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The of Intellectual Property

Justin Hughes*

Reprinted with permission of the publisher

Copyright (c) 1988 Georgetown University Law Center and Georgetown Law Journal

December, 1988 77 Geo. L.J. 287

security and income from social programs. n2 * Luce Scholar and Mellon Fellow in the A less frequently discussed trend is that Humanities, 1988. B.A. 1982, Oberlin College; historically recognized but nonetheless J.D. 1986, Harvard University. atypical forms of property, such as intellectual Use of this article without the permission of Georgetown property, are becoming increasingly important University Law Center is expressly prohibited. relative to the old paradigms of property, such as farms, factories, and furnishings. As our As a slogan, "property" does not have the attention continues to shift from tangible to siren's call of words like "freedom," "equality," intangible forms of property, we can expect a or "." The Declaration of Independence growing jurisprudence of intellectual property. speaks boldly of , but only obliquely of The foundation for such a jurisprudence property -- through the imagery of the "pursuit must be built from an understanding of the of Happiness." n1 This, however, should not philosophical justifications for property rights obscure the that about property have to ideas -- a that has never been played a central role in shaping the American addressed systematically in American legal legal order. For every Pilgrim who came to the literature. Rights in our society cannot depend New World in search of religious freedom, for their justification solely upon statutory or there was at least one colonist who came on constitutional provisions. As Justice Stewart the promise of a royal land grant or one slave said in Board of Regents v. Roth, "[p]roperty compelled to come as someone else's property. interests . . . are not created by the In the centuries since our founding, the Constitution. Rather they are created and their of property has changed dramatically dimensions are defined by existing rules and in the United States. One repeatedly understandings that stem from an independent mentioned change is the trend towards source. . . ." n3 This article analyzes the treating new things as property, such as job "independent sources" that apply to intellectual property by testing whether Page 2 77 Geo. L.J. 287, * traditional theories of property are applicable of "mirroring" is a powerful one that recently to the very untraditional field of intellectual has inspired both philosophers and legal goods. thinkers. n5 The latter usually have been concerned with the normative question of when Part I of this Article maps out this field by and how the law should mirror . This describing intellectual property. It then article's concern differs in two respects. First, explores and explains the justifications for its reflection is between law and philosophical ascribing ownership of such property. The theory, not between law and pragmatic reality. first justification it presents is the Lockean Second, this article is intended mainly to be "labor theory," which informed our descriptive and not prescriptive. It is Constitution's vision of property. This labor concerned primarily with answering one justification can be expressed either as a question: Does the law of intellectual property normative claim or as a purely incentive- reflect general theories of property? In based, instrumental theory. Both of these answering this question, however, I invariably aspects of the labor theory are examined in fall into discussions motivated by an image of Part II. what the theory should be and, reflecting from The main alternative to a labor justification that image, of what the law should be. is a "personality theory" that describes In the end, I suspect that many people who property as an expression of the self. This think about property rights are propelled by theory, the subject of [*289] Part III, is the same forces that provoked Proudhon to relatively foreign to Anglo-Saxon proclaim that "all Property is theft." n6 His jurisprudence. Instead, its origins lie in slogan, however, is incoherent if taken literally: continental philosophy, especially the work of the of theft presupposes that someone else Georg Wilhelm Friedrich Hegel. n4 Part III holds legitimate title. n7 If Proudhon [*290] argues, however, that more familiar civil rights meant to exempt certain property from his doctrines, specifically rights of expression and indictment, then the original dilemma is privacy, also can provide a foundation for merely pushed back to the question of defining personality theory in intellectual property. and justifying the exemption. One of this This civil rights justification serves, in large article's fundamental is that part, as a bridge from American legal doctrines property can be justified on either the labor or to the more abstract personality justification. personality theories and that it should be When I say "justification," I do not mean justified with both. Properly elaborated, the that every aspect of our system of intellectual labor and personality theories together exhaust property be tortured on some rack of the of morally acceptable justifications of theoretical validity. Instead, I hope to show intellectual property. In short, intellectual that the existing law supports, to varying property is either labor or personality, or it is degrees, the credibility of different theories of theft. property and that these theories support, to I. WHAT COUNTS AS INTELLECTUAL varying degrees, the validity of existing laws. PROPERTY? Some might call this a funhouse : two things becoming more acceptable by In many quarters, property is viewed as an mirroring one another. In fact, this metaphor inherently conservative concept -- a social Page 3 77 Geo. L.J. 287, * device for the maintenance of the status quo. against the predilections of the propertied In the eighteenth century, Edmund Burke that had been their patrons. argued that property stabilized society and But this is only part of the . Much prevented political and social turmoil that, he intellectual property is produced only after believed, would result from a purely considerable financial investment, whether it meritocratic order. n8 Property served as a be in the research laboratory or in the graduate counterweight protecting the class of persons education of the scientist using the facility. It who possessed it against competition from would not be surprising if historical studies nonpropertied people of natural ability and showed that most holders of copyrights and talent. To Burke, the French National patents come from at least middle-class Assembly -- dominated by upstart lawyers backgrounds. For every Abraham Lincoln from the provinces -- exemplified the risk of n12 or Edmonia Lewis n13 who lifted him or disorder and inexperience of an unpropertied herself from a simple background, there is a leadership. n9 In contrast, the British Wittgenstein or Welty who enjoyed comfort parliament, a proper mix of talented during his or her formative years. One cannot commoners and propertied Lords, ruled call the history of intellectual property a purely successfully. n10 proletarian struggle. While ancient Roman The conservative influence of property laws afforded a form of copyright protection to does not, however, depend on primogeniture authors, n14 the rise of Anglo-Saxon or even inheritance -- features that gave copyright was a saga of publishing interests property a valuable role in Burke's political attempting to protect a concentrated market system as well as in the political theories and a central government attempting to apply advanced by Hegel and . n11 Within a a subtle form of censorship to the new single lifetime, property tends to make the technology of the printing press. n15 property owner more risk-averse. This In the final analysis, intellectual property aversion applies both to public decisions shares much of the origins and orientation of [*291] affecting property, such as taxes, and to all forms of property. At the same , personal decisions that might diminish one's however, it is a more neutral institution than property, such as investment strategies and other forms of property: its limited scope and career . Inheritance and capital duration tend to prevent the very appreciation are only additional characteristics accumulation of wealth that Burke of traditional notions of property that tend to championed. n16 Because such accumulation stabilize social stratification. is less typical, the realm of intellectual Intellectual property is far more egalitarian. property has less of the laborer/capitalist Of limited duration and obtainable by anyone, hierarchy of Marxist theory. The breakthrough intellectual property can be seen as a reward, patent that produces a Polaroid company is an empowering instrument, for the talented more the exception than the rule. The rule is upstarts Burke sought to restrain. Intellectual the modestly successful novelist, the minor property is often the propertization of what we [*292] poet, and the university researcher -- all call "talent." It tends to shift the balance toward of whom may profit by licensing or selling the talented newcomers whom Burke their creations. Furthermore, intellectual mistrusted by giving them some insurance property may be a liberal influence on society Page 4 77 Geo. L.J. 287, * inasmuch as coming to own intellectual are generally accepted baselines of protection. property is often tied to well-educated. Some countries extend protection well beyond If people become increasingly progressive with these baselines, while others benignly ignore increasing education, intellectual property enforcing or intentionally cut back these confers economic power on men and women general . of talent who generally tend to reform society, There is good reason to think that these not because they are haphazard Burkian differences among national legal systems do goblins, but because they have well-informed not represent profound differences in the convictions. underlying notions of what intellectual At the most practical level, intellectual property is all about. Developing countries property is the property created or recognized may fail to promulgate or enforce intellectual by the existing legal regimes of copyright, property laws simply because these laws are patent, trademark, and trade secret. n17 We not critical to maintaining immediate social also must include property recognized by order. Other developing countries similar legal regimes. For example, federal law intentionally deny protection to intellectual now protect original semiconductor masks. property as part of their official development n18 "Gathered " is another genre of strategy. Taiwan's longstanding refusal to intellectual property. Copyright law protects honor copyrights is an infamous case, n24 but the arrangement of the contents of usually the failure to protect intellectual telephone directories and reference works, property rights has been more limited and n19 while other forms of gathered information tailored to particular fears of foreign economic may have quasi-property status under domination. n25 Such elimination of International News Service v. Associated Press. intellectual property protection [*294] does n20 Like most subjects, intellectual property not reflect a different conception of intellectual has grey zones on the periphery, such as the property so much as it does a countervailing right to publicity -- whether, in property style, social policy. In the final tally, there is at least someone can control his public image. n21 as much continuity in different societies' understandings of intellectual property as in While this article is devoted to American their respective conceptions of freedom of intellectual property, a positivist's of expression, equality, and property in general. intellectual property need not be limited to citations to the United States Code. First, A definition of intellectual several well-subscribed international treaties property might begin by identifying it as create international standards for what counts nonphysical property which stems from, is as intellectual property. n22 At the [*293] identified as, and whose is based upon level of national laws, even socialist economies some idea or ideas. Furthermore, there must either have recognized roughly similar be some additional element of novelty. parameters to intellectual property or at least Indeed, the , or res, of intellectual have averred their subscription to the general property may be so new that it is unknown to idea of legal regimes for copyright, trademark, anyone else. The novelty, however, does not and patent. n23 This does not mean that there have to be absolute. What is important is that is international uniformity in the protection at the time of propertization the idea is granted to intellectual property, only that there to be generally unknown. The res Page 5 77 Geo. L.J. 287, * cannot be common currency in the intellectual art; the actors screamed about the freedom of life of the society at the time of propertization. their art, and there was much public debate about constitutional protection of speech, The res is a product of cognitive processes theatre versus film, and the evilness of and can exist privately, known only to its publishing houses. n27 creator. This private origin is a reasonable means to distinguish the res of intellectual Even without such debates, intellectual property from the res of other intangible property -- like all property -- remains an properties such as stock or stock options. amorphous bundle of rights. However, there Although the "inputs" for the res of intellectual are some clear limits to the bundle of rights we property are social -- the education and will drape around an idea. First, these rights nurture of the creator -- the assembling of the invariably focus on physical manifestations of idea occurs within the of the creator the res. In the words of one commentator, "[a] which produces something beyond those fundamental common to all genres of inputs. Sometimes the addition is more effort intellectual property is that they do not carry than creativity, as in compilations of any exclusive right in mere abstract ideas. information or number-crunching. Some Rather, their exclusivity touches only the people disfavor describing such efforts as concrete, tangible, or physical embodiments of "ideas," but I will use "idea" to refer to this an ." n28 broad of the res, understanding "idea" Even regarding physical embodiments, to be shorthand for the unique product of there are limitations on intellectual property cognitive effort. rights. Copyrighted materials may be copied Intellectual property also may be thought within the broad limits of statutorily of as the use or the value of an idea. Where X recognized "fair use." n29 "Fair use" focuses is the idea, intellectual property is defined by on personal use or use which is not directly for the external functions of X. The creator profit. Yet such uses can be public, such as introduces the idea into society and, like Henry quoting another's work. Although patents do Higgins, he seeks to control the social calendar not have a similar exemption for personal use, of his creation. This Pygmalion story is more patent protection is subject to a judicially apropos than first meets the eye. The creator's created exception: the patent holder has no control is never complete and he may find right against the person whose "use is for himself -- like Pygmalion, Higgins, or Dr. experiments for the sole purposes of gratifying Frankenstein -- fighting to control that which a philosophical taste or curiosity or for he has introduced into the world. The most instruction and amusement." n30 Such interesting areas of intellectual property law limitations are motivated, in part, by tend to be just those places in which people are pragmatic considerations as to the difficulty of trying to hold on to their creations against policing such infringements. These limitations, those who want the creation unfettered from however, also serve the perhaps primary its master. For example, in 1985, Samuel objective of intellectual property: to "promote Beckett challenged the Harvard American the Progress of Science and useful Arts" n31 Repertory Theatre's [*295] controversial by increasing society's stock of knowledge. production of Beckett's Endgame. n26 The Both concerns are best served by limiting playwright screamed about the integrity of his property rights over ideas. Page 6 77 Geo. L.J. 287, *

