David Shields is the bestselling author of twenty books, including The Thing About Life Is That One Day You’ll Be Dead, and Reality Hunger: A Manifesto, which was named one of the best books of 2010 by more than thirty publications. His essays and stories have appeared in Harper’s, McSweeney’s, and Slate, and his writing frequently addresses issues of copyright and the legality of artistic appropriation.

His most recent release, War Is Beautiful, analyzes over a decade’s worth of front-page war photography from The New York Times to argue that although these photographs are often beautiful and always artful, they are filters of reality rather than the documentary journalism they purport to be.

Last week, JIPEL spoke with David about his new book, his stance on artistic license, and some recent developments in copyright law.

JIPEL: Your book, Reality Hunger: A Manifesto, received considerable praise for being ahead of its time in its stance on appropriation and artistic license. To construct the book, for example, you remixed quotations from a wide range of sources and then blended them into your own original writing. The book then encourages the reader to literally cut out all the citations appearing at the end. How do you view Reality Hunger and the attention surrounding it five years on?

DS: With all due modesty, I think Reality Hunger has in its own small way contributed, along with works by many other people—from lawyers like Lawrence Lessig at Harvard to visual artists like Christian Marclay or Glenn Ligon—to pushing those issues and questions forward.

What I was arguing for in Reality Hunger is the obliteration of distinctions between fiction and nonfiction, the overturning of laws regarding appropriation, and the creation of new art forms and even legal forms to fit the 21st century. I think the hyper-digitalization of the culture over the last five years since that book was published has made it even more obvious that we need a re-conception of laws regarding intellectual property, trademark, and copyright. And in this way, Reality Hunger almost seems old fashioned. But if it feels old fashioned it’s because the book has helped pushed the conversation forward.

JIPEL: How well do you think courts are keeping up with that conversation? What do you make of the Second Circuit’s ruling last month that the copying necessary to run Google Books is “transformative” and therefore protected by Fair Use?

I think it’s nothing but good news. In order to prepare a book like Reality Hunger and even War Is Beautiful, I had to become a kind of poor man’s lawyer. And obviously I think that transformation is at the heart of repurposing. I guess I’m happy the court wound up finding Google Books to be transformative, but I’m also surprised, because it’s not an artistic transformation taking place.

The kinds of questions the courts always ask in my understanding of this analysis are: One, is a commentary being made? Two, can the so-called average reader understand that a commentary is being made? And three, is the author making an effort to use as little quotation from the original as possible? If all of those criteria are met, then the artist has probably met that the crucial and beautiful criterion of transformation or transfiguration, which is in a way at the heart of any artistic expression, whether you are writing an autobiographical novel or you are doing some kind of repurposing. Transformation–that’s for me everything. As digital culture should turbocharge contemporary literary gestures, it should also turbocharge and transform our sense of what’s possible legally as regards the creative act.

JIPEL: With War Is Beautiful you argue that New York Times war photography pacifies viewers by depicting violence and horror aesthetically. Given that outcome, why do you think the Times runs this kind of material?

I try and lay out in the introduction in the book that there are many causes and reasons—from right wing think tanks pushing all media toward the center and right, to embedding a photojournalist with troops so that journalists are increasingly reluctant to run photos that convey anything other than war as a wallpaper or screensaver.

Underwriting all of that is the idea that The New York Times is printing the first draft of history, that it’s the so-called newspaper of record. Seymour Krim once called it ‘the commissar of the real.’ Part of that, to me, means the Times is not going to print something the U.S. government is completely not on board with, because the paper needs to have access to the highest levels of government. So it’s a very complicated relationship between the Times and the government and its readership.

On the one hand, the Times is sort of a fourth branch of government that creates the day’s news. But on the other hand, because the paper was criticized during World War II for being late to report the full extent of the Holocaust, it has hugely overcorrected in the last 70 years, taking in my view a very manly, bellicose stance on every war from Korea through the most recent wars. In my reading of the paper’s history, it’s done this to make sure that the center would never again not hold—so that the United States and The New York Times would always be working hand in hand. That’s the argument the book makes. But again, I would say there are many reasons why the Times runs pictures that to me aestheticize horror.

I do think the photos are sending the not-so-subtle message, and I considered calling the book this, that ‘war is heck.’ That war is a kind of pretty heck. This seems to me a really problematic lie that’s worth pointing out.

JIPEL: It’s interesting that you see The New York Times as being to the right politically, especially when a common perception of the paper is that it has often been critical of the Iraq War and other military action in the Middle East.

DS: Right. I kept on shaking my head and saying, “Really? really?” Is this The New York Times? Which is either neutral, or center, or maybe slightly center-left. These pictures belonged more properly in Stars and Stripes, the U.S. military newspaper. These pictures seemed like cheerleading, like flag waving. That was the contradiction that got me going.

JIPEL: If running war photos that are too aesthetic or beautiful is problematic, what would you suggest as a possible corrective?

That’s an interesting and open question, and I don’t pretend to have it all figured out. How much horror do we want? All I would say in argument is that the Times photos are wildly on the side of beautification and aestheticization. These pictures get nowhere near the stench of war, and I would argue that in all the pictures I looked at, I saw very few examples to counteract my reading.

 

 

Breck Wilmot is a J.D. candidate, 2017, at NYU School of Law.