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On the Art of Evildoers

close-up photograph of Philip Roth

The fall of a literary star is something to behold. At the beginning of April, Blake Bailey was the toast of the literary world; his new biography of the novelist Philip Roth had been published to acclaim, landing on The New York Times best-seller list. But by the end of the month, Bailey’s fortunes were laid low by horrific allegations made against him, including that he raped two women as recently as 2015 and “groomed” middle school girls when he was a teacher in the 1990s. After they surfaced, his publisher, W.W. Norton, took the rare step of stopping promotion and shipment of the book just days after his literary agent dropped him as a client.

One might very well be tempted to say, “good riddance.” And there is no reason to defend Bailey personally; the accusations against him are credible and multiple. Yet Norton’s decision raises an important philosophical question: how evil does a person have to be in order for it to be impermissible to disseminate their art?

One problem we are immediately confronted with is the issue of arbitrariness. Are there any criteria for setting a threshold for the badness of a person such that it is impermissible to disseminate their art? One fruitful perspective on this question comes from rule consequentialism, which evaluates the rightness of acts according to how much the rules permitting or obligating those acts would promote overall good consequences, however the latter are spelled out. This perspective helps with the problem of arbitrariness because it prompts us to compare, in a morally meaningful way, different thresholds in terms of their hypothetical consequences. Not publishing Bailey’s book implies a rule setting the threshold for permissible publication at rape or sexual assault (or, presumably, worse). What would be the effect of consistently applying that rule as compared to a world in which the rule permitted disseminating just about anyone’s art?

Shockingly, not a few great artists have either admitted to or been credibly accused of rape or worse. William Golding, author of Lord of the Flies, details his attempted rape of a 15-year-old girl named Dora in his unpublished memoir Men and Women. William S. Burroughs killed his wife; Norman Mailer came close. Eldridge Cleaver famously wrote about raping white women as an act of revolutionary violence. Of course, Woody Allen stands credibly accused of sexually assaulting his daughter, Dylan Farrow; Roman Polanski was actually convicted of drugging, raping, and sodomizing a 14-year-old girl. And then there’s Bill Cosby. And Hitler, whose Mein Kampf chillingly lays out the dictator’s plans for the extermination of world Jewry.

The point is this: applied consistently, the rule implied by the act of not publishing Bailey’s work would deprive us in some cases of great works of art, and in other cases of important information. Publishers, producers, and art dealers, hesitant to invest in works that they might end up having to pull, might refuse to enter into contracts with artists without intrusive background checks. Yet the world of the consistently applied rule would also be better than ours in certain respects: victims would not be retraumatized by the fame of their abusers; artists might be deterred from committing heinous behavior by the thought that it would negatively affect their careers. How one weighs these different effects is a matter of fine judgment. In my view, the benefits seem speculative, while the costs seem probable and cumulatively great. But I could be wrong.

Another idea is that it is wrong to benefit people who are guilty of heinous moral wrongs, perhaps because it encourages or emboldens them to continue behaving as they do, or because — if they continue to commit badly — we may take on partial responsibility for their wrongdoing. Here, I think, we can do better than simply throwing up our hands and concluding that we must benefit wrongdoers if we want to benefit from their art— or at least, that we must benefit only them. For example, in Bailey’s case, Norton could have decided to donate all of the proceeds minus Bailey’s royalties from his book to rape survivors’ organizations. This outcome would surely not encourage Bailey, as it constitutes a clear condemnation of him. This would also be a great way of establishing some symbolic distance between the publisher and the author.

There are other compelling arguments against publication from a non-consequentialist perspective. Some may think that it is simply wrong to honor individuals who are guilty of heinous moral wrongs. By “honor” I mean something like expressing admiration for a person in a way that tends to enhance their social status. Perhaps this is wrong because such individuals do not morally deserve to be honored — and not because honoring them would bring about bad consequences. Publishing a person’s book certainly does honor them; thus, it is wrong to publish. The trouble with this argument is that it is arbitrary: when is a moral wrong so heinous that the obligation applies? Is there any reason to prefer the rule that sets the threshold for heinous acts at the killing of ten people rather than the killing of one? There doesn’t seem to be. Without any reason to draw the line at rape or sexual assault rather than, say, the extermination of the entire human race, we might as well choose the higher bar. But if we draw the line at the higher bar, then in effect publishing anyone is permissible.

That we nevertheless tend to believe it is wrong to honor people who don’t deserve it helps to explain why the question whether it is wrong to publish evil people will remain with us for the foreseeable future. Human beings have a well-documented aversion to ambivalence, preferring to hold either wholly positive or wholly negative attitudes towards persons and things. But publishing evil people puts us in the uncomfortably ambivalent position of having to appreciate and honor their talents while abhorring their deeds. This will never be a natural fit for beings like us.