Yet even these limited rights are not how different Western society would be if it draped over all ideas. Everyday ideas, like had developed on the basis of a one-hundred- thinking to walk the dog on a shorter leash or percent inheritance tax. This to go to the top of the Eiffel Tower on a first powerfully distinguishes intellectual property date, are not the subject of intellectual property from other property. The remainder of the rights. At the opposite extreme, the most article explains, at various junctures, how this extraordinary ideas or discoveries are also sunset enhances the social neutrality of beyond the ken of legal protection: the intellectual property rights and improves the calculus, the Pythagorean [*296] theorem, the fit between these laws and the theories by idea of a fictional two-person romance, the which they can be justified. cylindrical architectural column, or a simple II. A LOCKEAN JUSTIFICATION algorithm. These extraordinary ideas usually are broadly applicable , but they can Reference to Locke's Two Treatises of be very specific -- as in the case of accurate Government is almost obligatory in essays on details on a navigation map. I will show how the constitutional aspects of property. For justifications of intellectual property can Locke, property was a foundation for an account for denying the creators of these sorts elaborate vision that opposed an absolute and of ideas property rights over them. irresponsible monarchy. n32 For the Founding Fathers, Locke was a foundation for These limits might lead one to conclude an elaborate vision opposed to a monarchy that intellectual property is especially positivist that was less absolute, but seemed no less in origin, at least compared to property rights irresponsible. over land and chattels. That conclusion may be myopic. Many physical objects also are Locke's theory of property is itself subject beyond appropriation, like navigable rivers, to slightly different interpretations. One beaches, and the airspace in congested urban interpretation is that society rewards labor areas. The use of physical property is with property purely on the instrumental circumscribed by laws on easements, zoning, grounds that we must provide rewards to get and nuisance. Even the apparent ability to labor. In contrast, a normative interpretation enforce exclusivity over physical property may of this labor theory says that labor should be pose less of a difference than one would think. rewarded. This part of the article argues that It is certainly easier for me to enforce my Locke's labor theory, [*297] under either exclusivity over my apartment than over my interpretation, can be used to justify short story, but what about my ability to intellectual property without many of the exclude others from a ten-thousand-acre problems that attend its application to physical Colorado ranch? Is the patent holder worse off property. than the holder of distant and extensive real A. LOCKE'S PROPERTY THEORY estate parcels? The general outline of Locke's property Perhaps the greatest difference between the theory is familiar to generations of students. In bundles of intellectual property rights and the Chapter V of the Second Treatise of Government, bundles of rights over other types of property Locke begins the discussion by describing a is that intellectual property always has a self- state of in which goods are held in defined expiration, a built-in sunset. Imagine common through a grant from God. n33 God Page 7 77 Geo. L.J. 287, * grants this bounty to humanity for its America, he says, illustrate the continuing enjoyment but these goods cannot be enjoyed applicability of this justification of property. in their natural state. n34 The individual must n38 convert these goods into private property by Until this point in his exposition, Locke exerting labor upon them. This labor adds does not explore the notion of labor and the value to the goods, if in no other way than by desert it creates. His theory is largely a allowing them to be enjoyed by a human justification by negation: under his two being. conditions there are no good reasons for not Locke proposes that in this primitive state granting property rights in possessions. This there are enough unclaimed goods so that has led scholars such as Richard Epstein to a everyone can appropriate the objects of his possession-based interpretation of Locke. labors without infringing upon goods that Epstein argues that "first possession" forms the have been appropriated by someone else. n35 basis for legal title and believes that this is the Although normally understood as descriptive heart of Locke's position. n39 For Epstein, the of the common, the enough and as good talk of labor is a smokescreen hiding the condition n36 also is conceptually descriptive fundamental premise of Locke's argument that of human . In other words, this a person possesses his own body: condition is possible because the limited Yet if that possession is good enough to capacities of humans put a natural ceiling on establish ownership of self, then why is not how much each individual may appropriate possession of external things, unclaimed by through labor. others, sufficient as well? The irony of the The enough and as good condition protects point should be manifest. The labor theory is Locke's labor justification from any attacks called upon to aid the theory that possession is asserting that property introduces immoral the root of title; yet it depends for its own inequalities. Essentially the enough and as success upon the that the good condition is an equal opportunity possession of self is the root of title to self. n40 provision [*298] leading to a desert-based, but It is unclear why Epstein should reach this noncompetitive allocation of goods: each person conclusion. Locke never mentions one's can get as much as he is willing to work for possession of one's body as the basis for one's without creating meritocratic competition property in one's body; he begins simply by against others. asserting one's body is one's property. n41 Yet What justly can be reduced to property in Epstein connects property to possession by this primitive state also is limited by Locke's saying, "[t]he obvious line for justification is introduction of the non-waste condition. This that each person is in possession of himself, if condition prohibits the accumulation of so not by or [*299] conscious act, then by much property that some is destroyed without a kind of natural necessity." n42 being used. n37 Limited by this condition, Epstein directly, albeit unknowingly, Locke suggests that even after the primitive points out a critical difference: we are not in state there sometimes can be enough and as possession of any particular external objects by good left in the common to give those without a kind of natural necessity. If we were, the property the opportunity to gain it. Spain and need for property laws would be greatly Page 8 77 Geo. L.J. 287, * diminished. Each person, like a tree, would be common stock of potential property. To allow rooted to his own parcel of external objects; goods to perish after appropriating them -- and this would be "of natural necessity," and no thereby removing them from a state in which one would try to displace another from his others could have made use of them -- violates natural and necessary attachments. Precisely "the Law of Nature." n46 Stripped of its because "natural necessity" goes no further Lockean vestments, this non-waste principle than the mind/body link, reliance upon the can also be understood as an [*300] impulse "possession" of body as a foundation for a to avoid labor when it produces no benefits. possession-based justification of property is a The waste is not just spoiled food, but the bit disingenuous. n43 energy used gathering it. The non-waste condition, however, allows the individual to Epstein's possession-based theory also barter for things which he can enjoy, which seems inaccurate because Locke offers a may be more durable, and which have been positive justification for property that gathered as surplus by other individuals buttresses his labor theory. He suggests that similarly motivated. granting people property rights in goods procured through their labor "increase[s] the Finally, Locke justifies the allocation of common stock of mankind," n44 a utilitarian property in this more advanced money argument grounded in increasing mankind's economy by tacit consent. For Locke, positive collective wealth. laws that manifest "disproportionate and unequal possession of the Earth" derive their This justification is called into question by authority from the tacit consent that people an obvious problem. If the new wealth have given to be governed. n47 Modern remains the private property of the laborer, it writers have debated how much importance does not increase the common stock. If it can should be put on this hypothetical consent. be wantonly appropriated by the social mob, n48 In the final analysis, Locke's overall the laborer will realize quickly that he has no scheme for property can be viewed as an alloy motivation to produce property and increase of the labor and tacit consent theories. n49 Yet the common stock. One solution would be to it is the labor justification that has always been rely upon the laborer's donations to the considered uniquely Lockean. Accordingly, common, but increasing the common stock when I refer to a "Lockean" theory of property, cannot be made to depend on supererogatory I will be referring to his labor justification. acts. The better solution -- one that Locke in fact advocated -- is to make this added value We can justify propertizing ideas under potentially part of the common stock by Locke's approach with three propositions: first, introducing the money economy. n45 that the production of ideas requires a person's labor; second, that these ideas are appropriated In depicting the transition to a money from a "common" which is not significantly economy, Locke assumes that: (1) the devalued by the idea's removal; and third, that individual is capable of appropriating more ideas can be made property without breaching than she can use; (2) the individual will be the non-waste condition. Many people motivated to do so; and (3) nothing is wrong implicitly accept these propositions. Indeed, with this other than waste. Locke condemned the Lockean explanation of intellectual waste as an unjustified diminution of the property has immediate, intuitive appeal: it Page 9 77 Geo. L.J. 287, * seems as though people do work to produce Of course, there are clear instances in ideas and that the value of these ideas -- which ideas seem to be the result of labor: the especially since there is no physical component complete plans to a new suspension bridge, the -- depends solely upon the individual's mental stage set for a Broadway show, a scholar's "work." The following sections of this article finished dissertation involving extensive test the strength of such a vision. research, or an omnibus orchestration of some composer's concertos. The peripheral realms B. LABOR AND THE PRODUCTION OF of intellectual property also provide examples IDEAS in which the object immediately seems to be A society that believes ideas come to the product of tremendous work: news stories people as manna from heaven must look gathered and disseminated by wire services, or somewhere other than Locke to justify the stock indexes calculated by a financial house. establishment of intellectual property. The The images of Thomas Edison inventing the labor theory of property does not work if one light bulb and George Washington Carver subscribes to a pure "eureka" theory of ideas. researching the peanut come to mind as Therefore, the initial question might be framed examples of laborious idea-making. As society in two different ways. First, one would want has moved toward more complicated to determine if society [*301] believes that the technologies, the huge scales of activity production of ideas requires labor. Second, required by most research, involving time, one might want to know whether or not, money, and expertise, have made the regardless of society's beliefs, the production of autonomous inventor a rarity. This trend ideas actually does require labor. This second strengthens the image of idea-making as labor question is the metaphysical one; in its akin to the mechanical labor that operates shadow, society's belief may appear industrial assembly lines. superficial. It is not. We are concerned with a Yet as we move toward increasingly large justification of intellectual property, and social research laboratories that produce patentable attitudes -- "understandings" as Justice Stewart ideas daily, we should not be so entranced by said -- may be the only place to start. the image of a factory that we immediately Some writers begin with the assumption assume there is labor in Silicon Valley. Locke, that ideas always or usually are the product of after all, begins his justification of property labor. n50 For example, Professor Douglas with the premise that initially [*302] only our Baird assumes that although one cannot bodies are our property. n53 Our handiwork physically possess or occupy ideas, property in becomes our property because our hands -- ideas is justified because people "have the right and the energy, consciousness, and control that to enjoy the fruits of their labor, even when the fuel their labor -- are our property. n54 The labors are intellectual." n51 He believes the point here is not validation of Epstein's link of great weakness in this justification is that property with bodily self-possession but rather others also need free access to our ideas. n52 the more general observation that Locke linked In Lockean terms, this is an "enough and as property to the product of the individual good" problem. Baird, however, never person's labor. We must examine the considers the prospect that idea-making may production of ideas more fully if we expect to not involve labor. Page 10 77 Geo. L.J. 287, * show that their creation involves Lockean of sweat on the brow. Hence it is that the least labor. imaginative work counts most securely as labor. The squires and merchants of the 1. The "Avoidance" View of Labor seventeenth century were far from idle men, If we surveyed people on their attitudes but administration and entrepreneurship do toward idea-making, what might we find? not so obviously qualify for the title of labor as First, we would probably find that many the felling of trees and the planting of corn. people who spend time producing ideas prefer n57 this activity to manual labor. It probably also [*303] In an understanding of labor based is true that many manual laborers would on the notion of "avoidance," labor is defined rather spend time producing ideas than as an unpleasant activity not desirable in and performing manual labor. That an idea-maker of itself and even painful to some degree. prefers idea-making to farming, roofing, or putting screws in widgets suggests that idea- At this point we can separate the making may not be viewed as labor in the normative proposition of the labor theory from same way that the latter activities are. It may the instrumental argument with which it is share this distinction with such professions as usually identified. n58 The normative competitive sports. Yet at least at some level of proposition states: the unpleasantness of labor desires, the idea-maker probably prefers to be should be rewarded with property. In this on vacation than to be in his office or proposition, the "should" is a moral or ethical laboratory. For most people creation is less fun imperative, which is not based on any than recreation. Although "idea work" is often consideration of the effects of creating property exhilarating and wonderful, it is something we rights. In comparison, the instrumental generally have to discipline ourselves to do, argument is directly concerned with those like forcing oneself to till the fields or work the effects. It proposes that the unpleasantness of assembly lines. labor should be rewarded with property because people must be motivated to perform labor. This discussion depicts labor in one In principle, the two propositions can coexist particular way: something which people avoid but neither requires acceptance of the other. In or want to avoid, something they don't like, an practice, however, the two not only coexist, but activity they engage in because they must. the instrumental argument often seems to be Lawrence Becker aptly has described Locke's treated as a "proof" of the normative argument. view of labor as a "proposal that labor is The instrumental claim has a utilitarian something unpleasant enough so that people foundation: we want to promote labor because do it only in the expectation of benefits." n55 labor promotes the public good. Once we In fact, Locke himself refers to labor as "pains." recognize that property is needed to motivate n56 work for the public good, we may transform One commentator has observed that this the reward into a right just as we often convert concept of labor is more likely the product of systematically granted benefits into rights than logical rigor: deserved by the recipients. Perhaps we do this [Comparing labor and property] is because it would be inconsistent and complicated by an equivocation about the idea disconcerting to say that some systematically of labor, which is dominated by the metaphor granted benefit is not deserved. Perhaps we Page 11 77 Geo. L.J. 287, * just make the transition from instrumental to The wide acceptance of the instrumental normative propositions through lack of argument suggests wide acceptance of the attention. For example, in the 1954 case Mazer premise that idea-making is a sufficiently v. Stein, n59 the Court said: unpleasant activity to count as labor that requires the inducement of reward. The economic philosophy behind the Admittedly, this hardly is a tight argument. clause empowering Congress to grant patents Idea-making just as easily could be a neutral and copyrights is the conviction that activity or even a pleasant activity whose encouragement of individual effort by personal pursuit individuals covet. gain is the best way to advance public welfare through the talents of authors and inventors . . The issue is not whether idea-making is an . Sacrificial days devoted to such creative absolutely unpleasant activity, but whether it activities deserve rewards commensurate with is comparatively less pleasant and less the services rendered." n60 desirable than other activities. n65 As Peter Rosenberg writes in his treatise on patent law, As Mazer demonstrates, it is strikingly easy "[w]hile necessity may be the mother of to move from an instrumental discussion of invention, the quest for new products and consequences to an assumption of just technologies must fiercely compete against the rewards. demands for current consumption." n66 The Indeed, when the normative proposition judgments we make about most forms of labor emerges in court opinions it is usually used as are not that they are absolutely unpleasant, but an adjunct to the instrumental argument. The that they are relatively unpleasant. For most instrumental argument clearly has dominated people, raking leaves is relatively unpleasant official pronouncements on American compared to sitting and watching them fall. copyrights and patents. Even the Similarly, there is a widespread attitude that Constitution's copyright and patent clause is idea-making is not such a pleasant activity that [*304] cast in instrumental terms. Congress is people will choose it, by itself, over recreation. granted the power to create intellectual At least, people will not choose it in sufficient property rights in order "[T]o promote the numbers to [*305] meet our collective needs. Progress of Science and useful Arts." n61 As This same characterization applies to labor in President Lincoln remarked, "the inventor had the fields, the forests, and the factories. That is no special advantage from his invention our best grounds for assuming that idea- [under English law prior to 1624]. The patent making is a form of labor. system changed this . . . [I]t added the fuel of If we believe that an avoidance theory of interest to the fire of genius in discovery and labor justifies intellectual property, we are left production of new and useful things." n62 In with two categories of ideas: those whose almost all of its decisions on patents, the production required unpleasant labor and Supreme Court has opined that property rights those produced by enjoyable labor. Are the are needed to motivate idea-makers. n63 This latter to be denied protection? This strange instrumental justification is the heart of what result applies to all fruits of labor, not just Judge Easterbrook has called the Supreme intellectual property. Court's "Ex Ante Perspective on Intellectual Property." n64 2. The "Value-Added" Labor Theory Page 12 77 Geo. L.J. 287, *

Another interpretation of Locke's labor respective Writing and Discoveries" in order justification can be called the "labor-desert" or "[t]o promote the Progress of Science and "value-added" theory. This position "holds useful arts." n70 that when labor produces something of value The value-added theory usually is to others -- something beyond what morality understood as an instrumentalist or requires the laborer to produce -- then the consequentialist [*306] argument that people laborer deserves some benefit for it." n67 This will add value to the common if some of the understanding of property does not require an added value accrues to them personally. analysis of the idea of labor. Labor is not Paralleling the discussion of the avoidance necessarily a process that produces value to theory of labor, it is possible also to treat the others. It is counterintuitive to say labor exists value-added theory as a normative only when others value the thing produced. It proposition: people should be rewarded for also would be counter to Locke's example of how much value they add to other people's the individual laboring and appropriating lives, regardless of whether they are motivated goods for himself alone. The "labor-desert" by such rewards. theory asserts that labor often creates social value, and it is this production of social value Some kinds of intellectual property have that "deserves" reward, not the labor that appeared only in contexts in which the produced it. property represents a value added to the society. International News Service v. Associated The legal history of intellectual property Press n71 inaugurated "quasi-property" contains many allusions to the value-added protection for gathered information. The theory. The legislative histories of intellectual opinion merged unfair competition doctrine property statutes refer repeatedly to the value and property arguments to prohibit one party's added to society by investors, writers, and appropriation of the product of another party's artists. Indeed those judicial or legislative labor. n72 Such appropriations occur only statements that appear to fuse the normative when the party taking the product believes it and instrumental propositions of the labor to have some value. To state the proposition justification are perhaps based, unknowingly, differently, one could not argue that it is unfair on the value-added theory. In Mazer v. Stein competition to take away someone's worthless n68 the Court appeared to be saying that the labor. enhancement of the public good through the efforts of intellectual laborers made the Unfair competition is the purloining of creators of intellectual property worthy of another's competitive edge -- an "edge" that reward. n69 In other words, their contribution has social value. Insofar as protection of to the public good justified the reward of gathered information rests on an unfair property rights. Earlier I noted that the competition model, it necessarily relies on the Constitution's copyright and patent clause is value-added justification. If the fruits of labor an instrumental provision. More precisely, it is have no prospective value, stealing those fruits an instrumentalist provision aimed at may be socially unkind, but not competitively rewarding people who bring added value to unfair. Similarly, trade secret infringement the society. Little else could have been meant cases result from claimed losses of social value by giving people "the exclusive Right to their by the petitioner. No court has ever had to Page 13 77 Geo. L.J. 287, * face a test case of a vigorously defended but jurisprudence, n76 modern tests for the utility worthless trade secret. criterion support a value-added interpretation. n77 Most courts now hold that a "step There is a very simple reason why the legal forward" n78 or an "advance over prior art" doctrines of unfair competition and trade n79 is a critical part of the utility requirement. secret protection are inherently oriented But these tests seem to blur the utility criterion toward the value-added theory: they are court- with the "novelty," "obviousness," and created doctrines and people rarely go to court "operability" requirements of patent grants. unless something valuable is at stake. When intellectual property is created more It is not necessary to separate these modern systematically, such as through legislation, the standards in order to appreciate how they resulting property doctrines seem less generally bear on the value-added question. singularly oriented toward rewarding social Stated succinctly, they require that an value. invention be enough of an advance over the previous art so that the average person Indeed, patents provide a vexing example schooled in the art would not consider the of conflicting reliance on the value-added advance immediately obvious, but also would theory. To receive patent protection, a new understand how the invention improves upon invention must meet a standard of "usefulness" previously available technology. n80 The or "utility," n73 a criterion which suggests invention need not function perfectly, but it that the invention must manifest some value must operate effectively enough that a person added to society. On closer inspection, the schooled in the art could make it perform the of this criterion is not so clear. At one tasks described in the patent application. n81 extreme, it has been expressed as being devoid of a "value-added" requirement and as only To require that something be an "advance" mandating that the invention not be, on its over existing technology clearly demands that face, wholly valueless. In Lowell v. Lewis n74 there be new value in this item; that the Justice Story eloquently expressed this invention be "nonobvious" raises the threshold position: of the additional value requirement. Obvious improvements add some value to existing art, [*307] All that the law requires is, that the but it is only modest value because anyone invention should not be frivolous or injurious trained in the art can see the improvement to the well-being, good policy, or sound morals almost as a of intuition. The patent law of society. The word "useful", therefore, is requires that the new value be greater than incorporated into the act in contradistinction to that derived from "tinkering" with known mischievous or immoral. . . . But if the technology. n82 invention steers wide of these objections, whether it be more or less useful is a Those standards seem conclusively to circumstance very material to the interests of manifest a value-added requirement. There the patentee, but of no importance to the [*308] are, however, some complexities. In public. If it be not extensively useful, it will discussing the operability criteria, Peter silently sink into contempt and disregard. n75 Rosenberg aptly describes a well-accepted patent doctrine which seems to pose a strong While this standard was incorporated into nineteenth-century American patent Page 14 77 Geo. L.J. 287, * counterargument to the value-added A patentee is not required to exploit his requirement: patent; indeed, there is universal recognition that the patentee may shelve his invention and To satisfy the operability standard, an use his patent only to prevent others from inventor need not establish that his invention utilizing the patented process or invention. is better than, or that it is even as good as, n86 This hardly seems to mesh with the existing means for accomplishing the same requirement that there be value delivered to result. . . . [T]he law does not ask how useful is the society as a prerequisite for granting the invention. A device that may not operate property rights. well may nevertheless be operative. n83 Copyright law also seems to defy value- An invention that is not as effective or added reasoning. As with patents, one can efficient as the existing means for register a writing for copyright protection accomplishing the same result does not add without ever planning to [*309] publish the value to society -- at least not in a direct and work. n87 For copyrighted works, no straightforward way. n84 Nonetheless, the statutory provision demands "value." Indeed, patent law covers such inventions. For thousands of worthless works are probably example, one could patent an advance in copyrighted every month. Bad poetry, box vacuum tube computers although it is hard to office failures, and redundant scholarly articles imagine a technology so completely replaced are not denied copyright protection because by its successor. Usually a succeeding they are worthless or, arguably, a net loss to technology leaves the older technology with society. peripheral or special area applications, but chip technologies have replaced vacuum tubes The interesting issue of proportional so thoroughly in computer applications that contributions further evinces the degree to any value added by a vacuum tube advance which the value-added justification underpins would be minimal or nonexistent. intellectual property law. Modern industry depends on equipment and machines utilizing Similarly, patent scholars have not agreed multiple patents to carry out a single activity. with the presumed patentability of items that Through patent-licensing schemes, patent are technological "advances" without any owners share proportionally in the aggregate imaginable value. A good hypothetical is a new value of the intellectual property in such vote counting machine which errs by up to ten machines. However, the same ability to percent in any vote tabulation. Not only is this distribute value has eluded the copyright worse than existing technology, but its system. operation has absolutely no value. People will count votes by hand before they will entrust it A modest copyright apportionment to a machine erring ten percent. If this kind of doctrine was established in Sheldon v. Metro- "operable" machine is not patentable, it is Goldwyn Pictures. n88 In Sheldon, both Judge evidence of the value-added justification. If it Hand and Justice Hughes upheld the is patentable, that patent clearly is granted apportionment of only twenty percent of the without any consideration of added value. profits to the plaintiff when the defendant's n85 infringing film used only a small part of the plaintiff's play and expert testimony attributed Page 15 77 Geo. L.J. 287, * the movie's success to its popular stars, not the A value-added interpretation of intellectual script. n89 But even while making the award, property laws is easier to support by moving Hand wrote of apportionment that, "[s]trictly away from particular legal doctrines. Probably and literally, it is true that the problem is the best support for the value-added theory is insoluble." n90 The common wisdom, with an argument based upon "net gain." This rule- some scholarly debate, n91 has been to follow utilitarian argument for granting intellectual the Sheldon dictum instead of attempting its property rights finds it unnecessary that result. individual cases of copyright or patents be of social value. A very high percentage of That the apportionment system has protected works could be worthless so long as appeared as an ideal in copyright is homage to the system of property protection results in a people's belief in the value-added theory as a net increase in social value beyond what normative standard: social value contributed would be produced without the system. should be rewarded. The fact that an apportionment system in copyright has 3. Labor and the Idea/Expression remained only an ideal is explicable for several Distinction reasons. Certainly apportionment could The avoidance and value-added produce uncertain shifts in incentives. It might interpretations of the labor theory have very encourage infringements and discourage different foci. The avoidance theory argues originality by lowering the awards against that labor, by its nature, is unpleasant. The infringers. On the other hand, it might value-added theory places no limits on the strengthen enforcement by tempting judges to general nature of labor; it can be pleasant or find infringements more often. n92 unpleasant, stupefying or invigorating. The [*310] Apportionment may remain value-added theory may explain why labor impractical in copyright for the same reason it justifies property at the social level, while the would be impractical to have any value-added avoidance theory makes the individual feel requirement in copyright law. The "insoluble" justified in receiving something for his "pains." problem for apportionment is measuring the But this still leaves unresolved the nettlesome value of a copyrighted work when it forms question of whether or not producing part of a larger work whose value can be intellectual property actually requires labor. measured by objective criteria, such as box For the moment, let us treat the creation of office receipts or number of copies sold. The a finished intellectual product as a two-step corresponding problem for a preliminary value process. One step is thinking up the "idea," requirement in copyright is that it is much used here in the usual sense of the creative harder to predict whether a writing will have element or unique notion. The second step is value than to do so for an invention. It is often the work necessary to employ the idea as the startling to see what copyrighted works are core of a finished product. In the case of an ultimately judged valuable by society. Before innovative suspension bridge, the engineer has the precocious judgment of history, a "step an original idea and then spends months doing forward" in literature or in the arts is easily all the drawings and calculations necessary to confused with a step sideways or backwards. produce the finished plans. Edison had the idea of a light source produced by electrons Page 16 77 Geo. L.J. 287, * travelling through a filament within a vacuum. clear that the creation of the idea involves He and his workers then spent weeks finding labor. Ideas often seem to arrive like Athena -- the proper filament material, the proper suddenly they are here, full and complete. vacuum, and the proper electrical charge. n93 Like Zeus, we may have a headache in the process, but it is some unseen Minerva who [*311] These two steps represent the puts in the labor. difference between idea and execution. Sometimes this difference is not readily visible Yet our inability to formulate any clear or, when it does exist, the part we identify as separation between idea and execution the idea may seem the less important of the suggests that we should treat them as one. two components. Sartoris n94 and Absalom, This apparent inability is reinforced by Absalom! n95 have the "same" idea: the not too occasions in which the "execution" step begins original notion of the saga of a Southern before the idea. n96 In many fields, one has to family. The difference, the uniqueness, and do extensive research to create a necessary the importance to society is in the execution. launching pad for a new idea. A graduate law The idea of orchestrating Pictures at an student writing his doctoral paper made the Exhibition, Moussorgsky's 1874 composition for telling comment, "If I had six more months to solo piano, is not worth much in itself, nor is work on this paper, it would be an original the thought of doing a painting of the front of idea." n97 the Rouen Cathedral basked in sunlight. But The Lockean conception of idea-making each idea has proved to be a foundation for provides another ground for [*312] treating more than one significant execution. idea and execution as a single . Viewing In these examples the distinction between new ideas as plucked from some platonic idea and execution is drawn at a gross level. common may be reification in the extreme. Yet Although the distinction may seem intuitively in that view, the ideas already exist and the right, it can be blurred and redrawn by chief labor is transporting them from the focusing on different levels of detail. There is ethereal reaches of the idea world to not just the idea of orchestrating a piano piece, world where humanity can use them. n98 If but the more detailed idea of using a particular ideas are thought of as such preexistent motif in the third movement, and the even platonic forms, the only activity possible is more detailed idea of using a particular execution, which consists of transporting, percussion instrument in the forty-seventh translating, and communicating the idea into a stanza of that movement. The achievement in form and a location in which humans have writing fiction or in composing may be in the access to it. execution precisely because each turn of Existing intellectual property regimes favor phrase, musical or literally, is the result of a granting property rights only to those ideas creative event. which have received substantial execution. The creativity we perceive in an intellectual Patents are not granted for formulae product may be either in the core idea or in the disembodied from any technical applications; core idea's execution. I suggest that when we in some sense, such unapplied formulae may readily can separate the two, execution always be thought of as unexecuted ideas. A book or seems to involve labor, but it is not always dissertation receives copyright protection, not Page 17 77 Geo. L.J. 287, * its underlying thesis . One might need to reward artists with the need for free even point to the fact that federal copyright access to ideas, or as a tension between the protection applies only to work put into some copyright clause and the first amendment. permanent, tangible form n99 -- which Although this theory has never been explicitly suggests a requirement of execution. considered by the Supreme Court, Justice Douglas was one of its adherents. n109 In a With products such as phone directories or 1980 opinion, the Ninth Circuit also some news stories, execution -- a product of confidently stated this rationale: "[T]he impact, labor -- is all that realistically can be required if any, of the first amendment on copyright has because there is no original idea. Time, Inc. v. not been discussed by the Court. We believe Bernard Geis Associates, n100 in which the this silence stems not from neglect but from the Zapruder film of the Kennedy assassination fact that the idea-expression dichotomy was recognized as copyrightable property, already serves to accommodate the competing provides an interesting application of this interests of copyright and the first same standard. n101 Clearly, Zapruder had amendment." n110 While not abandoning this no original idea -- most people in his position view, Professor Melville Nimmer showed that and equipped with a camera would have there are occasions in which the filmed that tragic event. Zapruder's case is a idea/expression distinction does not ensure dramatic example of copyright protection in access to all the expressions we might want the category of nonartistic photos and films of freely available from a first amendment public events and places. It demonstrates that perspective. n111 In a society which relies on a unique product of one's labor can receive freedom of expression, there is a constant property protection even if there is no unique demand that many "expressions" be part of the underlying idea. public domain, such as photographs and films The case law of section 102 of the 1976 of [*314] very important events. n112 Copyright Act n102 has developed what has I suggest that the idea/expression been called "the idea/expression dichotomy." dichotomy and the idea/execution dichotomy n103 Under this doctrine, "expressions" are are the same. n113 At a minimum, the force protected but the underlying "ideas" are not. behind the latter dichotomy -- the concern for n104 Not [*313] surprisingly, the courts have labor -- significantly contributes to explaining never developed a clear distinction between the idea/expression division. The courts' ad the two, relying instead on comparisons such hoc approach in this area suggests that as between the idea of a male nude and the copyrightability may be based as much on expression of The David. n105 When one what we feel are people's deserts as on what replicates a series of scenes a faire n106 to we feel are society's informational needs. It make a story, there is no copyright problem; has been said that the idea/expression issue is n107 when one reproduces sets and production uniquely well-suited for juries. n114 I suggest techniques, there is. Illicit copying is copying that this is so not because juries care about a an expression, "the total concept and feel" of a doctrine that ameliorates copyright and first work, n108 not just the idea. amendment tensions and not because they The idea/expression dichotomy is know what idea-making is, but rather because frequently explained in terms of balancing the jurors sense what labor is. Page 18 77 Geo. L.J. 287, *

