U.S. Intellectual History Blog

To the Work

Inspired by Ben’s writing about whether blogging is scholarship, I am sharing some work in progress. This is a bit unusual for me–typically I write about things not directly related to my dissertation research.  But I think this writing overlaps with the interests of many of the blog’s members and readers, and I am interested, in an experimental way, in looking at whether it might be productive or useful to share this kind of work at this stage of writing–not germinal, not finished, somewhere in between. Any sort of constructive response, positive or negative, is welcome. 

(***)

Zechariah Chafee, Jr. and the Birth of the “Cultural Worker” 

  Introduction

Among the more exciting recent developments in labor history is the emergence of a new historiography of the skilled worker–as evidenced by Nikil Saval’s Cubed and Jean-Christian Vinel’s The Employee: A Political History. These texts, along with related work by Michel Zakim, Andrew Ross, Ursula Huws, and Erin Hatton, among others, have shed new light on the labor history of the white-collar salariat (and its others) and the political question of the skilled worker.[1]

In light of current realities––a labor market increasingly dominated by “content creators,” programmers, and other highly trained laborers in the fields of what Jodi Dean calls “communicative capitalism”––the advent of this new historiography seems particularly timely. With private sector union density dipping below five percent, it may well be that the future of collective bargaining rests on the incorporation of white-collar professionals into the house of labor.  If that is so, a sustained inquiry into the history of these professionals will do doubt be necessary.

In this essay, I seek to build on some of the arguments of these new texts, while advocating a shift in emphasis. Absent from much of the recent literature is sustained attention to that stratum of white-collar workers who, for many decades, served as the leading edge of their class fraction: the artists, writers, musicians, and above-the-line film and radio professionals. The creative professionals, in other words, who have often been called (first, under the influence of the Russian Revolution, then under the influence of the New Left) “cultural workmen” or “cultural workers.”

The importance of “cultural workers” does not simply reside in some spiritual or metaphysical leadership of the white-collar sector (although there are obvious reasons why certain popular novelists, painters, filmmakers, actors, and athletes have become culture heroes at different times and within a variety of social movements). As Murray Ross noted in 1941’s Stars and Strikes, and as Vern Countryman emphasized in a 1948 essay on the American Federation of Musicians, conventional wisdom had long held that skilled white-collar workers could not form unions or seek the collective bargaining protections of the Wagner Act.

Consider the “Preface” to Stars and Strikes:

One of the most interesting developments in American unionism in the past decade has been its rapid expansion among the professional and white-collar classes. Numerous highly paid professional groups as well as many supervisory and white-collar employees, who have traditionally identified their interests with management and therefore were considered immune from the leveling effects of unionism, have recently organized their own unions. Nowhere has this tendency been more pronounced than in the motion picture industry. Actors, writers, directors––the entire creative talent of the screen––whose fabulous incomes have long distinguished them from all other employees, have established their guilds and insist on bargaining collectively with their employers. This sudden development was no less a surprise to the trade union movement than to the general public.[2]

Countryman sounds a similar theme, vis-à-vis musicians: “Trade unionism, which found little favor among most other white-collar employments until the period of the last depression, got a substantial start among those employed in the entertainment industry a half century earlier. One of the oldest and strongest of the labor unions in that industry is the American Federation of Musicians.”[3]

As Ross and Countryman emphasize, “cultural workers” were often the first out of the gate to challenge the commonsense logic unions were the domain of industrial workers, and industrial workers only. Consequently, the unionization efforts of “cultural workers” were uniquely influential in regard to the aspirations of other office workers, paper pushers, and grey flannel suit commuters to join the house of labor.

The law was the primary medium through which “cultural workers” engaged in labor politics. “Cultural workers” became the subject of a complex legal discourse, beginning in the late nineteenth century, in large part because the legal questions provoked by their attempts to secure workplace and job protections required novel conjugations of three areas of law: labor jurisprudence, First Amendment doctrine, and intellectual property statutes. All of these legal discourses were undergoing epochal changes as corporate capitalism deepened its presence in American life, and in particular as the monopoly character of monopoly capitalism lent to many industries the appearance of being “clothed with a public interest.”