The Social Justice of Copyrights and “Public Domain Day”

photograph of Duke Ellington record

In addition to starting a new calendar year, January 1st marks “Public Domain Day” when copyright restrictions expire for a new batch of artworks, thereby allowing new audiences to view them more easily and new artists to adapt them without needing special permission from the copyright holder. This year, the United States saw certain works from Buster Keaton, Gertrude ‘Ma’ Rainey, Duke Ellington, Virginia Woolf, Agatha Christie, and more enter the public domain, including the classic jazz song “Sweet Georgia Brown” and F. Scott Fitzgerald’s famous book The Great Gatsby.

On the one hand, it might seem like increasing accessibility to cultural artifacts is simply obviously good; given how many high school English classrooms rely on battered copies of Fitzgerald’s story, for example, we can see immediate benefits (both aesthetic and practical) to making it easier and cheaper to purchase new books. But, taken to its logical conclusion, this kind of argument seems to suggest that it might always be necessary for artworks and artifacts to be so accessible. If Gatsby really is so valuable, and if it is so embedded within American culture that it is often called “the great American novel,” then why should Americans have had to pay to read it in the first place? Put differently: why is The Great Gatsby only just now entering the public domain?

In brief, the concept of a copyright offers two related basic protections:

  1. It ensures that artists are compensated for the work that they perform, in a way that
  2. Ensures that society will continually benefit from the work of new artists (who, following from (1), will feel free to pursue their art).

This is why, for example, the Constitution specifically grants Congress the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Basically, in theory, copyrights work to level the social playing field a bit so that artists can (at least potentially) enjoy sufficient financial security to be able to practice their art. In effect, this makes copyrights a matter of social justice, since the people who benefit from these protections the most are precisely those from less-affluent or otherwise disadvantaged backgrounds. Although F. Scott Fitzgerald was not exactly socially disadvantaged, the person aiming to write the next great American novel could easily be discouraged from doing so without the hope of protected financial recompense for their labor offered by the copyright system. That is to say: aspiring writers might instead spend their energy towards non-artistic ends if their Gatsby was to simply immediately enter the public domain without helping the writer to, say, buy groceries.

To illustrate, imagine two people who both have an interest and talent for music: Thomas is born to a wealthy family in Hollywood, while Susan grows up in a lower-middle-class family in the Ozarks. Even if copyrights don’t exist, Thomas still has the luxury to pursue his art to his heart’s content: his family’s wealth offers him a level of comfort that shields him from the risk of “wasting time” on a hobby with no guarantee of compensation. The same cannot be said of Susan so easily: while she might still have plenty of personal reasons for playing music on her own, if the realities of her social position, say, require her to work a full-time job in order to provide for basic necessities, then she would be taking on considerable risk to herself if she instead chooses to devote her time to her art without any real guarantee that her music could offer her a profitable career. In principle, copyright laws offer Susan the promise of some financial protection such that if her art ends up becoming profitable, then she will be able to uniquely enjoy the monetary fruits of her labor without other artists being allowed to copy her work (at least for a time); it’s true that Thomas gets this benefit too, but notice that it doesn’t really affect him — he already had the financial protection to do as he liked with his art in the first place.

So, philosophically speaking, copyrights serve as a mechanism to help underwrite the kind of equality that John Rawls talks about with his first principle of justice: in explaining his view of a free and fair, egalitarian society in A Theory of Justice, Rawls argues that “each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.” Insofar as copyrights can serve to more fairly distribute opportunities to develop artistic skill and create artworks, they might be thought of as components of a just society. Without protections like this in place, it would become, in principle, roughly impossible for anyone not born into privilege to pursue a career in the arts.

It’s worth noting that this is also why artists cannot copyright “generic concepts” or natural elements of normal life: a copyright is only valid for unique artistic creations. In mid-2020, the estate of Sir Arthur Conan Doyle sued Netflix over the depiction of Sherlock Holmes in its film Enola Holmes; while many of Doyle’s stories involving the character of Holmes have entered the public domain, they all tend to present Holmes as a generally cold and unemotional person. Because it is Doyle’s later stories (that are still under copyright) that see Holmes display more warmth and kindness, the caring demeanor the detective shows his younger sister in the Netflix film provoked the copyright-holder to sue. However, the generally-ridiculed lawsuit was settled out of court in December, presumably because “warmth and kindness” are hardly unique artistic creations.