First amendment considerations define the prevent someone from publicly using an idea, "idea" side of the copyright dichotomy -- that but preventing the private use of ideas may which must be kept as a public preserve. not be possible. These two basic differences Labor defines the "expression" side -- that between ideas and physical goods have been which must be rewarded because it is used by some writers to argue against unpleasant activity. Protection of expression intellectual property, n115 but, if anything, and not of ideas can be understood as they suggest that ideas fit Locke's notion of a protection for that part of the idea-making "common" better than does physical property. process that we are most confident involves The "field" of all possible ideas prior to the labor. In a world in which we cannot formation of property rights is more similar to definitely separate idea and execution, we still Locke's common than is the unclaimed find ways to emphasize that property wilderness. Locke's common had enough protection goes to execution and less to the goods of similar that one person's ideas themselves. extraction from it did not prevent the next In fact, these first amendment concerns person from extracting something of the same have a place in a Lockean theory. In a Lockean quality and quantity. The common did not framework, first amendment freedom need to be infinite; it only needed to be manifests a problem with the "common." practically inexhaustible. With physical goods, Stated simply, some ideas and cannot be the inexhaustibility condition requires a huge removed from the common because there supply. With ideas, the inexhaustibility would not be the slightest chance of there condition is easily satisfied; each idea can be being "enough and as good" afterwards. used by an unlimited number of individuals. Imagine the absurdity of a political debate in One person's use of some ideas (prior to which some people held copyrights over intellectual property schemes) cannot deplete certain "new ideas." This leads to the second the common in any sense. Indeed, the field of element of a Lockean theory of intellectual ideas seems to expand with use. property: the common. It may seem pointless to talk about how the [*315] C. IDEAS AND THE COMMON field of possible ideas fulfills Locke's conception of the common prior to the creation It requires some leap of faith to say that of property, for the common is a concept ideas come from a "common" in the Lockean discussed only in connection with the creation sense of the word. Yet it does not take an of property. The point is that Locke's unrehabilitated Platonist to think that the "field treatment of the common implicitly concerns of ideas" bears a great to a common. itself with the problems of distribution. This The differences between ideas and physical distribution problem also arises in pre- property have been repeated often. Physical property uses of the physical common. When property can be used at any one time by only some starve in a pre-property world because one person or one coordinated group of others overconsume food or occupy all the people. Ideas can be used simultaneously by tillable land, there is a problem of just everyone. Furthermore, people cannot be distribution. Such distribution problems are excluded from ideas in the way that they can not found in pre-property uses of the field of be excluded from physical property. You may ideas. Page 19 77 Geo. L.J. 287, *

1. The Common and Tempered Property New idea X may be the key to a whole new Rights range of ideas which would not have been thought of without X. Assuming the Platonic How the creation of property affects model, putting X into intellectual commerce distribution of the common depends on the does not increase the common so much as it extent of exclusion entailed in property rights. enhances the abilities of people to take from Existing forms of intellectual [*316] property the common; it gives people longer arms to do not countenance complete exclusion of the reach the ideas on higher branches. In this non-owner. Nor can one easily imagine view, X just makes new ideas Y and Z more systems of intellectual property that could easily discovered by a wider range of people. completely exclude. When the range of people and/or ease of This complete exclusion is impossible for discovery is dramatically improved, one can two reasons. First, any property scheme which think of the common as being practically completely excludes third parties from ideas enlarged. n117 must enforce its restrictions in ways Computer provide a good incompatible with our notions of privacy and example of a case in which one contribution to individual freedom. Second, successful the society makes other contributions possible. policing of such exclusion probably would be Embarking on an [*317] effort to create a new impossible. This impossibility can be thought is a considerably more ambitious and of in either technical or economic terms. For difficult project than writing programs in an the foreseeable future, practical considerations existing language. It is not something most will limit the ways in which people can be computer scientists would undertake. In that excluded from intellectual goods. By any sense, it is more a unique idea than is a new standard, thought-police would look more like program in an existing language. This new Keystone Kops than like the KGB. Such language may stimulate programming in a thought policing would certainly not be cost way that would not have been possible but for effective. Historically, the only time the cost the language. Furthermore, this new language effectiveness of policing has not been a creates an incentive to write these programs. controlling factor is when the police enforce Thus, it is an addition to the "common" which the claims of the sovereign and not the claims gives many people new ability to create even of individuals. Police states guard the interests more property and expand the common even of the state, not those of persons. further. As long as complete exclusion cannot or Finally, idea X may be genuinely necessary does not happen, ideas will be available to to new idea Y. Orchestrations and adaptions people in their own even though are examples of this. The movie Cabaret was these ideas already have become someone adapted from the musical Cabaret which was else's property. Through this availability, one adapted from Isherwood's Berlin Diaries. idea can lead to still more ideas. In other Parodies provide an even better example of words, once a "new" idea has been put into such necessity. The Mona Lisa, American Gothic, intellectual commerce, once people know Whistler's Mother, and Hemingway's prose all about it, it leads to an "expansion" of the have inspired generations of parodies -- common, or of the accessible common. n116 cultural objects which would have neither Page 20 77 Geo. L.J. 287, * humor nor sense without the object of comic here is that Mr. Jones has not added much adoration. The original is necessary as a value (or much labor) beyond idea X. preexisting part of the culture. Intellectual property systems handle this Robert Nozick has argued that a system of situation of questionable added labor with a physical appropriation benefits society in a few general principles. First, if the idea is manner analogous to this expansion in the sufficiently separate from its "parent" idea to world of ideas. n118 Yet there is an important have required significant independent labor or difference between the expansion of the creativity, it belongs to the laborer. n120 physical common and of the idea common. Conversely, if the new idea bears too much According to Locke, the act by which physical resemblance to its parent idea, the owner of the object X is transformed into property is an act parent has a controlling interest in the new that creates new social value. This added idea. Finally, the two principles are limited by value, however, goes directly into that situations in which the descendant idea property owner's possession. At least this includes the entire parent idea, as with a new characterization applies to Locke's example of machine which uses a patented process as one cultivated land and the added grain it of several steps or a play which uses someone's produces. n119 This new physical value -- concerto as its theme. In these cases, the grain -- adds to the commonweal only if the owner's interests in the parent idea must be owner releases it, either through gifts or accommodated with much less balancing than commerce. Locke relies upon the money that afforded by the first two principles. n121 economy to facilitate this. The law regarding parodies exemplifies the Intellectual property systems release the balance struck between the first two principles. added value of a new idea without requiring A copyright does not enable its holder to the property owner's active and intentional prevent parodies of the copyrighted work; as introduction of the idea into commerce. Take long as the parody has creativity and the situation in which Mr. Smith creates idea X originality, it may use substantial elements of and this idea makes possible ideas Y and Z. the original. n122 However, if reasonable Ideas Y and Z are not possessed by Mr. Smith people would easily mistake the parody for the in the same way the grain is possessed by the original, the copyright holder would have an farmer. Sequel ideas are not "attached" to their especially strong interest in stopping antecedent ideas as grain is attached to publication of the parody because it will farmland. As long as idea X is known to other probably appear to be a bad or erroneous people, it can inspire ideas Y and Z. production of the original. n123 The creator of such a parody, because of its resemblance to New ideas, however, can be "attached" to the original and the little labor employed in idea X in the sense that they seem too making the parody, would possess [*319] a derivative of X to be granted their own lesser interest in his product. Under such property status. Mr. Smith, the owner of idea balancing, the recognition of property rights in X, may claim that Mr. Jones, the author of Y, idea X still permits, indeed inspires, others to really did [*318] not create anything reach new ideas Y and Z. independent and different from X. The claim Page 21 77 Geo. L.J. 287, *

Because creating property rights in an idea yet it is easy to make a list of things which the never completely excludes others from using society could not allow to be appropriated as idea, it need not be justified by Locke's private property: the Amazon, St. Lawrence, legerdemain that increases in privately and Ohio Rivers, the Cumberland Pass, or the produced goods necessarily benefit the St. George's Bank fisheries. commonweal. Nor does it require justification Earlier I described two broad categories of from Nozick's reconstitution of "the Lockean ideas to which ascription of private ownership proviso." n124 Under Nozick's reconstruction, is denied. The first is the category of common, the public would be better off even if an "everyday" [*320] ideas, such as thinking to intellectual property owner could completely wash one's car, to add paprika to a quiche for exclude others from his idea because it could coloring, or to tell mystery stories to your cub still buy the goods and services developed scout troop. The second is the category of from that idea. n125 This might be true, but extraordinary ideas like the Pythagorean intellectual property need not be justified on theorem, the heliocentric theory of the solar such a thin reed. People are better off today system, or the cylindrical column in because there are more ideas available to them, architecture. at least in part, that provide springboards to generate even more intellectual property. New One reason that we do not permit property ideas, even most that become private property, rights in either category of ideas may be that benefit the commonweal by immediately being doing so would involve tremendous known and, in some sense, available to all. reallocations of wealth toward the property There is no need to rely on property holders to holders of these ideas. If we had to pay a actively introduce them into the common. royalty each time we told a ghost story or walked the dog, unprecedented wealth would 2. The Common and Ideas That Cannot Be concentrate in the hands of those "holding" the Granted Property Status most common ideas. These common, Intellectual property systems also are more everyday ideas are too generically useful to suitable for a Lockean justification than are allow someone to monopolize them. The physical property systems because a growing common would not have "enough and as set of central ideas are never permitted to good" if they were removed. become private property and are held in a The same is true of extraordinary ideas. Permanent common. n126 By preventing This category, however, actually contains two private control of these particular ideas, distinct groups of ideas. First, there are ideas intellectual property law resolves a major that are extraordinarily important because they inequity often present in physical property disclose facts about the world, such as the systems. Even in a vast wilderness, an Pythagorean theorem and the theory of individual should not be permitted to claim electromagnetism. In the case of certain physical goods as property because electromagnetism, the Supreme Court ruled their extraction from the common will not that Samuel Morse could not monopolize the leave "as good and as many" for the remaining general idea of using galvanic current for long- individuals. The "New World" prior to its distance communications, although he could colonization may have been as close to a Lockean common as human history records, Page 22 77 Geo. L.J. 287, * monopolize his particular process for about the legal system or the world. For the exploiting the idea. n127 legal realist who sees no , the novel argument still can become (like architectural A second group of extraordinary ideas -- columns) a necessary fixture in the social which contains ideas like the architectural edifice. In fact, that is the basis for Benjamin columns -- may not be monopolized because of Kaplan's criticism of Continental Casualty v. their widespread public use. At first, this Beardsley, n129 a 1958 case upholding the sounds like a poor argument: that the idea of a copyright on certain insurance forms. n130 column is widely used may mean it is a "public Without reaching the broader issue of ideas idea," but that is hardly a self-evident reason beyond privatization, Kaplan observed that, why it must be public. Yet widespread use of "[t]he effect of the decision may be to force something, like columns and vaulted ceilings, users to awkward and possibly dangerous has another effect: it makes a particular idea recasting of the legal language to avoid appear to be a basic truth or process. At some infringement actions." n131 Kaplan's criticism point, one hardly can imagine the larger social is basically that the language in those forms organization without the lesser object. had become necessary to the legal system and Columns would appear as a far less basic truth therefore should be beyond privatization. to cave dwellers than to those who inhabit a n132 post-Hellenic world in which columns prevent our buildings from crumbling into impromptu Ideas which can be privatized fall between pyramids. these extremes of common and extraordinary ideas. A new device to wash cars may be In short, some ideas become patentable; a quiche recipe with secret herbs "depropertized." Originally, they could have and spices can be privatized as a trade secret; been subject to private ownership (unlike the the original mystery story can be transferred first kind of extraordinary ideas), but the from campfire to copyrighted novella. Even pressure to keep them in the common things which are related to extraordinary ideas increases as the ideas become increasingly may be privatized. While neither Leibniz nor important to the society. As an idea becomes Newton could copyright the calculus under extraordinary, it is clear the common will not today's copyright laws, each probably could have "enough and as good" if the rights to the copyright his own system of notation for idea continue to be privately held. calculus. n133 The idea of a science fiction Law itself provides an interesting example. "space empires-at-war" story cannot be Saul Levmore has adroitly observed that "the copyrighted, but when Battlestar Gallactica is law does not normally offer intellectual too much like Star Wars, the owner of Star Wars property rights to [*321] lawyers who can drag the Galacticans into court with a develop novel arguments and establish credible claim of property infringement. n134 precedents." n128 Perhaps legal arguments The Supreme Court has struggled with could be fit within either of the two perhaps the most basic dilemma of this sort: subcategories of extraordinary ideas. In one When can an algorithm [*322] be made into view, arguments adopted by a court become property? n135 Its present doctrine is that an valuable (as precedent) precisely because the algorithm closely linked to a specific court believes that argument is a basic truth technological application may qualify for Page 23 77 Geo. L.J. 287, * patent protection. n136 This provides an like a penalty if we view the situation as the example of a specific application (the owner lulling the society into a dependency on technology) being used to bring the general a privately owned word. When the society idea (the algorithm) into the field of realizes that dependence it should place the protectable ideas. word in the permanent common. What separates the everyday idea from the 3. Augmenting the Common Through protectable idea is the former's relative Expiration of Property Rights unimportance and the latter's uniqueness; For those trademarks which have become what separates the protectable idea from the generic words, their "condemnation" is a extraordinary idea is that the extraordinary method of de-privatizing ideas. Other idea is uniquely important. One rule of thumb intellectual property regimes augment the idea is that the more generally required by society common in another way: they require all idea an idea is, the more important and less subject property to return to the common to propertization it becomes. n137 However, automatically at some point. Copyrighted very detailed ideas or pieces of information property enters the public domain fifty years also may be beyond privatization because after the death of the author. n142 Patents monopolistic control of them would harm expire after a maximum of thirty-four years. society. For example, in the eighteenth n143 News becomes commonplace century, copyright over a navigation map was information, and the shadowy of its held not to preclude someone from copying its quasi-property status dissipates. n144 Trade geographic details. n138 In eighteenth- secrets may be the lone exception; they must century navigation, these details provided the be constantly defended, not only against real only safe way to proceed. There would not be industrial espionage but as a legal requirement "enough and as good" without free access to to maintain their protection. Trade secrets and these details. "gathered information" property have no fixed With ideas that become extraordinary, expiration, but they tend to be self- society's increasing dependency on them extinguishing. At some point, the guard drops creates a pressure to remove them from private and the trade secret expires. This general control. For example, a popular trademark occurrence of expiration marks a radical that comes to serve a unique representational difference from physical property function loses some of its property protection arrangements. under the doctrine of genericness. n139 I find it helpful to think of two commons: a Examples of trademarks which have or may "common of ideas" and a "common of potential have lost their property status because the ideas." Perhaps progress is an inexorable words are so generally relied upon for movement of the former gobbling up more and communication include "thermos," more of the latter. When an individual "cellophane," "aspirin," and "xerox." n140 At augments the common of ideas, we recognize a least one commentator has remarked that this property right. Yet at some point an can be an unfair penalty on one "who has individual's addition to the common of ideas made skillful use of advertising and has appears to be part of the historic migration of popularized his product." n141 Perhaps the ideas from the potential common to the actual [*323] loss of a trademark would seem less Page 24 77 Geo. L.J. 287, * common. n145 At that point, the property the subsequent property arrangements of right expires. future generations. Hillel Steiner has expressed one form of this attack: Robert Nozick hints at this point in his example of the scientist who stumbles upon a Consider, first, Locke's construction of new substance. Nozick argues that this individuals' original rights. The claim that for scientist does not deprive anyone of the a limited (early) historical period each person substance by privatizing it and excluding was entitled to appropriate a quantitatively others from its use. While this is certainly true similar collection of natural resources is open at the moment of discovery, Nozick recognizes to the unanswerable objection -- noted by [*324] that limitations on the discoverer's Nozick -- that a right of historically limited rights may be justified later because, "as time validity and, thus, of less than universal passes, the likelihood increases that others incidence, cannot be constituted by any set of would have come across the substance." n146 moral rules that extend the same kinds of Nozick uses this reasoning to justify rights to all persons. The titles thereby limitations on the bequest and inheritance of established can preclude historically later physical goods. n147 Expiration in persons from exercising the same kind of right. intellectual property regimes also seem Hence the set of rights constituted by Locke's inspired by this idea. n148 rule fails the test of coherence. . . . n149 Expiration ensures that most ideas Nozick particularly addresses this problem eventually reside in the common unfettered in with his discussion of the "Lockean proviso." any way. This new wealth cannot be retaken Nozick has deftly interpreted Locke's and privatized by someone else; it is material condition that there must be "enough and as which will be held permanently in common. good left in common for others" as a principle This new material will lead to new ideas, hence meant "to ensure that the situation of others is new property for as yet unidentified people. not worsened" by the appropriations of This condition is sufficient to show property from the common. n150 Nozick says "enrichment" of the common even in those rare that Locke would justify privatization of things instances in which the public might be previously in the common unless successfully and totally excluded from an idea "appropriation [*325] of an unowned object during its period as privately held property. If worsens the situation of others." n151 the owners of new ideas could exclude Assuming that acts of propertization do everyone from the idea, social progress would produce inequalities, Nozick's reformulation of be slow, but as long as those new ideas Locke's "enough and as good" provision holds eventually become freely available, idea-based that inequalities of this sort always should be progress would continue. tolerated so long as they do not make the worse-off more badly off. To use the The expiration of intellectual property economist's jargon, Nozick is adopting the rights may help a Lockean scheme of principle of Pareto optimality. n152 Whether intellectual property overcome one general or not this reformation is successful, both objection to Locke's theory. This objection is Locke and Nozick have used the original that Locke's vision of property rights justifies acceptability of initial property rights to lead to property for one generation, but cannot justify Page 25 77 Geo. L.J. 287, * the acceptability of property rights for only in societies which have transcended the succeeding generations. condition. n156 It is possible, however, to imagine [*326] intellectual property existing Intellectual property systems avoid these before the creation of a money society. shoals. As long as there is an ever-growing Certainly the subjects of intellectual property common of ideas available for everyone's exist in primitive states: the corkscrew method unlimited use, every person has at least as of raising water from the Nile, the varied much opportunity to appropriate ideas as had means of tanning hides, or original straw the first man in the wilderness. There is an weaving . When the originator of one equilibrium between those ideas being of these ideas shared it with others, he gave removed from the common through some value to the others by allowing them to privatization and those ideas that society relies remove property from the common with less heavily upon. What results is akin to John labor. Rawls' treatment of justice between generations. Rawls argues that a fixed rate of This can produce paradoxical results savings between generations allows each depending on our understanding of Locke's generation to reap the same rewards and make theory of private property. For example, if the same investment in the future. n153 This what separates private property from the effectively happens with intellectual property. common is labor, then sharing a labor-saving The common of ideas grows like investment in idea with a friend actually may rob my friend an idea bank. of her Lockean title to those goods she extracts with my idea. This is especially true if more D. THE NON-WASTE CONDITION AND labor makes one's property claims stronger. INTELLECTUAL PROPERTY My friend is, after all, laboring less for the Historians treat Locke's condition of non- thing she gets. A related question is whether waste as an ugly step-sister of the enough and use of the idea by another is equivalent to as good condition -- maligned, not for its own additional labor by its originator. If so, when a infirmity, but for how quickly Locke abandons friend uses my idea to draw water from the it in his adoption of a money economy. n154 Nile, it would be as if the friend and I drew the Nozick offers a criticism from another side: water together. Would we, therefore, have true application of Locke's "enough and as some type of joint title to the water? good" provision makes the non-waste There is a powerful argument that ideas condition superfluous. n155 This criticism cannot be subjects of Lockean property rights attacks the place of the non-waste condition in in the pre-money state. If so, this sharply Locke's theory, not the condition itself. distinguishes ideas from physical objects. In Without entering this fray, I suggest that many the state of nature, people take what they need systems of intellectual property neither for survival. Those who fail to appropriate embody nor require a non-waste condition. enough perish. In this situation, giving a 1. Intellectual Property and the Money friend my labor-saving idea would likely Economy produce one of two results: either it preserves A "pure" Lockean account might dismiss her life when otherwise she would have the applicability of the non-waste condition on perished for insufficient labor to appropriate the grounds that intellectual property exists Page 26 77 Geo. L.J. 287, * enough or it allows her to accumulate waste condition dissipates in a world in which surpluses with which to barter. n157 all have enough or more than enough to meet their needs. This is the jist of Nozick's The first possibility, that the idea preserves argument that Locke does not need the non- her life, runs counter to Locke's assumptions. waste condition so long as he employs the If a person of average physical capability "enough and as good" condition. n160 requires the idea to take enough from the common to survive there is something wrong But spoiled food can be viewed as waste in either with the common or with human either of two ways: food that spoils is available capacities. Before we even reach the question neither for the present potential use of those of "enough and as good," the common is not who do not own the food nor for the future good enough. potential use of its owner. There is waste in others needing something that is not being The simplest cure is to say that the idea is used, and in consumption of the individual's part of the common -- as something everyone labor without bringing any benefit to the needs to take the common's physical things -- individual. The first is waste in a social or that the idea is part of human capacities -- context; the second is waste for the individual an idea all humans should possess in the same organism. way they would possess the idea of using their arms to climb trees. Either way, the idea could Nozick's argument addresses only the not be the subject of propertization. I prefer to former, and completely misses the latter. For view certain ideas as things Locke would although no one may need the food that spoils consider basic to human capacities. These in the pre-economic state of natural bounty, might include, for example, the use of simple the individual's labor that was used to produce tools -- the club, the [*327] knife, the rope, and and appropriate the spoiled food nevertheless clothing. n158 This would seem to fit Locke's has been "wasted" -- it [*328] was used description of the state of nature in which men without creating any present or future value to do certain activities that entail the use of society or to himself. In the realm of simple tools. intellectual property, there are interesting differences between these two versions of On the other hand, if the idea I give my waste. Unlike food, ideas are not perishable: friend allows her to accumulate a surplus for they almost always retain future value. From bartering, this idea exists in or begins the an individual's perspective, it is much harder money economy. The idea can be treated as to say at a point in time, T[1], that the intellectual property precisely because it individual's investment in some idea is wasted. produces surplus value which can be traded. The investment may yield value at a later T[2]. n159 Of course, one can claim that intellectual goods 2. The Non-Waste of Intellectual Property. actually are perishable: ideas go stale, new Locke presents his non-waste condition stories become "old," literature becomes dated, most directly in the example of food spoilage, and patents become worthless as the and this particular form of loss powerfully technology on which they are based becomes demonstrates the appeal of the non-waste obsolete. These are examples of good ideas condition. The waste of food is an absolute being introduced into society too late to yield loss. Arguably, the moral force of the non- maximum return. Page 27 77 Geo. L.J. 287, *