The timing here is important. Although the conception of corporations as “quasi-public” goes back to the 1880s, the 1930s witnessed a new ratification of the notion. In 1937, Thurman Arnold wrote of the New Deal-era corporate order: “It is obvious that private property has disappeared.” A few years earlier, Adolf Berle and Gardiner Means had argued:  “The surrender of control over their wealth by investors has effectively broken the old property relationships and has raised the problem of defining these relationships anew.” The “quasi-public corporation,” Berle and Means wrote, had arrived, destroying the “unity that we commonly call property” by dividing ownership into nominal ownership and managerial power.[4]

It was this indeterminacy around corporate property, in general, coupled with the sense that the communications industries were “common carriers,” that made intellectual property a newly valuable stake in struggles between “cultural workers” and the corporations that manufactured cultural commodities. Concern over the economic value of intellectual property led those corporations to make lasting concessions to the unions of “cultural workers” in exchange for a settlement on intellectual property questions and a certain measure of labor peace.

To develop this argument further, and to demonstrate both the centrality of the “cultural worker” in the labor history of white-collar workers, and the roots of the discourse surrounding the “cultural worker” in the intellectual history of the law (and in particular the novel interweaving of theories of collective bargaining, free speech, and copyright), I propose a close examination of two texts from the 1940s-era writings of Zechariah Chafee, Jr. the 1945 Columbia Law Review essay “Reflections on the Law of Copyright” and the two-volume report of the Hutchins Commission on the Freedom of the Press, entitled Government and Mass Communications, published in 1947.[5] These writings return again and again to the dilemma of the “cultural worker” vis-à-vis the regulation of popular culture and the news media.

Using as a model Bruno Latour’s studies in the history of science, I attempt to treat Chafee as a representative of certain historical forces in processes of translation or drift, rather than an intellectual innovator in his own right.[6]

In other words, the 1940s-era writings of Chafee are useful to us, here, to the degree that they help us recognize broad patterns and dominant tendencies. For us, the value of Chafee’s texts lies in their general confirmation of our thesis that the “cultural worker” served as the representative white-collar professional in the midcentury discourse on the labor politics of skilled work, and that this centrality of the “cultural worker” created a peculiar constellation of legal doctrine and political ideology: a constellation under which the “cultural front” and its afterlives played themselves out, and with which cultural and intellectual historians have only partially come to terms.

Part One

Why, in 1945, did Zechariah Chafee, then fifty-six years old, a longtime member of the Harvard Law School faculty, and the nation’s preeminent expert on First Amendment jurisprudence, elect to write a detailed inquiry into the history and future of American intellectual property law?[7] Chafee’s choice to engage as deeply as he did with the history of intellectual property jurisprudence—a topic that was, technically speaking, outside of his area of expertise––suggests that IP had, in the World War II years, become newly urgent.

Chafee was not alone, among progressive legal thinkers, in devoting attention and energy to the almost forensic dissection of culture and law. At the same time as Chafee was finishing his IP essay, he was working with Harold D. Laswell, then Professor of Law at Yale, on the Hutchins Commission on the “future of the free press” (named for its chairman, University of Chicago Chancellor Robert M. Hutchins, a Yale Law School graduate and a famous disciple and later apostate of “legal realism”). As we saw above, Vern Countryman wrote a detailed history of the American Federation of Musicians for the Yale Law Review. FDR’s Assistant Attorney General Thurman Arnold continued to meditate, in print, on the problems of monopoly and output restriction in the newspaper, film, and music industries.

Chafee’s essay, then, interests us as an example of a more general tendency—the sharpening of interest among the nation’s most influential lawyers in what might be described as the problem of the “cultural worker.” This problem was not merely some technical dilemma or administrative puzzle. The very fact that by 1940, the vast majority of producers of culture were now salaried employees––unionized white-collar workers for large corporations— was itself the source of new concerns, worries, and challenges.  The transition from an older artisanal model of cultural production to a corporate capitalist one seemed to observers like Chafee to have taken place overnight. Its implications remained, in the early 1940s, troublingly unclear.

Biographical Background

Chafee was born into a family of wealthy industrialists in Providence, Rhode Island on December 7, 1885. [8]  His early work was in commercial law, connected with his family’s business interests. When Chafee joined the Harvard law school faculty in 1916, it was to teach commercial law: courses entitled “Equity,” “Insurance,” and “Bills and Notes.” American entry into World War I spurred Chafee to begin researching First Amendment jurisprudence, a topic that was at the time he regarded as woefully understudied: nearly as poorly organized as were the rights to free speech and assembly themselves, under an array of state and local-level sedition and censorship statutes.

