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57 J. Copyright Soc'y U.S.A. 399 (2009-2010)
The Problem of Meaning in Non-Discursive Expression

handle is hein.journals/jocoso57 and id is 438 raw text is: The Problem of Meaning in Non-Discursive Expression 399 THE PROBLEM OF MEANING IN NON-DISCURSIVE EXPRESSION by ROB KASUNIC* Visual forms - lines, colors, proportions, etc. - are just as capable of articulation, i.e., of complex combination, as words. But the laws that govern this sort of articulation are altogether different from the laws of syntax that govern language. The most radical difference is that visual forms are not discursive. They do not present their constituents succes- sively, but simultaneously, so the relations determining a visual structure are grasped in one act of vision. Their complexity, consequently, is not limited, as the complexity of discourse is limited, by what the mind can retain from the beginning of an apperceptive act to the end of it. Of course, such a restriction on discourse sets bounds to the complexity of speakable ideas. An idea that contains too many minute yet closely re- lated parts, too many relations within relations, cannot be projected into discursive forms; it is too subtle for speech. A language-bound the- ory of the mind, therefore, rules it out of the domain of understanding and the sphere of knowledge.1 INTRODUCTION Imagine that a client walks into your office seeking help with a threat of lawsuit over a painting she created. The painting incorporated lyrics from a popular song from the 1970s and painted over those lyrics obscur- ing portions of the lyrics, but leaving many lines from the song visible. How would you approach the legal analysis of this situation? Would you study the painting to determine what its meaning or message is? Would you ask the author what the intended purpose of the use of the underlying work was? If the latter, would you also see the need to go to the author of the lyrics to determine what the song's message was? Would your ap- proach differ if the work incorporated a photograph or another painting *Adjunct Professor at the American University's Washington College of Law, the Georgetown Law Center, and the University of Baltimore School of Law, as well as Assistant General Counsel at the United States Copyright Office, Library of Congress. The views expressed in this article are my own and not the views of the U.S. Copyright Office or any other institution. I am indebted to my former stu- dent, Cole Sternberg, for the creation of a work that directly inspired this article, and to Professor Peter Jaszi who encouraged me to translate my thoughts into the present discourse. I am also indebted to Professor Marci Hamilton for her seminal work on art as speech, and this work builds upon the foundation that she provided, and to Professors Jessica Litman and Stacey Dogan for their thoughtful comments. 1 SUSANNE K. LANGER, PHILOSOPHY IN A NEw KEY: A STUDY IN THE SYMBOL- ISM OF REASON, RITE, AND ART 93 (1957).

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