Spring 2023

In his famous 1936 essay The Work of Art in the Age of Mechanical Reproduction, Frankfurt School theorist Walter Benjamin noted that the foundation of an artistic work’s authenticity and also much of its aesthetic power reside in a particular physical embodiment understood as original. This unique attribute of the art object, this halo of preciousness that marks it as authentic, is what Benjamin referred to as its “aura.” In this Article, we pursue Benjamin’s idea and consider how it applies in today’s digital environment where reproduction technologies have grown immensely more powerful. It turns out that ubiquitous reproduction, both mechanical and digital, has not led to the withering away of aura. It has, if anything, strengthened our desire for auratic experience and has also provoked new strategies to produce and sustain aura or some simulacrum of it.

We describe an environment in which artifacts are promiscuously reproduced but where aura persists or is even manufactured. We show that producers seek to create an auratic experience for works of artistic craftsmanship or even for more mundane consumer products — tables, chairs, shoes, automobiles, watches, bottles of wine, or salami. Strategies for producing auratic experience are not necessarily connected to the identification of an original or authentic copy. In fact, in today’s world where technology proliferates copies by design, we see efforts — most notably, perhaps, in the strange new market for NFTs — to produce aura without privileging any particular copy of a work.

We outline several examples of the modern manufacture of aura. In all these cases, auratic experience is engineered through a combination of reproduction techniques, social norms, community building, and interlocking business and legal strategies. Most of these strategies leverage intellectual property (“IP”) protections in some way. We explore whether IP’s connection to the manufacture of auratic experience can serve as another consequentialist justification for IP — at least for copyrights, design patents (as opposed to utility patents), trademark rights in product design (often referred to as “trade dress”), and trademarks in general. We analyze what happens to the justification, scope, and boundaries of IP protection if the goal is not to incentivize the creation of products or services, but to instill products with meaning in a bid by producers to head off commodity competition in favor of differentiated markets in which products are reframed as cultural artifacts.