Destined to gain renown as a civil libertarian (for most of the members of his class, a synonym for “radical leftist”), Chafee was in fact a moderate New England Brahmin. He was a reluctant civil libertarian, he remarked, because “his people had money.” Never in danger of becoming a radical, Chafee was, on the contrary, constitutionally averse to trade unionism and remarkably incurious about the causes and effects of American racism. As Donald Smith observes, Chafee held fast to the “negative liberty” or noninterventionist view of government common among classical liberals. Like his laissez-faire forbears, he maintained a fear of “big government,” and identified as a “Cleveland Democrat.”

What motivated Chafee’s civil libertarianism on the First Amendment rights of dissidents and radicals was a not uncommon strain of elite empathy and noblesse oblige. Speaking of jailed members of the Industrial Workers of the World, Chafee remarked: “I see no reason why I should be out mountain climbing and enjoying life, while some other chap who started life with less money and gets a little angrier and a little more extreme should be shut up in a prison for five to ten years…”

Looking back at his early enthusiasm for First Amendment civil libertarianism from the vantage point of 1950, Chafee emphasized the significance of his youthful immersion in a certain culture of pragmatism. The spirit of the Wilson years, Chafee reflected, was one in which  “forward-looking men and women were still engaged in rethinking our traditional, political, economic, and social conceptions and considering how they could be best altered to meet the new needs of an industrial and highly developed country.” At the same time, Chafee was known to quip: “I want to be a pragmatist, but I don’t want to work very hard.”[9]

Under at least some vague influence of Holmes, James, and Dewey, however, Chafee came to embrace the guiding principle: “Prove all things, hold fast that which is good.” Prior to George Creel’s mass mobilizations of patriotic affect and the subsequent explosions of anti-democratic passions in the postwar Red Scare, the minds of men had begun to move “with a freedom which is now incomprehensible… thinking had not yet been hardened into queer shaped by the emotions aroused by war and conflicting reactions to the Russian Revolution.”

Why Chafee took up the task of mapping the state of free speech himself will be explored in greater detail below. An immediate connection between Chafee’s interests in commercial law and First Amendment jurisprudence did, however, should be emphasized. Free speech issues did arise, from time to time, in the ordinary course of teaching commercial law: for example, in the common law doctrines of libel and slander.[10] The Equity law casebook that Chafee assembled in order to teach his classes at Harvard included, necessarily, some coverage of the legality of after-the-fact injunctions against libelous texts, as opposed to “prior restraint” on publication, a topic upon which Blackstone and other giants of Anglo-American law wrote passages with which competent lawyers were expected to be fluent. Significantly, these questions overlapped in many respects with bread-and-butter IP issues.

Whatever the explanatory value of the links between commercial law and free speech questions for clarifying why it was that Chafee was drawn to First Amendment history (and then later to the history of IP), the immediate impetus for his engagement with free speech matters was the repression of dissident speech and writing under the federal Espionage Act of 1917 and the Sedition Act of 1918. Chafee’s first article on free speech appeared in the New Republic of November 16, 1918. The culmination of this research work was 1920’s Freedom of Speech, which sought to contextualize the novel abuses of the Espionage and Sedition Acts, the Palmer Raids, and the imprisonment and deportation of leftists within the contradictory history of First Amendment case law. For the next twenty years, into and beyond the World War II Era, Chafee sought obsessively to make sense of the repressive turn of 1919, and worried that the “next war” might catastrophically imperil free speech.

Chafee’s engagement with First Amendment questions brought him into close proximity with the history of state regulation of writing, a history that included a significant swath of modern intellectual property law’s lineal ancestry.[11]

As significantly, there was no way to think through the dilemmas of First Amendment jurisprudence without confronting the same deep epistemological questions at the heart of intellectual property debates. What does “meaning” mean, for example, and how does representation relate to or mediate “reality”?

In the years between the publication of Freedom of Speech and World War II, Chafee often went for long stretches without attending at all to First Amendment questions or the politics of cultural regulation. This is not to say that he was ever aloof from the broader issues at the heart of First Amendment jurisprudence. As was common in the heyday of Hooverian associationalism, Chafee spent considerable time serving on para-governmental bodies.