Yet the value lost by hoarding an idea until protection, n162 and even before 1976, it becomes obsolete is a very different kind of common law copyright or state statutes loss than food spoilage. There is no internal protected the author's unpublished work in the deterioration in the idea and the loss in value stages before federal statutory [*329] is seen only against a social backdrop. The loss copyrights could have been granted. n163 is speculative and may be reversible. Future It is difficult to think of any other ways in trends may make the outdated idea which intellectual property schemes embody fashionable again. Even with technology- any notion of the non-waste condition. based intellectual property -- the property Patents, copyrights, and trade secrets all are most prone to an objectively measurable loss in recognized whether or not the owner is value -- there may be a recovery of value. For squandering or has shelved the idea. In the example, new technical improvements in case of quasi-property, the legal right to waste equestrian equipment and train engines can a news story by nonpublication has not been still be very profitable despite the appearance clearly stated, but surely this is because of the of automobiles and Boeing 757s. news story's limited shelf life and not the law's While the social value of an idea may limited protection. n164 decline below an optimal point, the value of E. FINAL COMMENTS ON A LOCKEAN the idea, apart from its value to society, may JUSTIFICATION remain constant. An unpublished story may still give an author joy when shared with The absence of a non-waste condition in intimates. The secret recipe for Kentucky Fried intellectual property systems does not weaken Chicken will taste as good to the creator a Lockean justification for intellectual whether or not it is shared with Madison property. Locke, after all, declined to apply Avenue. With intellectual property, there is no the non-waste condition to the advanced social waste to the individual because the act of conditions which are required by most "consumption" is inseparable from the act of intellectual property systems. However, it production. Intellectual property holds value may be disconcerting to those of us who derived solely from the act of creation. believe that applying the non-waste condition to advanced societies would produce a more In intellectual property systems, moral justification for property. Intellectual manifestations of a non-waste condition are property systems, however, do seem to accord few and far between. Perhaps the most explicit with Locke's labor condition and the "enough inclusion of the condition in intellectual and as good" requirement. In fact, the "enough property law was the publication requirement and as good" condition seems to hold true only for copyright protection. Until the 1976 in intellectual property systems. n165 That Copyright Act became effective, federal may mean that Locke's unique theoretical copyright protection for a work commenced edifice finds its firmest bedrock in the common upon publication. n161 Publication ensured of ideas. that the literary work was not being wasted. Effectively, ideas could be monopolized My own view is that a labor theory of through copyrights only when put to good use, intellectual property is powerful, but i.e., published. Yet since 1976, publication has incomplete. I believe we also need the support not been required for federal copyright of a personality theory, such as the one Page 28 77 Geo. L.J. 287, * proposed by Hegel, in which property is Like the labor theory, the personality justified as an expression of the self. Some theory has an intuitive appeal when applied to writers have suggested that Locke actually intellectual property: an idea belongs to its subscribed to such a personality theory in creator because the idea is a manifestation of which "applying one's labor to a natural object the creator's personality or self. The best . . . endow[s] it with certain features pertaining known personality theory is Hegel's theory of to one's own form of existence." n166 With property. n169 This section sketches his [*330] this understanding of Locke, the property theory, its application to intellectual difference between him and Hegel -- at least as property, and some problems of using the to the analysis of intellectual property -- may personality theory as a justification for be minimal. intellectual property. III. A HEGELIAN JUSTIFICATION In the field of intellectual property, the personality justification is best applied to the In the preceding discussion, I argued that arts. This is true both in theory and in Locke's labor theory can serve as a powerful European legal systems that have recognized a justification for intellectual property. But personality basis for property. Efforts to beyond intellectual property, a Lockean model introduce the personality justification into thickens with the ingredients of modern life: American law frequently appeal to those financial markets, capital accumulation, service European intellectual property laws. n170 As industries, inheritance, and the like. Those an alternative, I suggest ways to [*331] bring who try to apply Locke to all modern property civil doctrines to bear on intellectual end up multiplying distinctions like pre- property and, in so doing, inject the Copernican astronomers calculating celestial personality justification into American orbits with their Ptolemaic epicycles. At some intellectual property law. point, it becomes easier to reorient one's universe. A. HEGELIAN INTELLECTUAL PROPERTY The most powerful alternative to a Lockean model of property is a personality justification. 1. The General Hegelian Philosophy Such a justification posits that property At the heart of Hegel's philosophy are his provides a unique or especially suitable difficult concepts of human will, personality, mechanism for self-actualization, for personal and freedom. For Hegel, the individual's will expression, and for dignity and recognition as is the core of the individual's existence, an individual person. Professor Margaret constantly seeking actuality (Wirklichkeit) and Radin describes this as the "personhood effectiveness in the world. Hegel perceives a perspective" n167 and identifies as its central hierarchy of elements in an individual's mental tenet the proposition that, "to achieve proper make-up in which the will occupies the highest self-development -- to be a person -- an position. As one of Hegel's biographers wrote, individual needs some control over resources the Hegelian will is that in which thought and in the external environment." n168 According impulse, mind and heart, "are combined in to this personality theory, the kind of control freedom." n171 needed is best fulfilled by the set of rights we call property rights. We can identify "personality" with the will's struggle to actualize itself. Hence Hegel Page 29 77 Geo. L.J. 287, * writes that "[a] person must translate his individual when he believes it is time to freedom into an external sphere in order to pursue freedom to new and dizzying heights. exist as an Idea" n172 and that "[p]ersonality In his property theory, however, Hegel is the first, still wholly abstract, determination focused on the immediate freedom of an of the absolute and infinite will." n173 For individual. n176 So at this level the liberal's Hegel, "[p]ersonality is that which struggles to critique of Hegel should be most muted. The lift itself above this restriction [of being only liberal still differs from Hegel by defining subjective] and to give itself reality, or in other freedom as the absence of restraints, but this words to claim that external world as its own." negative definition means little without the n174 positive freedom to act upon things. In Invariably, writings on Hegel devote some Camus' Caligula, n177 the despotic Emperor attention to the difference between Hegelian declares himself to be the most free man in the "freedom" -- as it appears in the passage above world because no wish is denied him. Caligula -- and the conception of "freedom" which lies has few external restraints; he can manifest his at the root of classical liberalism. However, will on anything within the reach of Imperial these disparate conceptions of freedom need legions or roman sesterce. not greatly affect the acceptability of Hegel's Caligula's claim to be a model of freedom justification for property. for his people is faint comforts to them because To the classical liberal, true freedom is a they frequently are the things upon which he freedom from external restraint. For Hegel, manifest his will. At least at the level of freedom is increasingly realized as the individual freedom, Hegel denounced such individual unites with and is expressed manifestations of will upon others. n178 through a higher objective order: a unity Caligula's material self-indulgence points to a which, to the classic liberal, is tantamount to weakness in both Hegelian and classical liberal drowning the individual in the larger "geist" of theories: the need to sort out the effects upon social groups. In the words of R. N. Berki, other people of an individual's exercise of Hegel's notion of "philosophical freedom grows freedom over inanimate objects. n179 In with comprehensiveness and with ever higher Hegel's system, property is a genre of freedom degrees of realized self-determination, thus, an and, like any other freedom, it may have animal is freer than a , a man deleterious on other. freer than an animal, the family freer than the 2. The Property/Person Connection individual, the State freer than the family, World-History freer than the State." n175 Drawing upon his model of the hierarchy Berki's summary is instructive [*332] on the of elements in the individual's make-up, Hegel difference between liberal and Hegelian implies that the will holds the "inferior" notions of freedom: this difference is more elements of the self as if they were a type of about the proper receptacle of freedom than property. n180 It is worth noting that this about the nature of freedom. Both recognize view is not very distant from Locke's initial freedom as involving expression and premise that "every Man has a Property is his realization. The liberal reposes this freedom in own Person." n181 Assuming that the self is a the individual while Hegel discards the type of property, the difference between internal property of this sort and property Page 30 77 Geo. L.J. 287, * external to the person is that the latter can be Respect for property allows the will to alienated. This reasoning can lead to an continue abstraction and "objectification." With abandoning of barriers in both directions. As some property secure, people can pursue Dudley Knowles put it: "[T]he [*333] freedom in non-property areas or they may contraction of the core of one's property into continue to develop themselves by using the sphere of personality (life, limb, and property to move themselves toward the liberty) licenses the expansion of the concept of person they wish to become. Knowles has personality to cover those physical objects clearly depicted the Hegelian interaction which are deemed to be property." n182 between property and personal development: "Imaginative conceptions of our future selves According to Hegel, the will interacts with are indistinguishable from fantasy or day- the external world at different levels of dreams unless they are supported by activity. Mental processes -- such as acquisition, investment, or planned savings. . . recognizing, classifying, explaining, and . Anyone who wishes to conduct an inventory remembering -- can be viewed as of his desires may profitably begin by walking appropriations of the external world by the round his own dwelling or looking into his mind. n183 Cognition and resulting wardrobe." n186 knowledge, however, are the world imposing itself upon the mind. The will is not bound by Property is not just a matter of the physical these impressions. It seeks to appropriate the world giving way to assertion of the self, for external world in a different way -- by the society must acknowledge and approve imposing itself upon the world. This is the property claims. Through society's acceptance true purpose of property and, perhaps to of the individual's claims upon external emphasize that purpose, Hegel explicitly objects, [*334] possession becomes property, disavows any need for the institution of and the expression of the individual becomes property to satisfy physical wants. n184 more objective. n187 for Hegel, increased objectivity is increased freedom in part because Acting upon things is an initial step in the social recognition of a person's claims to ongoing struggle for self-actualization. private property demonstrates that the Socially mandated property rights do not individual's claims comport with that social trigger this self-actualization; they are only a will. means to protect the individual's initial attempt to take command of the world. Once The individual person comes to be we accept that self-actualization is manifested manifested in some object through in enduring objects as well as in fleeting acts, "occupation" and "embodiment." n188 property rights acquire an important purpose Although much of Hegel's language seems to in preventing men from forever being support either a "first possession" theory or a embroiled in an internecine conflict of each labor theory, neither accurately captures what individual trying to protect his first forays at he means by occupation. He characterized self-actualization from the predation of others. possession of the object as the initial step in Property becomes expression of the will, a part property, n189 but this is because the will can of personality, and it creates the conditions for only occupy a re nullius -- either a virgin object further free action. n185 or something that has been abandoned. n190 Page 31 77 Geo. L.J. 287, *

