speech and respect - College of Social Sciences and International ...

The Illusion of Private Freedom
Rogers's famous kitsch postcard of a couple with eight German
shepherds, the judge found copyright infringement, angrily dismissing
Koons's boast that "it was only a postcard photo and I gave it
spirituality, animation and took it to another vocabulary." 54 Art
Buchwald's successful suit against Eddie Murphy and Paramount
Pictures for stealing the concept for "Coming to America" was only
the latest in a series of Hollywood tiffs stretching back at least to
Orson Welles's "Citizen Kane." 55 Courts are beginning to protect
more subtle forms of creativity. Six years after the Beatles won a $10
million judgment against Beatlemania Inc. for a stage show and
movie featuring four impersonators, Bette Midler won $400,000
against Young & Rubicam for hiring her former backup singer to
imitate her style in a television commercial for Lincoln-Mercury
cars. 56 Because rap music incorporates sound-bytes from other
recordings, copyright owners have begun to sue for infringement. 57
Discovery as well as creation can confer rights: the full text of the
Dead Sea Scrolls was withheld from the public for 45 years. 58 British
libraries pay authors each time their books are borrowed; California
artists earn royalties whenever their work is resold. Some cineastes
argued that directors should be able to veto "colourisation" of their
black-and-white films. Technological advances constantly compel
the state to redefine property rights: photography, lithography,
computer software, genetically engineered plants and animals,
records, analog and now digital casettes, compact disks, and video
recorders. 59 State action can deny speakers the right to market their
words. The "Son of Sam" law (named after a New York mass
murderer), which prohibits criminals from selling their stories, has
been applied to such famous convicts as Jean Harris (who murdered
Dr. Herman Tarnower, author of the Scarsdale diet), Sidney Biddle
Barrows (the "Mayflower Madam"), and Jack Henry Adam (the
recidivist murderer and Norman Mailer protege). After the law was
invalidated in a case brought by Henry Hill, a mafioso who earned
$96,000 for the story Nicholas Pileggi turned into "Wiseguy," New
York Governor Mario Cuomo backed an amended version he hoped
would withstand constitutional scrutiny. 60
My purpose is not to criticise these rules but merely to demonstrate
that the state inevitably encourages and discourages expression
by conferring or withholding property rights.
B. Has the Fall of Communism "Freed" Speech?
If the state is inherently oppressive and civil society the domain of
freedom, as liberal theory posits, the demise of communism should
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