But this also evidences the problem with the other side of copyright laws: artworks are importantly different than commodities or other products for sale. Fitzgerald and Doyle weren’t just “doing their jobs,” for example, when they wrote The Great Gatsby and the Sherlock Holmes stories: they were effectively contributing to the cultural fabric of our society and the artworks that we collectively use to texture our social fabric with shared points of understanding and reference. It might be argued that, just as “warmth and kindness” are ubiquitous to the point of being un-copyrightable, the cultural familiarity of a character like “Sherlock Holmes” is (or is becoming) similarly un-copyrightable.

Such is the argument for “Public Domain Day.” Only the most radical defenders of the public domain would argue that copyrights are, in principle, problematic: indeed, artists both need and deserve to be secure to create their art (consider also: how else might audiences expect to come by new art to appreciate?). However, over time, the sedimentation of individual artifacts into the cultural consciousness makes a unique property claim on them less clearly valid — particularly after the original artist’s death. Though details differ by country, it is common now for copyrights to extend (in general) for either fifty or seventy years after the death of the artist, allowing both the original creator and their dependents to uniquely benefit from the artwork for a limited amount of time before legal ownership of the artifact is distributed collectively.

Rawls also carves out a space for thinking about copyrights in this way within his Difference Principle that allows for some individuals to benefit more than others if that inequality also serves to benefit the least advantaged in society: presumably promoting the further and continued creation of new artworks (as copyrights are designed to do) is just such a public benefit. But once the general welfare is no longer upheld by the existence of a copyright, it would be just for the copyright to dissolve — as indeed we see demonstrated and celebrated each year on Public Domain Day.

(A crucial note: you may have noticed my repeated hedging in previous paragraphs as I have defended copyright law “in principle” or “philosophically.” This is because the actual practice of copyright law in the United States is fraught with problematic and unfair issues that Rawlsian principles of justice would struggle to support. Indeed, the extension of copyright terms seen in the last few decades, the corporate interests apparently motivating such legislation, and other threats to a shrinking public domain (as well as unique questions posed by new forms of art and media) are all issues that deserve both philosophical and legislative attention in a way that is far more complicated than the simple picture I’ve sketched in this short article!)

Still, copyrights play an important part for anyone looking to protect the financial interests they have bound up in their art; for the rest of us, Public Domain Day grants us the green light to continue bearing back into the past to bring it forward into today.

Artist, Art, and Appreciation: Where Is There Space for Morality?

photograph of Polanski at Cannes

Roman Polanski, who confessed to drugging and raping a 13-year-old in 1977 and has had a new rape case brought against him this year, did not attend the Césars on February 28th. Protests denounced the 12 nominations his film, titled “J’accuse” and known in English as “An Officer And A Spy,”, received.

“By supporting the aggressors, by celebrating the aggressors, one does not allow the victims to speak out. Their word is denied,” Celine Piques of women’s activist group Osez le Feminisme said.

The entire academy announced their plans to step down following this year’s ceremony in response to disagreements over how to handle cases like Polanski’s. He has only avoided prosecution for his confessed crimes because he fled the US in the 70s; he is still wanted in the US.

“Distinguishing Polanski is spitting in the face of all victims. It means raping women isn’t that bad,” Actress Adele Haenel told The New York Times earlier this week. When Polanski won for best director, boos and shouts spread across the audience, and Haenel walked out, accompanied by others.

Despite the messages of the protestors, the history of resistance against working with Polanski, and France’s Culture Minister speaking out the day of the Césars to say that awarding Polanski with a Cesar would “send the wrong signals,” Polanski continued to characterize his absence from the awards as an attempt to avoid a “public lynching” by feminists.

Putting Polanski’s victim complex and reprehensible tone-deafness aside, we can attend to a common struggle that humans and cultures experience when it comes to valuing art.

It is a hallmark of societies since the Neolithic period that we produce art. Visual art, physical art, music – we are creative creatures that appreciate beauty. Further, so long as folks have theorized, we have come up with views about why we create art, what it is that makes things beautiful, and whether there is distinctive value in such objects and activities.

Cases like Polanski and “J’accuse,” and a disappointing number of others (R. Kelly, Bill Cosby, Woody Allen, the list goes on), brings to the fore the question of how our moral evaluation of the creator of art influences or assessment of the art itself. This isn’t a simple question, however, and some distinctions serve us well in tackling the question.

First, there are different ways that something can be valuable. An action, object, or person, can be valuable because it serves a purpose and thus be instrumentally valuable. Or, such things can be valuable because they have moral worth: they could help someone in need, reduce harm, or contribute to a flourishing life. They could be morally valuable. They could be valuable because they are beautiful, or elevate our aesthetic experiences or understanding; this is roughly what we mean to capture when we say that something has aesthetic value.