Abandonment occurs easily in the Hegel seems to envision spatio-temporal Hegelian system because the relationship proximity between the individual and the between person and object is fluid. Being first object, but that too is only indicia rather than a in possession of an object is not sufficient to requirement. Unlike the labor theory, Hegel's maintain title to it; the property relationship personality justification continues only so long as the will manifests focuses on where a commodity ends up, itself in the object. Because "the will to possess not where and how it starts out. . . . [I]t something must express itself," n191 a person focuses on the person with whom it ends up -- who fails to reaffirm constantly this expression on an internal quality in the holder or a can "lose possession of property through subjective relationship between the holder and prescription." n192 The individual also can the thing, and not on the objective actively withdraw his will; this is the basis of arrangements surrounding production of the alienability. n193 thing. n199 Labor often is the means by which the will As Radin points out in this passage, the occupies an object. n194 But while labor may connection between personality and property be a sufficient condition for occupation, it is is open-ended. A person could claim a not a necessary one. For example, one may personality stake in any material object, manifest one's will in a gift or in a natural meaning that the personality justification is object to which one becomes emotionally liable to excessive claims. It is a theory that attached. n195 There is a rock on my shelf allows Virginia Woolf to claim a room of her from the coast of Corsica that reminds me of own, but also allows Louis XIV to claim the days spent there. My will occupies that rock 2,697 rooms of Versailles. without wishing to change it and without having labored upon it. This exemplifies This subjectivity causes unhealthy another non-condition of occupation; Hegel identifications with property that should not specifically [*335] argues that an individual give rise to legitimate property claims. Early need not use an object to occupy it. n196 in his writings, Hegel hinted that certain self- identifications with property were destructive This is not to say that there are no objective to the individual. For example, in the indicia of the will's occupation. Hegel sets out Theologische Jugendschriften, n200 Hegel argues three ways in which the will may occupy an that the ownership of property can stand in the object: physically seizing it, imposing a form way of complete harmony between individuals upon it, and marking it. n197 This would not in love. "The dead object in the power of one appear to be an exhaustive list of events that of the lovers is opposed to both of them, and a signal possession, nor is Hegel precise in union in respect of it seems to be possible only defining these three events. Thus he finds use, if it comes under the dominion of both." n201 when aimed toward preservation of the object, equivalent to "marking it" because it shows the This destructive effect of property should will's desire to make the object a permanent be distinguished from the alienation that later part of the inventory of things utilized and came to propel Hegelian and Marxian social enjoyed by the individual. n198 criticism. It differs from the problem of a laborer who attaches his existence to objects that he produces but does not own: the plight Page 32 77 Geo. L.J. 287, * for such a laborer is that his is attached this property to X would deny Y the possibility to something that is not his property. Nor is of obtaining property. Under Radin's this the problem [*336] of a person owning standard, whether an act of appropriation is things with which he does not identify. n202 "healthy" depends upon whether it has In the Jugendschriften, the problem is that a deleterious effects on others. This standard person owns and identifies with some property has a resemblance to Locke's "enough and as to his own detriment; it prevents a greater good" condition. As long as there is enough happiness in the form of a love relationship. and as good potential property for the self- actualization of others, one may appropriate. Generalizing from this example, we might say that a person's identification with property In fact, Radin's principle of "fungible" and is "unhealthy" when it prevents that person "personal" property is the "enough and as from maximizing self-actualization from other good" condition unless we construe it in one of sources -- lovers, friends, careers, peer groups, two ways. The first construction would other property, and even feelings antithetical require people to disgorge their fungible to the possession of property such as the property, even when there is "enough and as flower-child freedom of the 1960s. The good." This position does not make much complexity of maximizing self-actualization sense if subjective judgments determine usually makes us defer to the judgments of the personal attachment to property. Property that individual. However, when the industrialist is objectively appears to be fungible may actually inextricably in love with the flower child, we be personal; [*337] occasionally someone will may conclude that his property is unhealthy have a personality stake in U.S. Savings Bonds for his present and future self-actualization. or GM stock. Radin also has expressed concern about the The second construction would not require adverse effects of property on self- people to disgorge personal property even actualization. However, she focuses concern when there is not "enough and as good" on the detrimental impact of property on property available to all. This position makes people other than the property owner. She some sense on a cost/benefit rationale: with distinguishes between "fungible" and truly personal property, we may be damaging "personal" property, the latter being property the self-actualization of the property-loser as which increases self-actualization. She adopts much as we would augment the self- the principle that property fungible to person actualization of those to whom the property is X should be denied to X if giving that property distributed. In a world of property shortage, to X would deny personal (that is, self- some persons will be malnourished in their actualizing) property to Y. n203 self-actualization. It is just a matter of who. Radin's standard accords with Hegel's own The fungible/personal distinction therefore reasoning. In addressing the severe inequality renews the subjectivity dilemma, a problem of property distribution in his own day, Hegel recognized by Radin. "Fungible" and argued that his system required only equality "personal" are strong intuitive guides in a as to the possibility of obtaining property. n204 culture enamored with economic analysis. Hegel implicitly endorses the view that Stock portfolios, mining rights, and tons of property can be denied to person X if giving wheat are fungible; photos, diaries, and pets Page 33 77 Geo. L.J. 287, * are not. Yet this leads us nowhere with the Hegel takes the position that one cannot person willing to sell his grandmother or the alienate or surrender any universal element of person who keeps pet wheat. We are left with one's self. Hence slavery is not permissible either an artificially constrained or an entirely because by "alienating the whole of my time, subjective measure of when property as crystallized in my work, I would be making actualizes the self. into another's property the substance of my being, my universal activity and actuality, my 3. Intellectual Property Under Hegel personality." n207 Similarly, there is no right For Hegel, intellectual property need not to sacrifice one's life because that is the be justified by analogy to physical property. In surrender of the "comprehensive sum of fact, the analogy to physical property may external activity." n208 This doctrine supplies distort the status Hegel ascribes to personality at least a framework to answer the question of and mental traits in relation to the will. Hegel intellectual property that most concerns Hegel. writes: It is a question we ignore today, but one that is Mental aptitudes, erudition, artistic skill, not easy to answer: what justifies the author in even things ecclesiastical (like sermons, alienating copies of his work while retaining , prayers, consecration of votive the exclusive right to reproduce further copies objects), inventions, and so forth, become of that work? subjects of a contract, brought on to a parity, A sculptor or painter physically embodies through being bought and sold, with things his will in the medium and produces one piece recognized as things. It may be asked whether of art. When another artist copies this piece the artist, scholar, &c., is from the legal point of Hegel thinks that the hand-made copy "is view in possession of his art, erudition, ability essentially a product of the copyist's own to preach a sermon, sing a , &c., that is, mental and technical ability" and does not whether such attainments are "things." We infringe upon the original artist's property. may hesitate to call such abilities, attainments, n209 The problem arises when a creator of aptitudes, &c., "things," for while possession of intellectual property does not embody his will these may be the subject of business dealings in an object in the same way the artist does. and contracts, as if they were things, there is The writer physically manifests his will only also something inward and mental about it, "in a series of abstract " which can be and for this reason the Understanding may be rendered into "things" by mechanical processes in perplexity about how to describe such not requiring any talent. n210 The dilemma is possession in legal terms. . . . n205 exacerbated by the fact that "the purpose of a Intellectual property provides a way out of product of mind is that people other than its this problem, by "materializing" these personal author should understand it and make it the traits. Hegel goes on to say that "[a]ttainments, possession of their ideas, memory, thinking, eruditions, talents, and so forth, are, of course, &c." n211 This concern for the common of owned by free mind and are something ideas is familiar. internal and not external to it, but even so, by In resolving this dilemma, Hegel says that expressing them it may embody [*338] them the alienation of a single copy of a work need in something external and alienate them." not entail the right to produce facsimiles n206 because such reproduction is one of the Page 34 77 Geo. L.J. 287, *

"universal ways and means of expression . . . proposition. The question is: Does more which belong to [the author]." n212 Just as he personality warrant more property protection? does not sell himself into slavery, the author This problem also has a "categorical" aspect keeps the universal aspect of expression as his -- different categories of intellectual property own. The copy sold is for the buyer's own seem to lend themselves to different amounts consumption; its only purpose is to allow the of "personality." Poetry seems to lend itself to buyer to incorporate these ideas into his "self." personality better than trade secrets, Hegel also identifies the instrumentalist- symphonies better than microchip masks. labor justification as a consideration against Should poetry as a category receive more granting full rights of reproduction to buyers protection than microchip masks. Should of individual copies [*339] of a work. Hegel some categories receive no protection at all admits that protecting intellectual property is from the personality justification? Finally, the "[t]he purely negative, though the primary, theory suffers from internal inconsistency in its means of advancing the sciences and arts." somewhat incoherent account of alienation. n213 Beyond this, Hegel says little. He 1. Varying Degrees of Personality in declares that intellectual property is a "capital Intellectual Property asset" and explicitly links this label to a later section in which he defines a "capital asset." One of the problems with the labor theory n214 There is considerable literature on how discussed in Part II is that some intellectual Hegel did not develop the idea of "capital" to products have no apparent social value or its logical conclusions, n215 but here "capital require no labor to produce, leaving these asset" can be understood as property which pieces of property unjustified by the labor has a greater tendency to permanence and a theory. The personality justification has the greater ability than other property to give its same problem with those intellectual products own economic security. that appear to reflect little or no personality from their creators. As with the labor theory, B. PROBLEMS IN APPLYING THE we can overcome this difficulty with a PERSONALITY JUSTIFICATION TO utilitarian principle [*340] that justifies INTELLECTUAL PROPERTY property rights on the grounds that they A property system protecting personality protect the "net gain" of personality achieved will have difficulty finding reliable indicia for by the entire system. This avoids the question when people do and do not have a "personality of whether or not personality is present in stake" in particular objects. The personality every case of intellectual property. Yet the justification also leaves some nagging personality justification has this same theoretical questions. Even if we reliably could "coverage" problem at a "categorical" level. detect when a person possesses a "personality With a controversial exception mentioned stake" in an object, we surely would find that below, there seem to be no categories of personality is manifested to varying degrees in intellectual property that are especially more different objects. This is the personality or less hospitable to the labor theory. This is counterpart to the varying amounts of labor not true with the personality justification. one "puts" into different objects. Neither Some categories of intellectual property seem personality nor labor is simply an on-off to be receptacles for personality; others seem Page 35 77 Geo. L.J. 287, * as if they do not manifest any "personality" of reaction of an individual upon nature. Even in their creators. the field of copyright these problems arise. While most of the personality-laden categories Poems, stories, novels, and musical works are protected by copyrights, copyrights protect are clearly receptacles for personality. The more than just personality-rich objects. Atlases same can be said for sculpture, paintings, and and maps are a good example. In the early prints. Justice Holmes aptly characterized days of oceanic explorations, mapmakers such works as "the personal reaction of an competed with one another on their claims of individual upon nature." n216 Another accuracy. Today, the same competition does receptacle for personality is the legal concept not arise because the generic information is of an individual's "persona." The "persona" is already there in the form of old maps and an individual's public image, including his publicly held government materials. n221 The physical features, mannerisms, and history. result is that maps have a tremendous n217 In the U.S., it is debated whether or not uniformity. There may be personality galore the personal should be considered intellectual in a map of Tolkien's Middle Earth, but not property at all. The answer to this question much in a roadmap of Ohio. That does not may turn on what justification we use for mean maps are absolutely devoid of intellectual property. personality. Certainly a new form of map The persona is the one type of potential manifests personal creativity, as in the case of intellectual property which is generally Peter Arno's revisions of the Mercator thought of as not being a result of labor. n218 projections. n222 Even in everyday maps, Even if the persona is considered to be a there can be artistic content or social product of labor, people would work on their commentary in the choices of color, identifying personas without any property rights being symbols, and information included. n223 necessary to motivate them. Therefore, the More difficult problems for the personality instrumental labor justification is not justification are posed by copyrightable necessary. In contrast, the persona is the ideal computer software and other technological property for the personality justification. No categories of intellectual property: patents, intermediary concepts such as "expression" or microchip masks, and engineering trade "manifestation" are needed: the persona is the secrets. These items usually embody strongly reaction of society and a personality. Property utilitarian solutions to very specific needs. We rights in the persona give the individual the tend not to think of them as manifesting the economic value derived most directly from personality of an individual, but rather as one's personality. n219 As long as an manifesting a raw, almost generic insight. In individual identifies with his personal image, inventing the light bulb, Edison searched for he will [*341] have a personality stake in that the filament material that would burn the image. n220 longest, not a filament that would reflect his The problems for the personality personality. Marconi chose to use a [*342] justification do not arise in justifying these particular wavelength for his radio because obvious expressions or manifestations of that wavelength could travel much farther personality, but with those kinds of intellectual than waves slightly longer, not because that property that do not seem to be the personal Page 36 77 Geo. L.J. 287, * wavelength was his preferred form of ignore the average attention span of audiences expression. or the limits of a budget; the artist in the plastic arts is constrained by the physical properties of In a report related to the recently enacted the materials; the architect faces these material microchip mask protection law, n224 the constraints with the additional limits of plot House Judiciary Committee discussed size, location, and zoning regulations. The attempts by some microchip inventors to computer programmer and the cartographer protect chip designs by copyrighting are further along the spectrum of constraint, photographs of the chips' layout as artistic but even they can embellish their works to suit designs. n225 This clear attempt to use a at least some of their own predilections. The system designed to protect personality-rich art genetic researcher [*343] or the aerospace for the protection of engineering designs engineer are even more constrained; their exudes irony. The House Committee slightest embellishments may be dangerous concluded, as most of us do, that engineering indeed. designs are characterless and without personality. As congressmen or consumers, The more a creative process is subject to we generally think that state of the art is not external constraints, the less apparent art. n226 personality is in the creation. At some point, these constraints on a particular form of Yet technology may not be categorically intellectual property may be too great to different from atlases and maps. The primary permit meaningful expressions of personality. goal of computer programs is to produce a We may determine that the personality particular result using as little software and justification should apply only to some genres hardware as possible. But writing programs, of intellectual property or that the personality like creating logical proofs, can involve a generally present in a particular genre certain aesthetic vision. n227 Within the warrants only limited protection. n229 constraints of efficiency, it is frequently possible to write a program a number of ways In the ideal situation, before we made such -- some simpler, some more byzantine; each a determination we would ask the creator what depicts a particular style for resolving the personality she sees in her creation. As mere problem. If there are ten ways to write a consumers we may think a genre of intellectual program of roughly the same efficiency, it property too constrained to permit expressions seems perfectly reasonable to think that the of personality, while the majority of creators in choice among the ten may demonstrate that genre may think that their works do personality. n228 express personality. Subtle manifestations of personality may be visible only to people It is an oversimplification to think that knowledgeable in that field. n230 Just as chess some genres of intellectual property cannot players can recognize particular moves as carry personality. This oversimplification reflecting the personality of certain players, avoids the true issue of the constraints of particular moves in a computer program or a economy, efficiency, and physical environment chemical process may be characteristic of a which limit the range of personal expression. particular inventor or group. Such constraints exist to some degree in every genre. Few movies or plays can afford to Page 37 77 Geo. L.J. 287, *

This subjective inquiry approaches object and creator is where personality is personality stake as being a question of visible. whether or not there is personality in the 2. Alienation and the Personality object. In other words, does the object show Justification others an aspect of the creator's self? This aspect of the personality-property connection Hegel regards alienation as the final focuses on the expression of the creator's will element in the agenda of an individual's through the medium of her creation. The relationship to the propertized thing. Viewed creation itself is merely a conduit for the as a single act, alienation is equivalent to expression of personality. Another type of abandonment: "The reason I can alienate my personality stake may exist, however. property is that it is mine only insofar as I put my will into it. Hence I may abandon . . . as a A person may claim property so that others res nullius anything that I have or yield it to the will identify him with the property. In this will of another. . . ." n232 case, the creator claims his property in order to create (rather than express) a particular persona. There is some intuitive appeal in this view This "externalization" accords with Hegel's of alienation, especially in a barter-exchange theory. Hegel argues that recognizing an framework. n233 Two people can exchange individual's property rights is an act of distinct objects if each thinks her own recognizing the individual as a person. n231 personality would be better expressed through That same reasoning applies to the the object presently owned by the other. externalization connection: if X owns a patent, Jessica can exchange her comic books for Ken's people will recognize him as a particular baseball cards if she has more interest in person -- the inventor of a unique innovation. baseball than in the exploits of Spiderman. Ken will engage in the same transaction if he There is a problem, however, with identifies with superheroes more than with the founding intellectual property rights upon baseball heroes collecting dust in his closet. such externalization. X can't just say "I want Each person increases the actualization of his people to identify me with the World Trade or her personality. Center" and expect this to justify his property claim to [*344] it. The individual must have In a money economy, however, the some internal connection to the claimed exchange may lose some of its intuitive appeal. property. This connection need not be that the An individual alienates his property for value object "expresses" the owner's personality. It which he can then invest in things which will may be simply that the owner identifies himself increase self-actualization above what it would with the object. With inventions, the object have been had he continued to own the may precede the personality stake, but with alienated property. Depending upon the time the scientist or engineer comes to identify degree of development, however, the himself with his scientific or technological individual might not be able to increase self- advances. Doppler became identified with actualization through future investment. One certain principles of sound, Edison with the can no longer be as certain that he will receive light bulb and gramophone, Bell with his a profitable return. A fragile money economy - telephone. The personality inquiry cannot just - subject to inflation and shortages -- threatens examine the object. The relationship between the prospect of translating value received into Page 38 77 Geo. L.J. 287, * increased self-actualization. A stable economy link to an object. But if the personal link does strengthens the prospect. not exist -- if the object does not express or manifest part of the individual's personality -- The risk of unprofitable investment, there is no foundation for property rights over however, is not the main problem. Alienation the object by which the "owner" may is more than just "giving up" something. Like determine the object's future. An owner's many of the rights encompassed by property, present desire to alienate a piece of property is the right to alienate X is the right partially to connected to the recognition that the property determine X's future. In an absolute sense, either is not or soon will not be an expression only the future decisionmaker -- the transferee of himself. Thus, the justification for property -- for X is determined, but in practice an act of is missing. This subtle control of the object's alienation usually [*345] establishes clear future does not jibe with foreseen future denial probabilities as to the future of the object itself. of the personality stake. This is true whether the alienation conveys land to a developer, sends a horse to a glue One way to explain this is to say factory, or sells weapons to terrorist that the personality justification is powerful for organizations. property protection, but that it fails to explain property exchange. Using Radin's terminology, To better understand this, imagine a the willingness to sell a piece of property system of depositing or redepositing objects in suggests that the property has moved from the a "community bank" for which, upon deposit, "personal" category to the "fungible" category. one received value coupons. The property, This follows because personal property is once in the bank, becomes a res nullius, and the defined as having an internal value for the bank would dispose of this property on a first- property owner in excess of possible external come/first-serve basis, much like the value. When a buyer comes forward offering a government auctions newly acquired lands or price acceptable to the owner, there is an unclaimed postal freight. external valuation of the property The difference between alienation and this commensurate to the owner's internal community bank is that most alienation valuation and the personality justification for involves some degree of determining the guarding rights to personal property vanishes. object's future. Imagine that Jessica can sell her Specific covenants and restrictions on new baseball card collection to David, an avid property suffer in the same way. A restriction collector, or to Nat, the restaurateur who is -- covenant, servitude, or easement -- opening a sports version of the Hard Rock acknowledges that the present owner has a Cafe and is looking for wall decorations. Now limited personality interest continuing into the Jessica's act of alienation involves the choice of future. Restrictions on real property, such as where and how the property will be used in preservation of particular natural features or the future. prohibitions on particular uses, seem like very This is the paradox of alienation under the honest claims to future [*346] personality personality model of property. The present stakes in property. By using a restriction, a owner maintains ownership because he person retains the specific stick(s) in the identifies the property as an expression of his bundle of property rights which will "contain" self. Alienation is the denial of this personal his continuing personality stake. Page 39 77 Geo. L.J. 287, *