Perhaps most influential upon Chafee’s later work on IP and free speech was his service, from 1929 to 1931, on the National Commission on Law Enforcement and Observance (the Wickersham Commission), under the leadership of Chafee’s mentor and dean, Roscoe Pound.  Herbert Hoover convened the Wickersham Commission to investigate Prohibition-era crime. The task that most affected Chafee’s development was the work of one subcommittees that investigated “lawless enforcement of the law,” including, in particular, the use by police officers of the “third degree.” The widespread defense of police torture and intimidation galled Chafee and strengthened his commitments to what would soon be called “human rights.”

Work on the Wickersham Commission brought Chafee into contact with Carl S. Stern and Walter H. Pollak, both Jewish civil libertarians deeply involved with the ACLU. In the case of Gitlow (1925), Pollak had argued successfully before the Supreme Court that First Amendment speech and press guarantees protect against infringements by state and local governments (effecting, in other words, the final ratification of the Bill of Rights, in the arena of free speech). Intellectual intimacy with Stern and Pollak made Chafee acutely aware of the extreme character of restrictions of speech that remained in force, even after Gitlow: state-level statutes that called, for example, for suppression of all “malicious, scandalous, and defamatory” publications.

Who was to define these terms, and how texts were to be evaluated remained open questions. The “clear and present danger” test that Oliver Wendell Holmes, Jr. had devised for 1919’s Schenck case tended to shed less light on these questions than was often assumed: the measure of “tendency to incite” violence as variable and indeterminate as any other linguistic fix.

What becomes unavoidable, as soon as one dips a toe into these waters, is the imperative to wrestle with the nature of the “linguistic act” (which bears a close family resemblance to the category that analytic philosophers would soon name the “speech act”).

Intellectual property law was, similarly, increasingly concerned with the nature of expressive action: what John Dewey, in Art and Experience (1935), attempted to define as the “creative act.” Did a propertizable work of art require the trace of a certain kind of aesthetic effort, different in kind from ordinary labor? (This question, not coincidentally, lurks at the core of the capitalist aesthetic culture that developed in the US in the twentieth century). It was in response to these dilemmas that Chafee turned to Holmes’s theoretical solution, which held that the “writings” protected by the Copyright Act encompass any “new collocation” of semiotic materials solidified in some “permanent fixation.”

American entry into World War II, and the new threats to civil liberties that mobilization for war seemed to promise, provided the motivation to revisit the status of free speech. In 1943–-as he was writing the essays on IP with which this chapter is concerned––Chafee joined the aforementioned Hutchins Commission on Freedom of the Press, a multi-year investigation into the recent history and prospects of American freedom of the press headed by University of Chicago Chancellor Robert M. Hutchins and funded by Henry Luce (later the Encyclopedia Britannica). As it happens, Luce was ultimately disappointed in the Commission’s reports, authored by Chafee, dismissing the project as “philosophically uninteresting.”[12] It is probably no accident that the dangers about which the Hutchins Commission warned were soon to find note-perfect expression in the Luce publications themselves, as Whittaker Chambers launched his campaign against Alger Hiss, and Luce pushed a “loss of China” line with increasing fervor.

My hunch––which remains to be confirmed in the archives––is that it was the 1937 case of Associated Press v. NLRB (often referred to as the “Morris Watson case”), along with a series of music-related test cases in the 1930s that first drew Chafee to the idea of writing about intellectual property law.

Morris Watson, a journalist who worked for the Associated Press, was fired on October 13, 1935. Subsequently, the American Newspaper Guild (ANG), an organization with origins in the efforts of left-leaning columnist Heywood Broun and his lawyer friend Morris Ernst during the National Recover Administration experiment of 1933-35, filed a complaint with the National Labor Relations Board (itself a novel creation of the new Wagner Act). In response, the NLRB held a series of hearings (which the Associated Press tried to forestall by means of injunction). In May of 1936, after the Associated Press refused to comply with NLRB orders to reinstate Watson, a petition for enforcement was filed in the Second Circuit Court of Appeals. In July, the Second Circuit ruled in Watson’s favor (a ruling that also served as a validation of the legality of the Wagner Act). The Associated Press appealed, and the Supreme Court issued its ruling (as part of a series of five cases in which the constitutionality of the Wagner Act was in question) in April of 1937, upholding the Second Circuit ruling, siding with Watson and the ANG against the Associated Press.[13]

There was no question that Associated Press v. NLRB was a product of fresh political developments—not least of which were the formation of the ANG, the passage of the Wagner Act in 1935 and the rise of the Congress of Industrial Organizations. It was to such novelties that the pragmatist legal imagination was particularly attuned.

