Colour and Law

The impact of digital online law reporting, the remediation of the mode of transmission of legal judgements, has had a dramatic though in certain respects under scrutinised effect. Precedents now arrive in colour, full of pictures, CCTV footage, screengrabs of online contractual splashpages, links to film clips and websites. If the medium is the message, then the message has changed not least by virtue of the number of images that are relayed in the reports and in the fragments, the bites, nibbles, memes, microblogs, and non-fungible tokens that transmit parts of the collapsing whole. What then does the ‘visual turn’, the ‘viserbality’ of case reports, the affective force of colour, signal for law?

What Blackstone termed the necessary ‘judgment of the senses’, the material and sensory apprehensions of in vivo trials, takes on new meanings by virtue of the remediations that see law streamed, digitally fragmented, relayed in parts, circulated via new media, mobile optimised, hand-held, in motion, and in colour. The latter mentioned facet, the affect of hue, stain, tint and tincture gets overlooked in the residual post-ignition of legalism’s black letter text. In a confused defamation case, utilising CCTV footage of a car speeding in a residential zone, the Judge inserts vivid red arrows to point to a pedestrian casualty and yellow arrows to mark the complainant driver (Spicer v Metropolitan Police [2021] EWHC 1099). A graph of the car’s progress has red and orange brackets and ‘trigger points’. The colours added to the CCTV stills are unremarked, deemed self-evident, absorbed presumably into the linear regimentations, the dead letter of the judicial imagination of the page. The normative force and affective weight of the colours is literally overlooked. Their effect on judgement is unconscious.

In a recent US Supreme Court copyright infringement decision, the question was directly one of colour. The photographer Lynn Goldsmith was sued by the Warhol Foundation because she had complained about Warhol’s use of her photoportrait of the singer Prince in a series of images. Warhol had used a truncated and flattened version of her image, with changes in depth and minor details, for a large number of silkscreens, in the style of his more famous image of Marilyn Monroe. The silkscreen images both made changes to the monochrome portrait and superimposed dramatic patterns of colour in an extensive series. The Supreme Court majority looks through the colours, as if they are not there, and affirms the Court of Appeals decision which held that the Warhol silkscreens have infringed the source work by virtue of not being “fundamentally different” in aesthetic or “artistic purpose and character”. (Warhol Foundation v Goldsmith [2023]). There is an ironic mention of similarity of purpose being copyright law’s “bête noire”, but no discussion of colour beyond the unavoidable occasional reference to its being there. As the dissenting Judge Kagan points out: “The majority does not see … And I mean that literally. There is precious little evidence in today’s opinion that the majority has actually looked at these images …” Her point is that the iconic and genre generating work of the 1960s pop artist was about as transformative as it gets, and that this sea change in art was primarily in the use of colour.

The insensibility to colour is an instance of judicial and juridical boundary defending, of downcast eyes, and of insensibility in judgement. It is symptomatic. In Seeing a Colour Blind Future, Patricia Williams pointed poignantly to a fear of colour that led to ignoring it, to pretending that colour did not matter, and so unconsciously repeating a status quo in which white equated with normal and black with exoticism and danger. Implicit in such blind justice is not only the projection of favoured and disfavoured attributes to the colours, but a limitation to the monochrome. There is only black and white, two opposed poles of the spectrum, antinomic antipodes that pitch extremes against each other. Translated into legal judgement this insensibility exsanguinates the text and bleeds out of the reasoning into distortion and projection that ever threaten to eradicate the real of colour, the uniqueness of skin and tone, the dividuation of the individual. Only seeing the antinomic, no colour, all colour, the drained and the excessive, pitches imaginal stereotypes against each other. The intersectional points of corporeal reality, of mattering and manifestation are as we appear and how we are seen. The circumference of the real is sensible, on display, there to be seen in hue and glory if the blindfold is removed and the downcast eyes of justice learn to look beyond the monochrome of the page and admit the imagery that moves to judgement.