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LIT-1303: Worth a Thousand Words: The Images of Copyright

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StatusActive — read 2026-10-20 (NOTE-1016) in full; worth reading as the standard statement that copyright law takes the written word as its model and so oscillates between treating images as transparent (their meaning obvious, a copy of reality) and as opaque (beyond analysis in words), of verbal overshadowing as a reason the substantial-similarity test cannot work, and of the proposal to replace that test with a reproduction right against exact or near-exact copies, leaving the rest to the derivative-works right. Read it knowing that it is US law as of 2011, that the cognitive findings are cited from the psychology literature rather than tested on legal factfinders, that the author flags the verbal-overshadowing effect as possibly smaller than first reported, and that the reform is stated without its implementation (n. 258).
Tagssociety-and-governance, cognition, translation
Cited as “paper” byNOTE-1016 — Tushnet — Worth a Thousand Words: The Images of Copyright

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Tushnet, R. (2012). Worth a Thousand Words: The Images of Copyright. Harvard Law Review, 125(3), 683–759.

Key takeaways

From the reading, NOTE-1016.

  • Transparent or opaque. Courts treat an image either as a window on reality whose meaning admits no debate, or as ineffable and beyond analysis. Both refuse to treat the image as a thing in its own right with a complicated relation to the real (pp. 686–687, 702).
  • The double standard in copyrightability. Any photograph is protected for the photographer’s choices, while a new typeface for a literary text is not (pp. 713–716). Courts protect “realism” weakly and “style” strongly, though realism is itself a style (pp. 724–733).
  • Describing changes seeing. Verbal overshadowing: putting a nonverbal stimulus into words lowers the accuracy of its memory and shifts judgments of it, without lowering confidence. Lawyers’ descriptions in litigation therefore change what factfinders see (pp. 733–738).
  • The reform. Abandon substantial similarity. Keep a reproduction right against exact or near-exact copies, judged by differences, and send the rest to the derivative-works right with a market test (pp. 738–740).
  • Words win. In comic-book authorship (Gaiman v. McFarlane) the writer of a stock description is made co-author of the drawn character (pp. 741–751). Fair use, built on textual quotation, handles whole-image copying badly (pp. 751–755).

Standing in the record

Filed on 2026-10-20 at the owner’s request, with Balganesh’s review of Drassinower (LIT-1291), as reading on what copyright law thinks a work is. It cites Lessig’s Remix (LIT-1298) for Read/Write culture and for the freedom to quote. Its bearing on the translation line (QUESTION-002, CLAIM-220, CLAIM-076) is set out in the reading.

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