At the same time, cases involving popular bandleaders Paul Whiteman and Fred Waring––also responses to new circumstances, in this case improvements in phonograph recording, the rise of network radio, and the vogue for big band jazz––were wending their ways through district courts. These legal contests would ultimately arrive at the Second Circuit Court docket of Chafee’s friend Learned Hand, in the form of the landmark 1939 case RCA v. Whiteman. That case that would, incidentally, pivot on arguments drawn from Chafee’s article 1928 article “Equitable Servitude on Chattels” (the technical question was whether a condition could be imposed upon a commodity that survived its sale, in this case a sticker placed upon a sound recording that announced “Not Licensed for Radio Broadcast”). For these reasons, it is likely that Chafee paid attention to the case as they were unfolding. They receive considerable attention in “Reflections on the Law of Copyright.”

In both the Associated Press v. NLRB and RCA v. Whiteman cases, the argumentative core rested in an interweaving of intellectual property law (which had for decades revolved around the question of whether the corporation that hired the author, or the author him or herself, was assumed to enjoy legal control of the author’s output) with First Amendment law (shaped by the question of whether a free press required robust protections of the individual journalist as against the news organization and the state, or contrarily the robust protection of the news organization as against the will of the individual journalist and the state) and labor law (the “closed shop” of which necessarily implied a limit on corporation’ property and speech rights).

Chafee’s analysis of such problems returns, again and again to the central figure of the “cultural worker.” Thus, in “Reflections on the Law of Copyright,” Chafee’s interest is in the economic protection of “authors, musicians, painters.” It would have been just as plausible for a thinker like Chafee to have chosen to write from the perspective of the corporate leader seeking to maximize efficiencies, or in sympathy with the jurist hoping to simplify his working life. That Chafee seeks consistently to think with the “cultural worker” is itself quite a remarkable indication of the arrival of the new “cultural front” conjuncture.

The problem, however, as Chafee remarks, is that popular culture’s “new inventions and new economic set-ups” either had to be “jammed into inappropriate statutory language” or suffer the pecuniary and reputational damages attending exclusion from IP law.  In a moment marked by the emergence of “new kinds of creativeness” (and thus the parallel rise of “new infringing devices”), nothing could be more important than adjusting the existing IP law infrastructure.

Chafee’s essay further illuminates the epistemological unsettlement effected by the crossing of the wires of intellectual property, First Amendment, and labor law. What protections might the law afford to the cultural workers organized in the new talent guilds? And what unintended consequences might overzealous affirmation of cultural workers’ rights to these protections have for American culture?  

Part Two

“Reflections on the Law of Copyright” begins in a memorable fashion, playfully describing copyright as the “Cinderella” of the law. Copyright’s “older sisters,” Chafee suggests, might be imagined as the doctrines of “franchises” and “patents” (which had “long crowded [copyright] into the chimney-corner”). The “fairy godmother” of “invention” had more recently endowed copyright with “mechanical and electrical devices as magical as the pumpkin coach and the mice footmen.”[14]

Chafee’s choice of Cinderella as copyright’s allegorical double was apt, illustrative of the major dynamics of the postwar IP law regime, then coming into view. To Chafee, as to many contemporary observers, copyright did indeed seem a long-neglected stepsister, newly transformed into the “queen of the ball” via the efforts of mythical creatures and futuristic technologies.

The thirty-five year stretch between the passage of the 1909 Copyright Act revisions and the end of World War II, Chafee marveled, had witnessed epochal transformations: “the transmission of the voice by wireless”; “the motion-picture industry came to maturity”; the development of “the offset process and microfilms and other new (printing) methods.” Crafted to cope with cutting-edge technologies, the 1909 revisions now seemed increasingly antique.

“Scientific inventions” were not the only recent “startling changes.” “Vast organizations” had been formed in the “entertainment industry,” and “new kinds of agreements” between authors and cultural industries had become common. The balance of international trade in aesthetic commodities had been reversed. Long a net importer of “intellectual and artistic material,” by 1945 the American culture industries dominated the market in aesthetic commodities.

