has famously questioned Benjamins narration of this process: does Benjamin
not make too much of a fetish of technology? Arent Benjamins observations true of the entire
post-Kantian aesthetic formation, and not at all restricted to the commercialization of popular
culture in the twentieth century? (Perhaps, at the heart of Rancires critique lies a Derridean
objection: doesnt Benjamin rely on a certain nostalgic strategy that insists that once there were
real objects, and now there are only fake ones?) Rancires rejoinders are worth taking seriously.
I think they can be satisfactorily answered by turning to the work of Bernard Stiegler, a
philosopher who writes extensively about the philosophy of technology and objects (in many
places, Stieglers essays call to mind the early texts of Lewis Mumford).
Stiegler is not associated with the movement called Object-Oriented Ontology, as far as I
know, but he does work (in a manner that appeals to me, at least, quite a lot more than the
various strains of the OOO project) on the ontology of objects. In his writing on the rise of mass
culture and photography, Stiegler presents the idea of the mnemo-technical object (a similar
idea is present in the work of Friedrich Kittler and Paul Connerton): the tool that possesses
memory, the extension of the human hand that works to amplify our powers by helping us to
remember. (In such a perspective, technologies would include laws and habits, as well as
material inventions, as well as a range of subjective strategies).
Over time, the accumulation of this mnemo-technical apparatus becomes, in and of itself,
ontologically significantconfronting us, often, as a Heideggerian HAL 9000, a terrifying
standing reserve. While this analytic thrust does not appeal to me, it does strike me that there is
a route through Stieglers analysis to a happier synthesis. I am thinking of Lewis Gordons
repurposing of the work of the existential phenomenologists Natanson and Schutz in order to
read Frantz Fanon as a prophet of anonymitythe ordinary mnemo-technical functioning of
the everyday world along the lines of the mailing of a letter at the post officewhich is precisely
what racism and colonialism deny to racially marked subjects. In my research, I pursue this lead
by focusing on anonymity and authorship in the case of James Weldon Johnson, who published
his Autobiography of An Ex-Colored Man anonymously, although the African American press
often referred to Johnson as its author in the years before it was republished, in 1927, under
Johnsons own name. It is my hunch that cultural work, in general, bears an important relation to
anonymity, thus configuredand that this might be understood as a radical and utopian
dimension of the aesthetics of popular culture.

To make such an argument requires concerted attention to the niceties of ontology. Stiegler is
especially helpful here in his discussion of photography. Following the path laid out in Roland
Barthess Camera Lucida, Stiegler insists that the mnemo-technical innovations in the
photographic mode are ontologically distinct from other media of preservation and storage.
Photographs capture facts thathowever culturally constructedstrike us as more real, and
more connected to questions of being, finitude, and death, than can be accurately said of prior
technologies (with the possible exception of the Byzantine religious relic, to which photographs
are often compared). The this happened of the photograph becomes paradigmatic of the
popular arts in the twentieth century. That, in turn had significant consequences.
It sometimes seems to me that we jump too quickly from Benjamins discussion of the newness
of the mass-reproducible as material objects to the implications of those objects for social
relations: what needs to be maintained, dialectically, is the uncanny character of these objects as
objects, and the ways in which these objects served to alter the world into one in which the
existence of such things was possible. Following Benjamins lead, mediated by Stiegler, we
might read Burger in Goldstein v. California as providing an inventory of a new world of objects,
produced by new forms of labor, that immediately began to naturalize themselvesso
effectively, in fact, that for those of us who grew up consuming media produced under this
industrial regime it is hard to imagine that it ever was otherwise.
One of the challenges that I am going to try to take up in my dissertation (and I hope to work
some of this out here) is whether all of this reflection on objects and ontology can be
meaningfully incorporated into a historical study, at the level of aesthetic analysis. Historians
often perform close readings of texts to draw out representational and affective content, to map
connections between events and discourses, to illustrate the historicity of a certain mood or
mindset. I have been wondering whether there is a much more materialist way of reading
aesthetic texts, as sites of tension wherein tools and relations are negotiated, and in which the
story of constituent objects subsumes the story of some one constituent subject. Intriguingly, this
kind of reading might provide a bridge between realismthe metaphysical doctrine that insists
that we can know something about objects-in-themselvesand realismthe literary cult of the
everydayconverge. A thread we hope to take up in the next installment.

[1] Much of the best research on the history of IP reflects on the historical contingency and situatedness of the very
idea of the author, and seeks to locate in legal discourse the sources of Romantic investments in the idea of the
creative genius who bears a paternal or proprietary relationship to that equally ambiguous and historically contingent
object, the work of art. IP law and modern literature are both products, Jaszi insists, of a quite radical
reconceptualization of the creative process deriving from the heroic self-presentation of Romantic poets. See
Peter Jaszi and Martha Woodmansee, The Construction of Authorship: Textual Appropriation in Law and
Literature (Durham: Duke University Press, 1994); Mario Biagioli, Peter Jaszi, and Martha Woodmansee, Making
and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective (Chicago: University of
Chicago Press, 2011); Martha Woodmansee, The Author, Art, and the Market: Rereading the History of
Aesthetics (New York: Columbia University Press, 1994); Paul K. Saint-Amour, Modernism and Copyright (Oxford:
Oxford University Press, 2011).

[2] See Catherine Fisk Authors at Work: The Origins of the Work-for-Hire Doctrine, Yale Journal of Law & the
Humanities, Winter 2003, 15; also, An Ingenious Man Enabled by Contract: Entrepreneurship and the Rise of
Contract Duke Science, Technology & Innovation Paper No. 16. Duke Law School Legal Studies Paper No. 157.
May 2007.

[3] A technical note: there are good reasons both for and against putting culture worker in scare quotes (the
temptation towards the former is especially strong in cases where my use of cultural worker is clearly
anachronistic), but I am guessing that leaving the punctuation out enhances the readers experience. Exceptions will
be made, of course, for cases of cultural worker-in-quotes in primary sources.

[4] Goldstein v. California, 1973, Note 23. By Art. I, 8, cl. 8, of the Constitution, the States granted to Congress
the power to protect the Writings of Authors. These terms have not been construed in their narrow literal sense,
but rather with the reach necessary to reflect the broad scope of constitutional principles. While an "author" may be
viewed as an individual who writes an original composition, the term, in its constitutional sense, has been construed
to mean an originator, he to whom anything owes its origin. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S.
53, 58 (1884). Similarly, although the word "writings" might be limited to script or printed material, it may be
interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor. [p*562] Ibid.;
Trade-Mark Cases, 100 U.S. 82, 94 (1879). Thus, recordings of artistic performances may be within the reach of
Clause 8.

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