Zahr Said, University of Washington School of Law, has published A Transactional Theory of the Reader in Copyright Law at 102 Iowa Law Review 605 (2017). Here is the abstract.
Copyright doctrine requires judges and juries to engage in some form of experiencing or “reading” artistic works to determine whether these works have been infringed. Despite the central role that this reading — or viewing, or listening — plays in copyright disputes, copyright law lacks a robust theory of reading, and of the proper role for the “reader.” Reading matters in copyright cases, first, because many courts rely on the “ordinary observer” standard to determine infringement, which requires figuring out or assuming how an ordinary observer would read the works at issue. Second, most courts characterize a key part of infringement analysis as a matter for the jury, largely on the basis of the jury’s ability to apply the ordinary observer standard. But the ordinary observer concept has not received much attention as a feature — really, a bug — in copyright law. The ordinary observer standard is unclear both in theory and in practice, and it misaligns with how jurors (or judges, or ordinary people) actually experience works of art. As a result of persistent confusion about the role of the ordinary observer, many cases produce outcomes that distort copyright doctrine and create unfairness for litigants. This Article demonstrates the need in copyright law for a better understanding of how readers read works of art, and it proposes a theory of reading from the humanities. Louise Rosenblatt’s theory of transactional reading helps diagnose copyright law’s reading problem and offers support for several concrete prescriptions. Instead of assuming that reading is a one-size-fits-all process, a transactional theory suggests that reading depends on why one reads and who does the reading. A less simplistic, more dynamic, and phenomenologically informed model of reading could help reshape the ordinary observer standard. This Article proposes that copyright adopt four changes: (1) more work should be done by judges as a matter of law, thus narrowing the role of the jury in determining infringement; (2) expert evidence ought to play a greater role in copyright litigation; (3) the jury should be instructed to do a more informed kind of reading when it evaluates works of art for infringement; and (4) courts should explore the use of special verdicts to render jury deliberation more transparent. These changes will mitigate the problems of the ordinary observer standard, while capturing its strengths.Download the article from SSRN at the link.