At the same time, Chafee’s invocation of the story of Cinderella suggested that a certain disaster was looming as the clock approached midnight. Might not the rapid expansion of IP rights, in both scale and scope, eventually bring the engine of American cultural innovation to a halt? “The protection given the copyright-owner should not stifle independent creation by others.” New campaigns by cultural workers for European-style “moral rights” (or droits d’auteur) seemed to point to the revision of IP law in the direction of the eradication of all temporal limits on copyright, with IP rights imagined as lasting in perpetuity from the moment of creation until the end of time. Artistic progress would be stifled, Chafee worried, under such an arrangement, and the production of new works would rapidly become impossible unless “some use of the contents” of existing texts was granted “in connection with the independent creation of other authors.”

Chafee worried, in particular, that the 1909 Copyright Act had given a “posthumous veto power” to the surviving relatives of authors––“perhaps for decades.” Thus the unpublished letters of James McNeill Whistler had been lost to the world “because his crabbed niece would not allow his chosen biographers to print them.” Chafee invokes a hypothetical case: the discovery of a new Edgar Allen Poe manuscript, never seen by the American public because of the exercise of IP rights by Poe’s descendants. Multiplied, such a scenario spelled disaster for national culture.

Such gloomy presentiments would certainly seem to be borne out by the hypothetical case of anyone who, today, would be foolhardy enough to attempt to produce an artistic text overlapping in any way with Walt Disney’s 1950 film Cinderella (itself a “remake” of an earlier short that Disney had produced for Laugh-O-Gram Studios in the 1920s: thus, ironically, a text that would itself have been impossible to produce, on IP grounds, only a few years later). Any such endeavor would automatically trigger hundreds of thousands of dollars in legal fess, and yards of IP-related red tape. Dozens of casebooks could be filled with examples of recent lawsuits, ranging from the serious to the preposterous, in which the owners of valuable media properties like Cinderella seek to halt production, distribution, or marketing of new works in any way reduplicative or derivative.

While the “IP maximalist” excesses of the present moment lurked, for Chafee in 1945, as a distant (if worrying) horizon, the events of the previous few years––copyright’s whirl “through the mad mazes of a glamorous ball” (a dizzying set of test cases and revisions of IP law in response to the rise of new technologies and the continuing expansion of mass culture)––suggested a variety of possible trajectories, branching off in both progressive and restrictive directions. What was increasingly undeniable, at the end of the World War II Era, was the “vast increase in the pecuniary value of literary and artistic property,” which had made newly urgent “a thoroughgoing revision of the Copyright Act.”

For Chafee, as for most midcentury observers, the 1909 Copyright Act served as a watershed (if one that intervening events had rendered largely obsolete), ushering in the era of the “cultural worker.” The Congressional hearings leading up to the passage of the 1909 Act were among the earliest public announcement of the “cultural worker’s” arrival.

In 1907, testifying before a Senate Committee, publisher (and, later, husband of Amelia Earhart) George Putnam referred to “our American art workers, our American science workers, who are workers just as much as the mechanical workers, workers representing the higher education of this country.”[15] This was, to a substantial degree, a new—even somewhat shocking––formulation. But by the time Congress passed the revisions to the Copyright Act in 1909, the “American art worker” was, to a significant degree, its central protagonist.

Perhaps the most important transformation effected by the 1909 Act, tilting in the direction of a political economy of culture built around the figure of the “cultural worker,” was its enshrinement of the mechanism of “work-for-hire.” Under “work-for-hire” clauses, corporations that hired cultural workers were guaranteed, ahead of time, that the employee agreed to cede all IP rights to the company that cut his or her paycheck.[16]

As Catherine Fisk writes, the “work-for-hire” innovations of the 1909 Copyright Act should be seen as part of the general theory of the firm of the Progressive Era. From the proto-Coasean perspective that was beginning to become dominant in the early years of the twentieth century, “the ability of the firm to obtain property in the employees’ creative products is a significant feature of an efficient intellectual property regime.”

The problem, however, is that for the law, intellectual property initially vests property rights in the author or authors of a work—and “as far as lawyers are concerned, indentifiable people the creators of all work eligible for copyright protection.” For the law, then, a conceptual revolution became necessary by means of which corporations would be unambiguously treated as authors because they hire the people who create the works and texts covered by intellectual property law.

This was the work accomplished by the 1909 Copyright Act revision: the entrenchment of the legal fiction that “the employer or other person for whom the work was prepared is considered the author” for the purposes of federal copyright law. The statutory language establishes two categories of “work ‘made for hire’”: 1) if an “employee” prepares it “within the scope of his or her employment” or 2) if “one of nine statutorily enumerated types of work prepared by persons not meeting the legal definition of employee was ‘specially ordered or commissioned.’”[17] The “cultural worker,” then, was to become, paradigmatically, the “employee” who prepares intellectual property for others, “within the scope of his or her employment.”