The restriction turns a present owner's Alienation of intellectual property can take freedom to choose from varying courses of one of two basic forms. The first is its entire action into a future static condition inherent in alienation by selling, at one time, all rights to the property. A farm owner's right to cut the property. The second is the complete down a woods in the corner of his farm is alienation of copies of the property with transformed into a static condition when he limitations on how those copies may be used: sells the farm with a restriction against the selling of copies of copyrighted works, destroying those trees. This conversion objects displaying trademarks, or licenses to produces a static condition which continues use patented technology. n237 regardless of the evolving wishes of either the Alienation of the entire intellectual original owner or the new owner. This static property -- all rights to a trademark, [*347] condition replaces both the original owner's patent, or copyright -- has the same right and the new owner's right. With paradoxical problems as does the alienation of alienation, the condition becomes subject to the physical objects. If a person genuinely has no new owner's right. The original owner personality stake in a work, why should she alienated his property, betting only on the determine who publishes it, who markets it, or probability that the new owner would not who dramatizes it? If an inventor foresees that pursue a course of action that offends him. an invention will neither manifest his vision of It is more difficult to defend a personality the world nor speak as an expression of his justification for restrictions than it is for identity, why should he derive economic value complete alienation. We often use our from it? As with physical property, on most property rights to alter an object to suit our occasions the complete alienation of personality. A restriction destroys the intellectual property is an exercise of rights flexibility by which property becomes and over property in an act that, by its nature, continues to be a reflection of those who own denies the personality stake necessary to it. This flexibility, of course, may not matter to justify property rights. an original owner seeking to preserve This paradox of personality and alienation memories, but it will matter a great deal to the is more acute with intellectual property new owner seeking to maximize his personal because, in the absence of any physically expression. Perhaps it is no that even tangible res (other than the copy, which is not more so than covenants disallowed for itself the entirety of the property) that is violating public policy or constitutional distinct from the creator's personality, it is provisions, n234 covenants creating difficult to conceive of abandonment. If there affirmative obligations on real property are is no "thing" to abandon, how is alienation generally limited n235 and "a general possible? Abandonment of an idea is arguably restraint upon alienation is ordinarily invalid." alienation of personality -- a prohibited act in n236 Such a restraint would be ideal for an Hegel's system. n238 owner who wishes to alienate and to control the object's future. It would permit him to When I take the rock from my shelf and choose the new owner (whose probable use of toss it back onto the Corsican beach, I do so the property can be known) and restrict to because I no longer identify with the memories whom the new owner can alienate. the rock evokes and no longer see it as Page 40 77 Geo. L.J. 287, * manifesting a part of my life. We go through with the works of the abandoned period. this same process when we put old knick- David Bowie can move beyond "Ziggy knacks in a garage sale or send old clothes to Stardust" n239 and David Stockman can the Salvation Army. The res exists repudiate his doctrine of supply-side independent of our personality, so it is not economics. n240 Philosophers are familiar incoherent to claim that there is no longer a with arguments that there is no reason to personality stake in the res. identify the works written by Jorge Luis Borges in 1956 as a manifestation of the This abandonment of a personality stake personality of Jorge Luis Borges as of 1986. For will be incoherent if there is no recognizable Borges in 1986, his earlier works may indeed res that exists beyond the individual's have seemed liked a res nulli. n241 expression. The question is whether the created work exists independent of the creator: Hegel seems to have taken a contrary view, does the expression turn to artifact? considering the complete alienation of Performing artists often war with writers and intellectual property to be wrong -- morally composers over this issue. Seeking maximum analogous to slavery or suicide because it is the freedom, the performers view the particular surrender of a "universal" aspect of the self. play or musical composition they are using as n242 Selling an entire piece of intellectual a device for their own expression, a res through property seems like a lesser surrender of the which they can express their personalities. Yet self, but Hegel considered it too much a the writer or composer may not think the res is "universal" part of the individual to be abandoned at all. permitted. He seemed to identify the intellectual object as an ongoing expression of Playwrights versus actors, composers its creator, not as a free, abandonable cultural versus conductors and orchestras -- these two object. Supporting Hegel's view, we can note sides will always be locked in one another's that even when the creator thinks he has arms, in a grip that is both mortal combat and abandoned the object, he may still identify mutual need. It is possible to draw many with it enough to oppose certain uses for it. comparisons and analogies to this issue. There Even after "abandoning" a visual image, the is the familiar comparison to the rights of artist might oppose its use as a by a parents -- the author having a parental stake in fringe political or religious organization. her work. A less familiar analogy might be made to the questions of original intent and The alienation of copies of the intellectual interpretivism in constitutional jurisprudence. property offers a different set of [*349] issues. An owner may or may not limit the uses to The "interpreters" believe that intellectual which the alienated copies may be put. property can be, and usually is, [*348] However, in either case the original owner still abandoned. Their vision is reinforced by both retains rights over the property. This type of popular notions of artistic development and alienation does not fall prey to the paradox of philosophical notions of . A complete alienation: there is no exercise of writer may simply no longer identify with property rights (alienation) after an "owner" no something he previously wrote. A Picasso or a longer has a personality stake in an object. It Le Corbusier may change radically the style of also is immune from Hegel's objection to the his work and, in the end, no longer identify selling of a part of oneself. Unlike physical Page 41 77 Geo. L.J. 287, * property, the owner can, in this way, alienate because it allows the personality to continue. the intellectual property while keeping the Second, this approach could justify property "whole" of the property and himself. rights for after-the-fact development of personality interests without requiring [*350] Not only does Hegel's personality theory such interests in the property at the time the pose no inherent objection to this kind of property rights are granted. alienation of intellectual property, it also provides affirmative justifications. Hegel The personality theory provides a better, focuses on one such justification -- concern for more direct justification for the alienation of the economic well-being of the intellectual intellectual property, especially copies. The property creator. n243 alienation of copies is perhaps the most rational way to gain exposure for one's ideas. At first blush, this economic rationale This is a non-economic, and perhaps higher, seems far removed from the concerns of form of the idea of recognition: respect, honor, personality theory, n244 yet it can be recast and admiration. Even for starving artists into the framework of the personality theory. recognition of this sort may be far more From the Hegelian perspective, payments from valuable than economic rewards. intellectual property users to the property creator are acts of recognition. These Two conditions appear essential, however, payments acknowledge the individual's claim to this justification of alienation: first, the over the property, and it is through such creator of the work must receive public acknowledgement that an individual is identification, and, second, the work must recognized by others as a person. n245 receive protection against any changes "Recognition" involves more than lip service. unintended or unapproved by the creator. If I say "this forest is your property" and then Hegel's prohibition of "complete" alienation of proceed to flagrantly trespass, cut your timber, intellectual property appears to result from his and hunt your deer, I have not recognized recognition of the necessity for these two your property rights. Similarly, verbal conditions. While he would permit alienation recognition of an intellectual property claim is of copies, and even the rights to further not equal to the recognition implicit in a reproduction, n246 he disapproves alienation payment. Purchasers of a copyrighted work or of "those goods, or rather substantive licensees of a patent form a circle of people characteristics, which constitute . . . private recognizing the creator as a person. personality and the universal of . . . self-consciousness." n247 Such alienation Furthermore, this generation of income necessarily occurs if the recognition of the complements the personality theory in as connection between a creator and his much as income facilitates further expression. expression is destroyed or distorted. When the When royalties from an invention allow the first condition is violated, this recognition is inventor to buy a grand piano he has always destroyed; when the second condition is wanted, the transaction helps maximize violated, it is distorted. personality. But this argument tends to be too broad. First, much income is used for basic C. THE PERSONALITY JUSTIFICATION necessities, leading to the vacuous position IN U.S. LAW that life-sustenance is "personally maximizing" Page 42 77 Geo. L.J. 287, *

These two conditions are recognized in a prerequisite to copyright -- but this French and German intellectual property law uncertainty was dispelled in the 1903 case of under the general name of "moral rights." Bleistein v. Donaldson Lithographing Co. n254 n248 For both copyright and patent owners, In Bleistein the plaintiff sought to protect there is the right to be properly identified with three lithographs used as advertisements for a one's creations. n249 For copyright owners, circus. Against the defendant's calls to require there also exists an inalienable right to guard some level of artistic achievement before the integrity of a work against change that conferring copyright, the Supreme Court held would damage the author's reputation or that copyright of the prints was not barred destroy his intended message. n250 because of their "limited pretensions." n255 [*351] Although this article will not Writing for the majority, Justice Holmes wrote critique these continental laws in depth, a that "[a] very modest grade of art has in it couple of observations are in order. First, even something irreducible, which is one man's in these systems, there is no clear right for alone. That something he may copyright patent owners to protect the integrity of their unless there is a restriction in the words of the creation, although they do enjoy a right to have act." n256 Holmes was prepared to cast a their name attached to the patent. This may wide net to recognize tiny bits of [*352] reflect an implicit social judgment that the individual personalities: "Personality always degree of personality reflection in most contains something unique. It expresses its patented works is different and smaller than in singularity even in handwriting. . . ." n257 most copyrighted works. Second, by Perhaps Bleistein marks only a momentary forbidding alienation of certain rights in flirtation with the personality justification. intellectual property, these civil systems Indeed, it is the Supreme Court's only prevent the complete alienation of the intellectual property opinion that uses the property: "transfer of the copyright as a whole word "personality" as a juridically significant between living persons is basically precluded concept. There are few cases inheriting -- and on account of the elements of the right of explicitly averring -- Holmes' reasoning. n258 personality (droit moral)." n251 Yet both the notions it exorcised from There are no provisions in American American law and the notions it enshrined are copyright law giving an author "moral rights" significant. to protect against distortion and to ensure Bleistein rejected any "great art" recognition. n252 It is interesting, however, to requirement as too high a threshold for note how the personality justification has copyright. Such a requirement would have subtly affected American copyright doctrine. limited property protection to those few works n253 The property interest in a work does not in which it is clearly evident that the work depend on any external measure of artistic, came from a particular personality, and was of cultural, or social worth in any field covered such a nature that most other personalities by copyright. The world is full of bad, but could not have created it. Commercial art or nonetheless personal, poetry and of paintings realist art would be left unprotected under this that look like Rorschach images to everyone standard because it lends itself to almost but the painter. Initially there seems to have mechanical, automatic production by any been some confusion as to whether worth was Page 43 77 Geo. L.J. 287, * techniquely skilled artisan, and contains little "the hypostated average practitioner, indication of the creator's personal expression. acquainted with all that has been published Creations reflecting an easily recognizable and all that has been publicly sold." n266 In personality expression would be protected or copyright law, there is no such external at least eligible for protection. comparison; copyright is not denied because the work could be done by some hypostated Additionally, the "great art" requirement artist or computer program capable of implicitly included a social judgment of the "writing." The benchmark is subjective: value or worth of the creation. Lowering this whether the creator has brought something standard to a "modest grade of art" n259 subjective to the external world. This is the meant a shift in focus from society's judgment Holmesian "modest grade of art." of an object's worth to a subjective, personal judgment of that worth. Shifting from an The "modest grade of art" standard also is artistic merit standard (which demands more an apt characterization of trademark law. "objective" uniqueness) to the Bleistein test Indeed, the history of trademarks may bear grants protection to more expressions of witness to the competition between the labor individuality. and personality justifications of intellectual property. When the Supreme Court originally The Bleistein standard arguably is no more refused to grant property status to trademarks, connected to personality than are the patent it largely was because there is no apparent law standards of "uniqueness" and "novelty." labor in their creation. n267 However, if the The Supreme Court has never squarely Court had instead adopted a modest grade of addressed this question. n260 Still, the art standard, the unique wavy script of the language in copyright cases suggests that Coca-Cola label or the ravenous "D" courts are recognizing something besides the consuming the vowels in the Dior logo surely novelty of a previously unknown technology. would have been recognized as the reflection In the nineteenth-century case of Burrow-Giles of an individual creator. Lithographic Co. v. Sarony n261 the Supreme Court held that a [*353] photograph may be When protection for trademarks was copyrighted if it is "an original work of art." finally granted, it seemed moved by the n262 More recently, the Court generously unseen hand of the personality justification. found that "those aspects of [President Ford's The original scope of trademark protection, memoirs] . . . that display the stamp of the both under common law n268 and the first author's originality" were protected. n263 federal statute, n269 limited protection to "fanciful" and "arbitrary" marks. n270 Such Holmes' "irreducible something" has marks include [*354] both abstract symbols become "[t]he author . . . contributing and "words" coined to be marks, n271 as well something 'recognizably his own'" n264 -- a as words applied to objects in an arbitrary standard quite different from patent law's manner, such as the "Stork Club" as a name for strict requirement of new additions to existing a nightclub. n272 Arbitrary, fanciful, and technology. Patent protection is denied to "inherently distinctive" marks n273 are the minor advances that could be achieved by "an kinds of marks that show some creativity and ordinary mechanic acquainted with the personality. Labels like "Stork Club" tend to business" n265 or, as Judge Hand called him, have personal stories or inspirations behind Page 44 77 Geo. L.J. 287, * them. At the opposite end are impersonal news stories and cartoons. Ultimately, they labels such as "Raisin-Bran" n274 and "100% must stand as a bulwark against finding libel Liquid Centers," n275 labels left unprotected in printed material or copyrighted works in because they are purely descriptive. general. It would be very odd jurisprudence which had rigorous tests for defamation when Trademarks are frequently justified, in the the defamer was using his own words, but words of one commentator, by the "consumer's made it easier to show defamation when the right to be told the truth." n276 The Supreme victim used the victim's own expression. Court itself has endorsed trademark propriety as furthering the "consumer's [right] . . . to In place of the defamation strategy, I purchase a given article because it was made suggest using two civil rights approaches to by a particular manufacturer." n277 However, protect intellectual property. Although this justification based upon consumers' rights generally unrecognized, there are civil liberties is weak. A real consumer's right to the facts arguments available that functionally can would be protected by truth-in-advertising or provide some "moral rights" that protect the misrepresentation laws, not by trademark. personality of the creator as it is manifested in Trademark is a right of expression for the the creation. manufacturer, not a right of the consumer to 1. The Privacy Right Argument receive information. n278 In fact, trademarks fulfill the recognition aspect of the personality For centuries unpublished works have theory of property by providing an important been protected by copyright, either statutorily means of securing respect and recognition to or under common law. Copyright over those who originate the items bearing the unpublished works can be explained by trademark. economic considerations -- allowing a person to retain the economic value in an unpublished [*355] D. CIVIL RIGHTS SUPPORT FOR work until he or she chooses to exploit that A PERSONALITY JUSTIFICATION value. Yet the privacy of the individual also is The most frequently attempted bridge from at issue. We always allow people to shape existing American law to more control over their public images; this is part of having intellectual property has not been civil rights, private and social selves. n281 Similarly, an but defamation claims. Common examples author should be able to guard a work until include a playwright suing when a director she is satisfied that the work warrants public "degrades" the play, or a novelist suing the consideration. It also is possible that a person producer when the movie script focuses on sex may intend for his writings or art never to and violence in a way the novel does not. reach the public, having created the work solely for his private pleasure and that of his Defamation claims are perhaps the worst intimates. Seeing the personality issues method of protecting personality interests involved, Samuel Warren and Louis Brandeis within existing doctrine because any [*356] declared that the right to privacy "distortion-as-defamation" doctrine will should allow a person to prevent publication eventually have to be reconciled with New York of private letters, even when the would-be Times v. Sullivan n279 and its progeny. n280 publisher was the recipient of the letters. n282 These cases have established rigorous standards for proving libel and defamation in Page 45 77 Geo. L.J. 287, *

Once a work has been published, the force arguments. To explore those different of the Warren-Brandeis theory seems to ebb. If arguments it might be helpful to start with the author willingly has placed his works Professor Lloyd Weinreb's suggestion that the before the public, how can he argue that he has fourth amendment's protection extends to two some privacy attendant to the works? One different types of privacy: "privacy by might retort that individual privacy is not presence" and "privacy in place." n287 Privacy completely abandoned by the act of in place is the individual's [*357] privacy introducing a work into the public arena. interest over certain locales: homes, cars, Permitting the public to see part of one's self -- luggage, etc. Privacy by presence is the whether in an autobiography or a revealing individual's interest in being able to move hemline -- surely does not oblige one to reveal through public in daily life with virtual more of one's self. There is still the privacy anonymity. n288 argument that no one should be forced to At first glance, the privacy argument in the reveal more than he intended to reveal. Shostakovich and Geisel cases can be taken as an A series of cases have recognized, as a argument for anonymity. Shostakovich's principle, that dissemination of a work under position was that even if his music was used in the author's name and against the author's the movie, he should be able to prevent use of wishes may infringe privacy rights. This his name. In essence, he presented a claim to principle, however, almost invariably remains stay out of public notice. The unauthorized dicta. In Shostakovich v. Twentieth Century-Fox attachment of one's name to a film or to dolls Film Corp. n283 the right was recognized, but says nothing about one's private life; it reveals the plaintiffs did not succeed in preventing the no personal facts which one planned to keep appearance of their names as the composers of private. It is purely a matter of avoiding the music used in an anti-Soviet film because unwanted attention. their music already was in the public domain. The analog of an invasion of the privacy of n284 In Geisel v. Poynter Products, Inc. n285 place is the revelation of personal facts an Theodor Suess Geisel could not succeed in a individual had intended to keep private. privacy action against those using "Dr. Suess" Indeed, revealing such personal facts often attached to toy dolls because "Dr. Suess" was requires an actual breach of privacy of place. judged to be his trade name or nom de plume, Snooping is needed to find the love letters in a not his proper name. n286 desk or the drugs in the dresser. These might It is instructive to note the posture of the also be called attacks on our "substantive privacy arguments made by both Shostakovich privacy." This is not a privacy claim that one and Geisel. On the surface, the plaintiff in each should be able to remain unknown or case claimed that public use of his name anonymous, but that substantive, personal against his will invaded his privacy. information which the person did not intend to Interestingly, this is the reverse of the right to reveal should not be revealed. demand that one's name be used publicly with Such unauthorized revelation could occur one's work. when intellectual property is altered to reveal The privacy argument in Shostakovich and compromising information about the creator -- Geisel is only one of several distinct privacy for instance, changes in a semi- Page 46 77 Geo. L.J. 287, * autobiographical work about a homosexual someone had published an explanation of the relationship. When the author chooses not to titles discovered from some private material of release the work, as with E. M. Forster's the composer. In Strauss' case his career Maurice, the privacy claim follows the prospects could have been hurt significantly, Brandeis-Warren theory regarding an author's since he had chosen a title paying homage, control over letters. n289 But what about albeit ambiguously, to both Kaiser Franz Josef when the author releases the work as a and Kaiser Wilhelm. heterosexual story, as with Edward Albee's What distinguishes such revelations from Who's Afraid of Virginia Woolf? or W. Somerset the "revelations" of a critic announcing the Maughm's Of Human Bondage? When a "real" meaning of the title is that the repertory company tries to produce an all-male revelations discovered from the author's version of Who's Afraid of Virginia Woolf? does private materials can be directly attributed to Edward Albee have a legitimate substantive the author himself. It is public revelation from privacy claim? n290 the horse's mouth shorn of the buffering effects If an author produces an edited, final draft of intimations, third party reports, and rumors. and someone attempts to reinstate revealing It is forcing the writer himself to make public lines previously removed by the author, the what he intended to keep private. author should possess a substantive privacy This should cause us to reconsider what claim against the revision. n291 Grounds for was at stake in the Geisel and Shostakovich such a claim should exist if someone rewrites cases. These cases presented more than a claim an author's work to make explicit what the for anonymity and for remaining out of public author only intimated when what was view; those claims were counterparts of the revealed were private [*358] prejudices or life substantive privacy we have been considering. details. Such protection, though, might create Edward Albee, Shostakovich, and Geisel all problems. We would not want the publication opposed publication of a message that could of a scholarly thesis showing how particular be mistaken as theirs. Edward Albee's themes emerge and reemerge in a writer's substantive privacy concern was to prevent work to constitute a privacy violation. How, publication of intimate details descriptive of then, would we settle the issue of an editor him. However, Shostakovich's and Geisel's who puts explanatory notes into the original concerns are different. Shostakovich opposed text against the writer's wishes? It seems being identified with the substance of an anti- innocuous to explain that "King Billy" refers to Soviet movie. Geisel opposed being identified Kaiser Wilhelm in Yeats' Lapis Lazuli, but it with the marketing of a doll. These concerns could have been more harmful to add notes to do not really fit a privacy argument since the premiere program of Berlioz's Symphonie nothing private is being revealed. It is a matter Fantastique describing how it embodied his of distortion. Such distortion can be attacked secret passion for an actress. through defamation doctrine, but the first When Johann Strauss first released the amendment might provide another means to Emperor Waltz or Satie published his piano protect this interest. piece En Habit de Cheval the of the 2. The Freedom of Expression Argument respective titles were intentional. n292 Each composer would have been outraged if Page 47 77 Geo. L.J. 287, *

