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).

What Is HeinOnline?

With comprehensive coverage of government documents and more than 2,300 journals from inception on hundreds of subjects such as political science, criminal justice, and human rights, HeinOnline is an affordable option for colleges and universities. Documents have the authority of print combined with the accessibility of a user-friendly and powerful database.



Request a quote or trial

Learn more about HeinOnline's Government, Politics, and Law Package