[1] See Nikil Saval, Cubed: A Secret History of the Workplace. 2014; Jean-Christian Vinel, The Employee: A Political History. Philadelphia: University of Pennsylvania Press, 2013; Michael Zakim and Gary John Kornblith. Capitalism Takes Command: The Social Transformation of Nineteenth-Century America. Chicago: The University of Chicago Press, 2012; Erin Elizabeth Hatton, The Temp Economy From Kelly Girls to Permatemps in Postwar America. Philadelphia, Pa: Temple University Press, 2011; Ursula Huws, “The Rise of the Cybertariat” and Andrew Ross, “No Collar,” in The Socialist Register, 2000. 

[2] Murray Ross, Stars and Strikes (New York: Columbia University Press, 1941), vi.

[3] Vern Countryman, “The Organized Musicians: I” The University of Chicago Law Review, Vol. 16, No. 1 (Autumn, 1948), 56.

[4] See Thurman Arnold, The Folklore of Capitalism (New Haven: Yale University Press, 1937), 121; Martin Sklar, The Corporate Reconstruction of American Capitalism, 1890-1916: The Market, the Law, and Politics (Cambridge: Cambridge University Press, 1988), 55-56; Adolf A. Berle and Gardiner C. Means, The Modern Corporation and Private Property (New Brunswick, NJ: Transaction Publishers, 1991 (1932), 4, 7.

[5] Zechariah Chafee, Jr., “Reflections on the Law of Copyright: I,” Columbia Law Review, Vol. 45, No. 4 (Jul., 1945), pp. 503-529; and “Reflections on the Law of Copyright: II, III,” Columbia Law Review, Vol. 45, No. 5 (Sep., 1945), pp. 719-738; and Government and Mass Communications, Vols. I and II, Chicago: University of Chicago Press, 1947.

[6] Bruno Latour, The Pasteurization of France, 7.

[7] Zechariah Chafee, Jr., “Reflections on the Law of Copyright.”

[8] Biographical material is drawn from Donald L. Smith Zechariah Chafee, Jr. Defender of Liberty and Law (Cambridge: Harvard University Press, 1986).

[9] Smith, 103.

[10] In the late Progressive Era, libel and slander had recently become important vehicles through which the new commercial entities brought into being by the corporate revolution in American capitalism defended intangible values like brand “reputation.” See Morton Horwitz’s Transformation of American Law.

[11] See Susan Stewart, Crimes of Writing Problems in the Containment of Representation. New York: Oxford University Press, 1991.

[12] Alan Brinkley, The Publisher. New York: Knopf, 2010.

[13] Daniel J. Leab, A Union of Individuals, 277.

[14] “Reflections on the Law of Copyright: I” Columbia Law Review, Vol. 45, No. 4 (Jul., 1945), pp. 503-529, and “Reflections on the Law of Copyright: II, III,” Columbia Law Review, Vol. 45, No. 5 (Sep., 1945), pp. 719-738. Owing to changing usage patterns, I have chosen to conflate 1945’s “copyright” with 2014’s “intellectual property.” This move has more advantages than drawbacks (it establishes the correct continuities, I think), but one caveat deserves special emphasis: today’s doctrine of “intellectual property” includes patent law, which Chafee does not discuss in more than a cursory manner in the 1945 essays.

[15]  Committee on Patents, “Hearings: Revision of Copyright Laws” Washington DC: GPO, March 26, 1908, 16-17, emphasis added.

[16] Catherine Fisk, “Authors at Work: The Origins of the Work-for-Hire Doctrine,” 2001. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=287608

[17] Fisk writes that the nine categories are: “(1) contributions to a collective work, (2) motion pictures or other audiovisual works, (3) translations, (4) supplementary works, (5) compilations, (6) instructional texts, (7) tests, (8) answer material for a test, and (9) atlases. However, the parties must expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. Id. Thus, the default rule is that works by independent contractors are not works for hire.”