First amendment freedom of expression audience understanding is that speech is a often is portrayed as the enemy of [*359] purely therapeutic activity. n299 Yet this, too, intellectual property rights. Proponents of is dubious because a speaker's ego would cutting back copyright protection usually hardly be [*360] reinforced if he thought the invoke free speech and the marketplace of audience did not understand him. ideas, if not a direct appeal to the first Any system that emphasizes that the amendment, as a "trump" over the copyright audience should receive the speaker's intended clause. Recent articles, typify this approach. message must protect the speaker's expression One argues that "[a] First Amendment defense from distortion. It especially must protect to [copyright] infringement actions . . . would expression from systematic distortion that the guarantee the free dissemination of ideas speaker cannot overcome. Major public conveyed through visual media." n293 figures, for example, are the focus of intensive Another includes a milder observation that "[o] reporting and face commensurate distortion of ur deep rooted tradition of free speech their expressions. But public figures stemming from the first amendment's mandate theoretically possess the means to counteract requires the same balance of interests when a this distortion by virtue of their status as creator alleges violations of his personal, rather public figures and the accompanying access to than pecuniary, rights." n294 and ability to clarify their expressions through While these arguments may be persuasive, the media. they face a potentially powerful pro-copyright When the individual is relatively powerless first amendment counterargument which vis-a-vis those who might distort his might be stated as follows: freedom of expression expressions, the legal system can compensate is meaningless without assurances that the by creating protective mechanisms. American expression will remain unadulterated. n295 Free libel doctrine expresses sensitivity to the speech requires that speech be guaranteed varying ability to overcome such false reports. some integrity. It follows that if intellectual The public figure receives less protection than property is expression, it merits the same the private person, in part, because the public guarantee. figure has greater ability to combat distortion. To better see this connection, consider the n300 milieu in which free speech exists. At times, Copyright protects written and artistic constitutional interpreters have treated free expressions that generally are protected by the expression as an end in itself. n296 At other first amendment. In the framework described times, free speech has been viewed as a means above, the artist or writer is the speaker, and of furthering other goals such as democratic the issue would be his relative power vis-a-vis participation n297 and market efficiency. the medium through which he communicates. n298 All of these approaches require that the In the case of writers, there may be very little speaker's audience receive his intended opportunity to correct distortions in meaning message, or something approximating it. If introduced by publishers and editors. Few of speech is divorced from the speaker's intent, us have the printing resources of a Random both market efficiency and democratic House or The Miami Herald. We may be able to processes are hindered. The sole justification turn to alternative publishers to print our for free expression that seems not to require Page 48 77 Geo. L.J. 287, *

"correct" views, but even this alternative National Committee n307 touches the heart of requires the cooperation of people who still the matter. Although writing about access to might distort our intent. media, the basic concern applies to copyright: One need not turn to Soviet publishing [I]n the absence of an effective means of practices n301 to find prospects for distortion communication, the right to speak would ring that can interrupt the communicative link hollow indeed. And, in recognition of these between the person of letters and his audience. principles, we have consistently held that the Reader's Digest's condensed books, ABC First Amendment embodies, not only the Television's editing, and the American abstract right to be free from censorship, but Repertory Theatre's innovative interpretations also the right of an individual to utilize an all stand as examples of the possible appropriate and effective medium for the frustration of the "speaker's" intent. expression of his views. n308 In Gilliam v. American Broadcasting At issue is not just the right to use an Companies, Inc. n302 the British comedy show appropriate and effective medium, but also to Monty Python's flying Circus successfully make a particular medium appropriate and enjoined the ABC network [*361] from effective. The goal is to ensure that printed broadcasting radically edited versions of the and published materials effectively convey the Monty Python comedy programs. ABC had creator's expression. removed twenty-four minutes from each Even if I have overstated the degree of ninety-minute show. n303 The Second Circuit distortion that occurs or is likely to occur, found that "the truncated version at times commentators indicate that the changing omitted the climax of the skits . . . and at other conditions of the information era will place an times deleted essential elements in the increasingly higher premium on the free flow schematic development of a story line." n304 of ideas [*362] and a commensurate pressure The court concluded: to reduce copyright protection. n309 Writing We therefore agree with Judge Lasker's twenty years ago Benjamin Kaplan accurately conclusion that the edited version broadcast by summarized this view: "as the imperium in ABC impaired the integrity of appellants' work communications passes from books to and represented to the public as the product of electronic manifestations, as the 'Gutenberg appellants what was actually a mere caricature galaxy' decays, not only is the relationship of their talents. We believe that a valid cause between author and audience radically of action for such distortion exists and that changed but the author's pretentions to therefore a preliminary injunction may issue. . . individual ownership and achievement are at a . n305 discount." n310 Cases of this sort presently are treated as The notions of individual creativity and contract disputes or matters to be decided personal achievement in writing and the arts under equitable principles, n306 but they risk replacement by an attitude that ideas are could be collected and made the building just plucked from the air by anyone. This is materials for a first amendment claim built into the manna-from-heaven mentality that earlier I copyright protection. Justice Brennan's dissent characterized as antithetical to the labor theory in Columbia Broadcasting System v. Democratic of intellectual property. It is not difficult to see Page 49 77 Geo. L.J. 287, * how, at its extreme, it also is at odds with the systems offer both increased centralization and personality theory. Some reduction in the increased decentralization, undoubtedly perceived personal achievement of producing forcing the author to do more on-going a copyrighted work need not spell the end of surveillance. After a publisher has printed a copyright protection any more than this book, the author can rest tranquil if he is attitude toward scientists has caused us to satisfied with the text. Authors will rest less eliminate patents. comfortably when their works are published on a computerized databank that at any time Such a deterioration in the of can be centrally altered. n312 individual achievement is less probable than the rise of a countervailing attitude -- what New technology also raises new economic Stephen Stewart calls "consumer politics" concerns that may increase the need for n311 -- demanding the greatest supply of protection of the expression. Historically, the copyright material at the lowest cost, no matter unauthorized publisher faced an unprofitable what the long-term effects. New technology environment. First, the pirate faced publishing tends to fuel this new demand by eliminating costs similar to those of the legitimate impediments to infringement. Video tapes of publisher -- fixed costs that far exceeded the movies, for example, are copied easily whereas cost of royalty payments avoided by piracy. films can be copied only with great difficulty. This meant that the pirate's ability to A problem is developing further on the underprice authorized publishers was limited horizon as libraries and individuals come to to his savings in royalties not paid. depend on on-line or stored data computer Furthermore, the original publisher usually systems for access to what presently are enjoyed a market-introduction advantage. printed materials. In such systems, undetected These "barriers to entry" have been steadily alteration of texts can occur much more readily eroded by developments in the past decades. than presently possible. A disgruntled Scanning devices allow the pirate to create computer user can change a single computer computer files of a book directly from an file, or an unknown central authority could authorized copy, without retyping the text rewrite everyone's version of a text with an manually. This lowers the pirate's production efficiency that might have dazzled Hitler's costs and diminishes the time advantage book burners. With Orwellian humor, enjoyed by the authorized publisher. Desktop Harvard law students a few years ago printers allow nearly anyone to produce high produced a campus musical on a legal quality reproductions of (possibly altered) totalitarian world run by a vanguard of Critical texts, logos, and insignias. n313 The less Legal Studies scholars bolstering their control sophisticated pirate might discover that these by changing precedents in LEXIS as the need days it is frequently cheaper to photocopy a arose. book than to buy a published copy. This is especially true with hardbound books of 300 The rise of the printing press actually pages or less. strengthened the author's ability to protect his work. n312 By centralizing the reproduction We know that the author has an interest in process, the printing press permits the author preventing such activities. Society's interest in to deal with one person at one time, to insure preventing distortions and preserving original the [*363] integrity of the text. Computerized forms is less obvious. As Roberta Kwall Page 50 77 Geo. L.J. 287, * writes, "[p]rotection for creators' personal survive. Changes, or "mutations," increase the rights . . . enables society to preserve the longevity and usefulness of the idea or integrity of its cultural heritage. The public's expression. right to enjoy the fruits of a creator's labors in Yet even a marketplace of ideas calls for original form and to learn cultural heritage some limited protection of expression because from such creations has no time limit." n314 of market imperfections. For a new product's The preservation of cultural works has value to be tested properly it must cross some become increasingly important to [*364] all threshold of available outlets, visibility, and modern societies, but what counts as effective time on the market. A passing sense of fashion preservation varies with the cultural object. It might destroy an expression that, with time, is not enough to preserve music scores in a otherwise would establish itself in the market. library basement if no one plays them or no Perhaps the market is actually very imperfect. one knows the tempo at which they should be Society often does not recognize a good idea played. The level or degree to which an for decades because of tremendous inertia in original will be preserved is proportional to the realm of societal beliefs and values. The available resources, but our society of relative marketplace's evaluation of truth and value in abundance should preserve the original form ideas might work so slowly that we would of a work so that it may contribute effectively want to compensate by requiring at least a to our on-going cultural discourse. generation to pass before discarding or altering an idea. Such a system would result [*365] in A system that actively protects expression wider social interest in protecting the integrity, guarantees that the most radical and or "personality," in expressions. unconventional voices will survive. n315 The less respect a system accords particular IV. CONCLUSION expressions, the more likely that those Twenty years ago, in a lecture at Columbia expressions will disappear or will be altered to Law School, Benjamin Kaplan applied the fit conventional thinking. Even if the quantity pragmatist's lens to intellectual property and of expression remains the same, the content concluded as follows: may be pasteurized into a dull conformity. n316 Protection of expressive integrity Examining the view from the top of the advances systemic evolution by countering the hill, I find one temptation easy to resist, and conformist pressures that befall unusual that is to sum up copyright with just the word messages. "property" or "personality" or any one of the other to which scholars, foreign and A strict Darwinian marketplace of ideas domestic, have been trying to reduce the might serve as a foundation to oppose legal subject. . . . [C]haracterizations in grand terms protection for the content of expressions. In then seem of little value: we may as well go such a view, valuable ideas and expressions directly to the policies actuating or justifying will always survive because value is an the particular determinations. n317 evolutionary armor. Ideas that are likely to die should not be protected because they have This Article has looked to the social inferior value. In this Darwinian vision, ideas policies and the judicial determinations adapt to win over the world or at least to underlying our system of intellectual property, but it has done so while testing two grand Page 51 77 Geo. L.J. 287, * characterizations. There is a purpose to such Earlier I suggested that the personality characterizations. Husserl once observed that theory might justify rights to protect [*366] "tradition" meant only that the of one's private property without justifying rights the past had been forgotten. Of course, it is to alienate that property. I must add, as a inevitable that the details of the past will be possible corollary, that the labor justification, lost. That means that we have a choice with its emphasis on value maximization, between unreflective tradition and grand might legitimate alienation and value theories; I find the latter a preferable way to exchange without safeguarding rights to keep capture and condense a history. The grand particular objects merely as "possessions." In characterization can be tested, more this way, the two theories may compensate for thoroughly than the tradition, as it is used as a each other's weaknesses. guide for new situations. There are two reasons to seek out such Both of the grand theories for intellectual grand generalizations to explain the social property -- labor and personality -- have their institution of intellectual property. The first is own strengths and weaknesses. The labor that "labor" and "individuality" have much justification cannot account for the idea whose more populist appeal than "property." To inception does not seem to have involved return full circle, rights to labor and rights to labor; the personality theory is inapplicable to individual expression do have much more of a valuable innovations that do not contain siren's call than property rights. The second elements of what society might recognize as reason, applicable to all social institutions, is personal expression. The personality that we cannot avoid general characterizations. justification has difficulty legitimating Our only course is to face such generalizations alienation, while the labor explanation may squarely and assemble them consciously. have to shuffle around Locke's non-waste condition. FOOTNOTES: At the same time, the two justification seem n1 The Declaration of Independence para. 1 to apply more readily to intellectual property (U.S. 1776). than to the property they are usually called upon to legitimate. The Lockean labor theory n2 The heralding article on this subject is applies more easily because the common of Reich, The New Property, 73 YALE L.J. 733 ideas seems inexhaustible. The Hegelian (1964); see also Goldberg v. Kelly, 387 U.S. 254, personality theory applies more easily because 264 (1970) (finding sufficient private interest in intellectual products, even the most technical, welfare payments to warrant due process seem to result from the individual's mental protections in termination cases). processes. As for Hegel's interests in using n3 408 U.S. 564, 577 (1972). property rights to secure recognition for the n4 See generally G. HEGEL, PHILOSOPHY individual, intellectual property rights are a OF RIGHT PP41-45 (T.M. Knox trans. 1967) powerful instrument to this end because the res (1821) (individual demonstrates ownership of is not merely seized by the individual, but property by imposing his will on it and rather it is a product of the individual. thereby "occupying" it); Stillman, Property, Freedom, and Individuality in Hegel's and Marx's Page 52 77 Geo. L.J. 287, *

Political Thoughts, in PROPERTY, NOMOS obviates the accidential character which a XXII, at 130, 134 (J. Pennock & J. Chapman eds. snap-decision has and which a numerical 1980) (same); see also sources cited infra note majority may acquire"). Hegel emphasized the 170. landed class' moral authority and independence as their virtues in government. n5 Professor Richard Rorty argues that Id. PP305-06. "mirror imagery" has been the foundation for the Cartesian and Kantian philosophical n9 See E. BURKE, supra note 8, at 316 traditions. R. RORTY, PHILOSOPHY AND ("Whenever the supreme authority is vested in THE MIRROR OF NATURE 12 (1979). Rorty a body so composed, it must eventually probably would not object to the mutual produce the consequences of supreme reinforcement of justification and law, but authority placed in hands of men not taught would probably claim this work is more habitually to respect themselves; who could analytic -- and flawed -- as "an attempt to find not be expected to bear with moderation . . . a nonhistorical conditions of . . . [an] historical power, which they themselves . . . must be development." Id. at 9. Professor Laurence surprised to find in their hands."). Tribe has also used the mirror image to n10 Id. at 317. condemn the Supreme Court's narrow interpretation of the equal protection clause in n11 See id. at 324 ("[t]he power of recent decisions. L. TRIBE, perpetuating our property in our families is CONSTITUTIONAL CHOICES 238-45 (1985); one of the most valuable and interesting Tribe, The Supreme Court in the Mirror of Justice, circumstances belonging to it"); see also G. 4 JUST. DEPT. WATCH 1 (1981). HEGEL, supra note 4, P178 ("The natural dissolution of the family by the death of the n6 P. J. PROUDHON, WHAT IS parents, particularly the father, has inheritance PROPERTY? AN INQUIRY INTO THE as its consequence so far as the family capital is PRINCIPLES OF RIGHT AND OF concerned."). GOVERNMENT 11-12 (B. R. Tucker trans. 1966) (Paris 1840). In the eighth and ninth books of the Republic, Plato avers that the best government n7 Marx quickly grasped the fallacy of is an aristocratic state led by a propertied class. Proudhon's position. See Marx, On Proudhon, Yet the drive for property eventually produces reprinted in 2 KARL MARX AND FREDERICK an undesirable oligarchy with a propertyless ENGELS, SELECTED WORKS 25-26 (U.S.S.R. underclass: "such a state is not one, but two pub.). states, the one of poor, the other of rich men; n8 See E. BURKE, Reflections on the and they are living on the same spot and Revolution in France, in 2 THE WORKS OF always conspiring against one another." EDMUND BURKE 277, 324 (George Bell & PLATO, REPUBLIC 303 (B. Jowett trans. 1986). Sons pub. 1905) ("property . . . tends the most n12 Lincoln applied for and was granted to the perpetuation of society itself"). Hegel U.S. Patent No. 6,469 (May 22, 1849). similarly advocated an important role in social stability for the landed class. HEGEL, supra n13 Lewis (1845-1890) was a black note 4, P313 (a chamber of landed gentry "is a American sculptress known for her surer guarantee for ripeness of decision and it neoclassical busts and medallions. She is an Page 53 77 Geo. L.J. 287, * especially apt example because royalties from n21 See infra notes 217-20 (discussing copies of her busts supported her move to concept of persona and property interest in Rome, where she established her studio. V. same). PORTER, MODERN NEGRO ART ART 58 n22 There are two international copyright (1943). Several of her works survive in the conventions; a nation may belong to both National Museum of American Art, without conflict. The Universal Copyright Washington, D.C. Convention, signed by the United States and n14 UNESCO, THE ABC OF COPYRIGHT more than fifty other countries, provides for 12 (1981). reciprocity of rights extended to nationals, and also provides some substantive protections, n15 B. KAPLAN, AN UNHURRIED VIEW including protection for "not less than the life OF COPYRIGHT 2-9 (1967). of the author and twenty-five years." Universal n16 Denmark and Norway are the only Copyright Convention, July 24, 1971, art. IV, § countries that have granted perpetual rights in 2(a), 25 U.S.T. 1341, 1347, T.I.A.S. No. 7868, intellectual property. The ordinance which 1347, 943 U.N.T.S. 178, 196. The Berne created these rights was somewhat less Convention, which the United States ratified in perpetual. It was adopted in 1741 and 1988, has over seventy signatories and repealed in 1814. UNESCO, supra note 14, at provides more definite substantive 15. requirements, such as protection "for the life of n17 Copyright provisions are codified at 17 the author and fifty years." The Berne U.S.C. § § 101-914 (1982 & Supp. IV 1986). The Convention for the Protection of Literary and Patent Act is codified at 35 U.S.C. § § 1-376 Artistic Works, July 14, 1967, art. 7, § 1, 828 (1982 & Supp. IV 1986). Federal trademark law U.N.T.S. 221, 235 revised July 24, 1971, reported is codified at 15 U.S.C. § § 1051-1127 (1982 & in WORLD INTELLECTUAL PROPERTY Supp. IV 1986). Trade secret protection is left ORGANIZATION, COPYRIGHT: A to the states. See Kewanee Oil Co. v. Bicron MONTHLY REVIEW OF THE WORLD Corp., 416 U.S. 470, 493 (1974) ("Congress, by INTELLECTUAL PROPERTY its silence over these many years, has seen the ORGANIZATION 1971, at 135, 137 [hereinafter wisdom of allowing the states to enforce trade Berne Convention]; see The Berne Convention secret protection."). Implementation Act of 1988, Pub. L. No. 100- 568, 100th Cong., 2d Sess. (Oct. 31, 1988). n18 Semiconductor Chip Protection Act of 1984, 17 U.S.C. § § 901-912 (Supp. IV 1986). There are also two major patent treaties, both of which the United States has signed. n19 17 U.S.C. § 103. The Paris Convention for the Protection of n20 248 U.S. 215, 236-42 (1918) (one who Industrial Property, July 14, 1967, 21 U.S.T. expends time and resources for purposes of 1583, T.I.A.S. No. 6923, 828 U.N.T.S. 305 lucrative publication has a quasi-property (entered into force April 26, 1970); and The interest in the results of the enterprise as a Patent Cooperation Treaty, opened for signature against a rival in the same business; June 19, 1970, 28 U.S.T. 7645, T.I.A.S. No. 8733 appropriation of those results to the damage of (entered into force Jan. 24, 1978). one and the profit of another constitutes unfair competition). Page 54 77 Geo. L.J. 287, *

