The current test for copyright infringement requires a court or jury to assess whether the parties’ works are “substantially similar” from the vantage point of the “ordinary observer.” Embedded within this test are several assumptions about audiences and art that neuroaesthetics—the study of the neural processes underlying aesthetic behavior—calls into question. To illustrate the disconnect between the law’s understanding of aesthetic appreciation and the reality of our reactions to works of art, the chapter explores a recent high-profile copyright matter involving the rock anthem “Stairway to Heaven.” Under current law, no effort is made to select jurors with the same listening or viewing tastes as the target audience for the original work—in this case, fans of classic rock. Nor can expert witnesses aid the jury’s understanding of that target audience. Instead, the assumption seems to be that we all appreciate works in the same indescribable way and one person’s reaction is as good as another. In truth, the basic biology of aesthetic reaction changes markedly depending on familiarity, experience, and even gender, contradicting copyright law’s one size-fits-all-approach.

This chapter provides an account of why and how the dominant “atrocity aesthetic” model identified in the previous chapter has persisted, despite remaining itself, grounded in unstated and untested assumptions concerning the fundamental nature of the causal dynamics of mass harm causation. It does so by examining the substance, structure, and application of ICL in light of insights from social constructivist norm development theories, and research on the role aesthetic considerations play in individual and social meaning-making processes. Through this analysis, this chapter identifies a variety of factors within the substance and practice of ICL that encourage actors to rely heavily on aesthetic perception when identifying potential international crimes and assessing their relative gravity. These factors include: the complexity of many atrocity situations; the continued presences of considerable zones of ambiguity within ICL; the extreme selectivity of ICL investigations and prosecutions; and the spectacular visibility and self-evident nature of many historical, recent and ongoing situations involving the commission of genocide, crimes against humanity, and/or war crimes.

This chapter assesses the role aesthetics play in the social construction of dominant shared understandings of the so-called core crimes of ICL: genocide, crimes against humanity, and war crimes. It demonstrates how, since the inception of ICL, widely shared understandings of these crimes have remained grounded in an aesthetics of horrific spectacle, which I refer to as the “atrocity aesthetic.” That is, shared understandings of both atrocity and international crime are associated with spectacular acts of horrific violence and abuse, reflecting deeply held, if rarely articulated, assumptions concerning how genocide, crimes against humanity, and war crimes will manifest themselves and the means through which they may be committed.

In its emphasis on the feedback loops of top-down and bottom-up signal processing in the brain, and the exquisitely muddy area where they meet, the last century of psychology and neuroscience supports a model of aesthetic engagement wherein we meet the world halfway. As such, we ought to interrogate the apparati of our aesthetic engagements with equal fervor as we regard the pristine aesthetic objects themselves. In its unavoidable mustering of the totality of a person’s taste, expectation, and memory, as well as the social and political forces of the world around them, aesthetic engagement is thus far from a passive act. From traditions in art history that attribute creativity to the biographies of isolated geniuses to more recent offerings from neuroaesthetics that turn to the causative power of brain science, we explore several pitfalls of aesthetic engagement and interdisciplinarity, as well as possibilities for future avenues of inquiry that expand the engaged self to include more context.