15 Thoughts on this Post

  1. Before reading Mike O’Connor’s post an hour ago, I am pretty sure I had never heard of Adolf A. Berle and Gardiner C. Means, nor their 1932 book *The Modern Corporation and Private Property*. And I know I get a successive citation here! – TL

    • Now that I’ve read the whole thing, I can’t wait to see what you will do with the Hutchins material (if anything?). I spent a lot of time reading around Hutchins in my work, but less time directly reading his work than I would’ve liked. He’s fascinating. – TL

      • Tim, I figured you would be my go-to person on Hutchins. 🙂 Did you find any good sources on the Hutchins Commission? I know there is an oral history at Columbia that Brinkley cites, and I should probably make some time to go through his papers… would love any tips on where else to look. And do you know of any secondary lit on the Hutchins Commission? It seems weirdly under-studied, but I haven’t checked as thoroughly as I should…

      • I should add that the character who seems to link Chafee to Mortimer Adler is William Ernest Hocking, another member of the Hutchins Commission. Do you know much about WEH?

  2. This is interesting and also of course quite long, so I hope you’ll forgive me for having gone through it somewhat quickly.

    Anyway, I’d like to comment on your passing reference to Harold Lasswell (“At the same time as Chafee was finishing his IP essay, he was working with Harold D. Laswell, then Professor of Law at Yale, on the Hutchins Commission on the “future of the free press””).
    [Note, btw, minor typo: Lasswell shd be w 2 s’s]

    I’m not sure exactly how or whether Lasswell might fit into your argument and focus. Nonetheless might be worth mentioning that (as you may know already) he was an important figure, as much (if not more) in political science as in law. His interests in, among other things, psychoanalysis (and psychology in general), propaganda, symbols, and their connection to politics, both domestic and international (see, e.g., World Politics and Personal Insecurity, published in the mid-30s) link him to Cold war-era modernization theory (through having taught political scientists like Lucian Pye and Gabriel Almond), as does his emphasis on a certain kind of applied social science under the rubric of “the policy sciences”; and his later writings on law and ‘world public order’ (w M. McDougall) formed the basis of a whole approach to int’l law scholarship (the New Haven School, sometimes called; less influential today than it was, though it still exists).

    If (and I emphasize “if”) there is a connection to be drawn between the position/figure of the “cultural worker” and IP and new technologies, all of which you are concerned with, and Lasswell, it might be through the latter’s WW2 work on propaganda, which I’m not at first hand familiar with, but which might prove worth a glance. (It would perhaps end up as no more than a footnote in one of your chapters, but I don’t know.)

    Btw a pol. scientist, Dan Durning, wrote in 2011 a short (6 pages or so) intellectual bio of Lasswell and posted it on academia.edu, from which it can be downloaded. Lasswell’s papers are at Yale, I think; I’m not aware that anyone has published a full-scale (book-length) intellectual bio of him, though I could well be wrong about this, since I haven’t checked.

  3. Kurt – A couple more items on Lasswell –

    James Farr, Jacob S. Hacker and Nicole Kazee, “The Policy Scientist of Democracy: The Discipline of Harold D. Lasswell,” APSR 100,4, Nov 2006.

    Heinz Eulau and Susan Zlomke, “Harold D. Lasswell’s Legacy to Mainstream Political Science: A Neglected Agenda,” Annual Review of Political Science 2, 1999.

    • @Bill Fine
      I have APSR 100:4 (the whole issue, to mark the journal’s centennial, is devoted to the history of the discipline) on my shelf, but didn’t think to check it — so I’m glad you did! B/c I might even look at that article (of course, I’m rather lazy, but you never know… ;))

  4. This is great, illuminating stuff, Kurt, I find it particularly interesting how it speaks to current notions of “creative” work and intellectual property. You say this is between germinal and finished, but it seems much more closer to the latter. Keep these posts coming, your dissertation project seems wonderful.

    • Thanks so much, Kahlil. Would love your thoughts on how our common theoretical concerns might be woven into an introduction: is there a certain literature you would want to see highlighted/addressed/engaged with/criticized?

      • In terms of literature, your post made me think of post-Maoist engagements with cultural work and the ever present tension between the intellectual and the “people,” specifically Bruno Bosteels in Marx and Freud in Latin America and his discussion of Mexican intellectual José Revueltas and the Argentine thinker Ricardo Piglia. A book that just came out and might be of help is Sarah Brouillette’s Literature and the Creative Economy, where she argues that questions surrounding the creative class, immaterial labor and so on are directly connected to the history of the idea of literary authorship.

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