At the Césars, the protestors claimed it was morally wrong to publicly appreciate Polanski’s art because of our moral evaluation of him as a person. Let’s consider the possible interactions of moral value and aesthetic value.

Some art is revealing in its engagement with immorality in its very content. For instance, part of what makes the work of art valuable is the immoral nature of the work itself: the anti-heroes or villains that play central or significant roles, or immoral actions that are key to the plots. Through exploring the more terrible parts of our natures and horrible things that humans can do, we may gain a deeper understanding of ourselves and each other. For some, the immoral content of a work (its lack of moral value) will impact the aesthetic value of the artwork. Most, however, can acknowledge the value in, say, the villainous Raskolnikov, or disgusting Humbert Humbert, or bullying and two-faced Snape.

However, perhaps it makes sense to be troubled by art with immoral content. If it has immoral effects like bringing out immoral aspects of the audience, or promoting immoral ends, we may have pause about the attitudes we see as appropriate to have towards the art. This conclusion rests on the empirical claims that appreciating or engaging with art that has suspect moral content does promote such ends, however. And there may be a spectrum of appreciation involved with recognition of aesthetic beauty that makes such empirical research difficult. When we recognize the narratives of Dostoevsky and Nabokov as immoral,should that diminish our appreciation of their beauty or technique? Or does it perhaps have implications for the behaviors we ought to consider morally appropriate to take up in relation to such works of art? In other words, there are, roughly, two stances here: we can take aesthetic value and moral content to be independent, or we can take aesthetic value to depend on the moral value of an artwork.

This brings us to another important part of assessing appropriate ways to engage art: its context. Art has performative force, whether it be visual art, performance art, music, or what have you. The context in which it exists is part of its nature and when we characterize the meaning of a work in order to determine the aesthetic or moral attitudes that are appropriate to have towards it, these features must be taken into consideration as well. A painting that is critical of a political leader has different meaning if presented in the square outside the building housing the governing body (where it may constitute a threat), or in a textbook. A piece of music by a classical composer performed for family and friends may not carry the same social messaging as the same music selected as the highlight of an orchestra’s season, where the historical lack of diversity in such selections can make this choice controversial.

These aspects of a work of art, the content and context, can affect how we value it. Or, we can attend to these aspects to consider what attitudes it is appropriate to have towards the art itself. (Or perhaps these amount to the same thing – what is the difference between “valuing” and having an attitude toward something?)

With these distinctions in mind, let’s return to the Césars. A third and controversial issue is how the features of the creator can affect the value of the art. The debate over the extent to which the author’s intention affects the meaning of a piece will continue to loom over discussions of art, but for cases where engaging with the art amounts to engaging with the creator, and praising or celebrating the art means elevating the creator in the community, profession, or culture, the question is less theoretical.

To, as a community, celebrate art by a powerful and immoral creator is, to many, morally reprehensible. This is distinct, it seems, from the judgment that the art is immoral. Rather, it is closer to a judgment about whether it should have been produced in the way that it was.

The film was the product of more than just Polanski’s efforts. A full cast, production team, and crew of people put forth extensive work in order for this artwork to be released and then nominated at the Césars (though they did not attend). Jean Dujardin, who was nominated for best actor in this film, was among those who worked on “J’accuse” and did not attend the ceremony. However, he posted on Instagram, “By making this film, I believed and I still believe I made more good than harm.”

Dujardin seems to have made the judgment that the aesthetic value of the art outweighs the negatives of working alongside, appearing to be indifferent to the wrongs of, or being part of celebrating the work of, Polanski. These are three ways of assessing the “harm” Dujardin could speak of. The “good” presumably is the work of art, which, according to the Césars, is a good film. But the cost of the good film is having a self-avowed sexual criminal in a position of power and influence in the film community for colleagues to work among. The cost of the film is to have those without the power and choices Dujardin has appear indifferent to such harms in order to succeed professionally, and for the outward effect of this appearance for other victims of gender-based violence to receive this appearance of indifference from the film industry. And the cost of the film is to have other films, not facilitated by people with this history, further marginalized by the communities that celebrate art.

Spotify and the Ethics of Music Streaming

Photo of the Spotify logo behind a band on a stage

Since the founding of Swedish company Spotify in 2006, music streaming has risen over the past decade to become one of the most popular ways to listen to music. According to the International Federation of the Phonographic Industry (IFPI), 54 percent of recording industry revenues are from digital sources, more than two-thirds of which are streaming, and streaming revenues have increased by 41.1 percent in the last year. At least 176 million people now use paid streaming subscriptions, and many more use free versions of services like Spotify.
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