n23 See generally S. Levitsky, COPYRIGHT, Rules, BUS. KOREA, Feb. 1984, at 70 (although DEFAMATION, AND PRIVACY IN SOVIET Korea signed Paris agreement governing CIVIL LAW xi-xiii (1979) (citing Soviet Union's international patents and copyrights, acceptance in 1973 of the Universal Copyright government has indicated it will not be able to Convention); Kase, Copyright in Czechoslovakia - enforce strict compliance until per capita - The New Copyright Statute of 1965, 14 BULL. income reaches $ 5,000). Latin America COPYRIGHT SOC. U.S. 28(1966) (reviewing countries have joined to expressly isolate history of copyright in Czechoslovakia); foreign trademarks, patents, and royalties and Pavelic, The Protection of Private Rights in a subject them to a common treatment. See Socialist State: Recent Developments in Yugoslav UNITED NATIONAL COMMISSION ON Copyright Law, 14 HARV. INT'L. L.J. 111, 117- TRADE AND DEVELOPMENT, POLICIES 26 (1973) (Yugoslavian copyright law expands RELATING TO TECHNOLOGY OF THE protection of authors' rights). Although China COUNTRIES OF THE ANDEAN PACT (1971). is not a signatory of any international In the 1988 Montreal GATT Conference, Brazil intellectual property conventions, in April and India opposed more international 1985, it promulgated its own patent law intellectual property protection in the fear that drafted with the aid of American jurists. See it would slow down the flow of advanced SECTION OF PATENT, TRADEMARK, AND technology to combat social problems in the COPYRIGHT LAW, AMERICAN BAR Third World. Farnsworth, Brazil and India Fight ASSOCIATION, 1987 COMMITTEE REPORTS New Copyright Rules, N.Y. Times, Dec. 7, 1988, 347 (1987). at 48, col. 1. BrazBrazil has consistently denied protection to new drugs so as to Brazil has n24 See Enforcement News, IP ASIA, Apr. 22, consistently denied protection to new drugs so 1988, at 30-31 (noting Taiwan's persistent as to increase their availability to the poor. See enforcement problems); Taiwan: Licensing Whose idea is it anyway?, THE ECONOMIST, Foreign Trademarks, IP ASIA, Apr. 22, 1988, at 2 Nov. 12, 1988, at 73. (Taiwan's pronounced government policy is to deny protection). n26 See Hughes, Between Art and Law, Harvard Crimson, Jan. 21, 1985, at 3, col. 1. n25 For example, patents are granted for the same range of devices and processes, with n27 Id. Endgame's stage direction called for the exception of chemical substances, in South a bare, grey stage. The Cambridge production Korea as in the United States. Some believe set the play in a gutted, abandoned Boston this exception reflects a fear that patents in this subway station. In 1988, Beckett successfully area would facilitate foreign monopolization of opposed efforts by the Comedie-Francaise in Korea's fledgling fertilizer, pharmaceutical, Paris to do a production of Endgame on a set and petrochemical industries. Min & West, bathed in pink light. See Int'l Herald Tribune, The Korean Regime for Licensing and Protecting Oct. 14, 1988, at 18, col. 8. Intellectual Property, 19 INT'L LAW. 545, 557 n28 1 P.D. ROSENBERG, PATENT LAW (1985). Similarly, the South Korean FUNDAMENTALS § 1.03 (2d ed. 1985). government has tied trademark protection to the achievement of a prescribed level of n29 17 U.S.C. § 107 (1982). average per capita income in the country. See n30 Gayler v. Wilder, 51 U.S. (10 How.) 477, Krause, Am Cham Seeks Bold Shifts in Investment 497 (1850). This exception, of course, is not Page 55 77 Geo. L.J. 287, * useful to research laboratories that are by compact can have no other goal than to pursuing developments which may have preserve possessory rights of citizens without commercial applications. Accordingly, a doing prejudice to property rights of others in problem has emerged in biomedical same natural property); see generally Rowen, A laboratories because the patenting of certain Second Thought on Locke's First Treatise, 17 J. cell lines prevents other research labs from HIST. IDEAS 130 (1956). using these types of cells in their research. n35 J. LOCKE, supra note 32, § 33. Weiner, Universities, Professors, and Patents: A Continuing Controversy, TECH. REV., Feb./Mar. n36 Id. § 27. See generally Mautner, Locke on 1986, at 32, 42-43. Original Acquisition, 19 AM. PHIL. QUARTERLY 259, 260 (1982) (claiming n31 U.S. CONST. art. I, § 8, cl. 8. "enough and as good" condition not actually a n32 See J. LOCKE, Second Treatise of premise in Locke's argument). Although some Government, § § 138-40, in TWO TREATISES scholars agree with Mautner, most seem to OF GOVERNMENT (P. Laslett rev. ed. 1963) treat the proposition as a central premise of (3d ed. 1698). Locke's argument. See, e.g., C.B. MACPHERSON, THE POLITICAL THEORY n33 Id. § 25. OF POSSESSIVE INDIVIDUALISM: HOBBES n34 This suggests to me a God who is TO LOCKE 201 (1962); G. PARRY, JOHN slightly myopic, less than benevolent, or LOCKE (1978). Perhaps even Mautner himself enjoying a practical joke. For Locke, implicity retreats from saying the "enough and this was because of Man's fall. Id. With respect as good" condition is not a premise by to Locke's position that the common is a gift admitting that Locke makes an "assumption of from God, Robert Paul Wolff has suggested original abundance." Mautner, supra, at 260. that "[i]f we secularize this theory, it is not n37 J. LOCKE, supra note 32, § 37. difficult to see that it is really based on the supposition that property is originally social or n38 Id. § § 36, 37 & 41. An interesting collective. . . . The opposite view, that property problem raised by these examples is the is originally individual, is completely contrary geographical consideration in determining to Locke's orientation. . . ." Wolff, Robert what counts as "enough and as good." For Nozick's Derivation of the Minimal State, in example, the Treaty of Paris left the new READING NOZICK 101-02 n.9 (J. Paul ed. United States with the unsettled Northwest 1981). I disagree that secularizing Locke's Territory (which became Ohio, Indiana, theory means property is originally social. In Illinois, Michigan, and Wisconsin). Does this fact, I see no reason why Wolff would think mean the enough and as good condition would that this is the case and I think that a social be satisfied for those within the Territory? conception of property would have Would it be satisfied for everyone within the undermined Locke's position. See Hamilton, United States assuming unrestricted Property -- According to Locke, 41 YALE L.J. 864, immigration? Would it be satisfied for all 867-68 (1932) (Locke's theory of property based within the English-speaking world? on popular perception in seventeenth century n39 Letter from Richard Epstein to the that all property derives from "magnanimity of author (Aug. 28, 1985) (copy on file at a bountiful creator"; government established Georgetown Law Journal). Page 56 77 Geo. L.J. 287, *

n40 Epstein, Possession as the Root of Title, 13 n49 Such an alloy exists if people were to GA. L.J. 1221, 1227 (1979). give their tacit consent to the distribution of property because (1) they believed that the n41 J. LOCKE, supra note 32, § 27, cited in present distribution arose from an original Epstein, supra note 40, at 1227. distribution based on the labor justification n42 Epstein, supra note 40, at 1227. and (2) they believed that the labor justification n43 By definition, "possession" involves a was indeed valid. relationship which includes domination. The n50 See Wheaton v. Peters, 33 U.S. (8 Pet.) possessor controls his possession. He is dominant 590, 637 (1834) ("a literary man is as much over it. The mind-body connection, however, entitled to the product of his labour as any is not based upon unilateral domination. other member of society"). In The Trademark While it is said that the mind "controls" the Cases, 100 U.S. 82 (1879), the Supreme Court body, we now know that the symbiosis used a labor model to hold that trademarks between the two renders such a statement were unprotected. "The writings which are to inaccurate. We cannot say that the mind be protected are the fruits of intellectual labor." controls the body any more than that the body Id. at 94. The Court held that the trademark is controls the mind. There is an integration of unprotected because it does not require "any the two -- or perhaps the concept of two work of the brain . . . no fancy or imagination, separate entities is itself misleading -- but there no genius, no laborious thought." Id.; see also is no possessory relationship. Goldstein v. California, 412 U.S. 546, 561 (1973) n44 J. LOCKE, supra note 32, § 37. ("writings . . . may be interpreted to include any physical rendering of the fruits of creative n45 Id. intellectual or aesthetic labor"). n46 Id. n51 Baird, Common Law Intellectual Property n47 Id. § 50. and the Legacy of International News Service v. Associated Press, 50 U. CHI. L. REV. 411, 413 n48 Thomas Scanlon seems to consider this (1983). consent critical because "the original moral foundation for property rights is no longer n52 Id. at 415. valid" once we have a money economy. n53 J. LOCKE, supra note 32, § 27. Scanlon, Nozick on Rights, Liberty, and Property, in READING NOZICK, supra note 34, at 107, n54 Id. 126. But Nozick appears to disagree. See R. n55 Becker, The Labor Theory of Property NOZICK, ANARCHY, STATE AND UTOPIA Acquisition, 73 J. PHIL. 653, 655 (1976). 18 (1974) (social contract not necessary for free n56 J. LOCKE, supra note 32, § 34. exchange of goods); see also Rapaczynski, Locke's Conception of Property and the Principle of n57 Minogue, The Concept of Property and its Sufficient Reason, 42 HIST. IDEAS 305, 306 Contemporary Significance, in PROPERTY, (1981) ("Locke attempts to provide a NOMOS XXII, supra note 4, at 3, 10. justification of property which would make n58 David Ellerman argues that the "labor ownership independent of any explicit or theory of property has throughout its history implicit social consent."). been entwined with and often confused with Page 57 77 Geo. L.J. 287, * the labor theory of value. . . . The admixture of n65 Jurists have also recognized the the two labor theories [was] present even in enjoyable, personal value of creating Locke." Ellerman, Property and the Theory of intellectual works. Justice Holmes spoke of Value, 16 PHIL. F. 293, 294 (1985). Ellerman "the secret isolated joy of the thinker, who writes of the confusion of normative knows that, a hundred years after he is dead propositions, but the same confusion can occur and forgotten, men who have never heard of with the consequentialist arguments. For him will be moving to the measure of his example, should we use property to give thought." Address by Justice Oliver Wendell people incentives, or should we use some other Holmes, Harvard University (Feb. 17, 1886), measure of value? reprinted in THE MIND AND FAITH OF JUSTICE HOLMES 33 (M. Lerner ed. 1943). n59 347 U.S. 201 (1954). n66 P.D. ROSENBERG, supra note 28, § n60 Id. at 219 (emphasis added). 1.07. n61 U.S. CONST. art. I, § 8, cl. 8; see also n67 Becker, The Moral Basis of Property Grant V. Raymond, 31 U.S. (6 Pet.) 218, 241-42 Rights, IN PROPERTY, NOMOS XXII, supra (1832) (Marshall, C.J.) (copyright and patent note 4, at 187, 193. clause indicates that purpose of patent statute is to stimulate invention). n68 347 U.S. 201 (1954). n62 A. LINCOLN, Second Lecture on n69 Id. at 219. Discoveries and Inventions, in 3 THE N70 U.S. CONST. art. I, § 8, cl. 8. COLLECTED WORKS OF ABRAHAM LINCOLN 356, 363 (R.P. Basler ed. 1953). n71 248 U.S. 215 (1918). n63 See Zacchini v. Scripps-Howard n72 Id. at 234-35. "We need spend no time . Broadcasting Co., 433 U.S. 562, 576 (1976) ("The . . upon the general question of property in protection [of publicity] provides an economic news . . . since it seems to us the case must turn incentive . . . to make the investment required upon the question of unfair competition in to produce a performance. . . . This same business." Id. consideration underlies the patent and n73 See generally 1 D.S. CHISUM, copyright laws long enforced by this Court."); PATENTS § § 4.01-4.04 (1988). Goldstein v. California, 412 U.S. 546, 555 (1973) n74 15 F. Cas. 1018 (C.C.D. Mass. 1819) (No. ("to encourage people to devote themselves to 8,568). intellectual and artistic creation, Congress may guarantee to authors and inventors a reward"); n75 Id. at 1014. cf. United States v. Paramount Pictures, 334 U.S. n76 P. GOLDSTEIN, COPYRIGHT, 131, 158 (1948) ("It is said that reward to the PATENT, TRADEMARK AND RELATED author or artist serves to induce release to the STATE DOCTRINES 492 (1981). public of the products of his creative genius."). n77 See Brenner v. Manson, 383 U.S. 519, n64 Easterbrook, Foreword: The Court and 533-36 (1965) (requiring showing of positive the Economic System in The Supreme Court 1983 social benefit to satisfy utility requirement). Term, 98 HARV. L. REV. 4, 21-29 (1984). Page 58 77 Geo. L.J. 287, *

n78 E.g., Connell v. Sears, Roebuck & Co., 559 n87 Copyright Act, 17 U.S.C. § 408(a) F. Supp. 229, 245 (N.D. Ala. 1983), aff'd, (1982) (allowing copyright registration "[a]t modified, vacated in part, 722 F.2d 1542 (Fed. Cir. any time during the subsistence of copyright in 1983). any published or unpublished work"); cf. National Conference of Bar Examiners v. n79 E.g., Brown-Bridge Mills, Inc. v. Eastern Multistate Legal Studies, 692 F.2d 478, 480 (7th Fine Paper, Inc. 700 F.2d 759, 763 (1st Cir. 1983). Cir. 1982) (upholding constitutionality of n80 See 35 U.S.C. § 103 (1982) (patent copyright protection for standardized tests that granted if advancement not "obvious at the are never published in normal sense and only time of the invention . . . to a person having disseminated in a control environment), cert. ordinary skill in the art"). This standard, now denied, 464 U.S. 814 (1983). statutorily embodied, originated in Hotchkiss v. n88 106 F.2d 45 (2d Cir. 1939), aff'd, 309 U.S. Greenwood, 52 U.S. (11 How.) 248, 265-67 (1850), 390 (1940). in which the substitution of porcelain doorknobs for wooden knobs was considered n89 Id. at 50 (stars were Joan Crawford and too obvious for a patent. Robert Montgomery). n81 Bennett v. Halahan, 285 F.2d 807, 811 n90 Id. at 48; see also Haas v. Leo Feist, Inc., (C.C.P.A. 1961); Oetiker v. Jurid Werke GmbH., 234 F. 105 (S.D.N.Y. 1916) (Hand, J.) (awarding 209 U.S.P.Q. (BNA) 809, 824 (D.D.C. 1981). 100% of the profits to the defendant for a song which copied only the refrain melody from the n82 See Graham v. Horn Deere, 383 U.S. 1, 25 plaintiff and was a success clearly because of (1965). its patriotic lyrics). n83 P. D. ROSENBERG, supra note 28, § n91 Compare Gorman, Copyright Protection 8.03, at 8-8. for the Collection and Representation of Facts, 76 n84 Such an invention might indirectly HARV. L. REV. 1569, 1575-76 (1963) (urging produce value for society by improving a courts to narrow standard of copyright technology that, after further research and infringement) with B. KAPLAN, supra note 15, improvement, eventually surpasses existing at 63 (arguing for more stringent standards for technologies. issuance of copyrights). n85 For chemical compounds, there is a n92 B. KAPLAN, supra note 15, at 71 strict utility requirement: "Mere usefulness in (apportionment schemes "seduce" judges into further chemical research will not suffice to granting partial relief to plaintiffs in "dubious" satisfy the utility requirement. . . . [It] must cases). produce a useful product." P. D. ROSENBERG, n93 For a biography, see L. EGAN, supra note 28, § 8.06, at 8-12. THOMAS EDISON (1987). n86 Id. § 2.02, at 2-4.3 to 2-4.4. Such n94 W. FAULKNER, SARTORIS (1929). exclusion seems to deprive society of potential value. Furthermore, the lack of use of a patent n95 W. FAULKNER, ABSALOM, may create antitrust problems. See Continental ABSALOM! (1936). Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. n96 In a 1986 book, Umberto Eco describes 405, 424-25 (1908). the medieval view that an artist conceives his Page 59 77 Geo. L.J. 287, * art before executing it. Eco criticizes that view v. Salkeid, 511 F.2d 904, 906 (3d Cir.), cert. precisely on this issue: "[T]here [was] no denied, 423 U.S. 863 (1975); Anselh v. Puritan of awareness that art, nourished by intellectual Pharmaceutical Co., 61 F.2d 131, 137-38 (8th insight and skilled craftsmanship, involves an Cir.), cert. denied, 287 U.S. 666 (1932). arduous process in which physical n105 Sid and Marty Krofft Television v. manipulations do not follow the conception of McDonald's Corp., 562 F.2d 1157, 1168 (9th Cir. the intellect, but are the intellect conceiving 1977) (dicta) (Michaelangelo's David deserves something by making it." U. ECO, ART AND protection as expression while idea of statue of BEAUTY IN THE MIDDLE AGES 111 (1986) nude male does not). (emphasis in original). n106 Scenes a faire are elements (e.g., scene, n97 Remark of Hadi Abu Shakra, LL.M. character, plot component) of a genre of candidate, Harvard Law School (May 1985). literature so common that they are customary. n98 W. V. O. Quine recently put it another For example, in space-voyage science fiction, a way: "If the fantasy of the UNIVERSAL battle scene and a non-human character would LIBRARY were realized, literary creativity probably qualify as scenes a faire. would likewise reduce to discovery: the n107 Reyher, 533 F.2d at 91 (scenes a faire not author's book would await him on the shelf." entitled to copyright protection); Alexander v. W. V. QUINE, QUIDDITIES 39 (1987). Haley, 460 F.Supp. 40, 45 (S.D.N.Y. 1978) n99 Copyright Act, 17 U.S.C. § 102(a) (plaintiff may not include scenes a faire as (1976) (limiting copyright protection to works elements of copyright infringement). "fixed in any tangible medium of expression"). n108 Krofft Television, 562 F.2d at 1167; see By contrast, West German law might protect Roth Greeting Cards v. United Cards Co., 429 F.2d even the fleeting form of spoken words. 6 IIC 1106, 1110 (9th Cir. 1970) (copyright violation STUDIES, GERMAN INDUSTRIAL when "total concept and feel" of defendant's PROPERTIES, COPYRIGHT, AND greeting cards same as those of plaintiff; ANTITRUST LAWS 111, 132-33 (Beier, similarities include characters and mood Schricker, & Fikentscher eds. 1983). portrayed, combination of artwork and n100 293 F. Supp. 130 (S.D.N.Y. 1968). message, and arrangement of words on cards). n101 Id. at 144. n109 See Lee v. Runge, 404 U.S. 887, 890-93 (1971) (Douglas, J., dissenting from denial of n102 17 U.S.C. § 102 (1976) (granting certiorari) (first amendment questions raised if copyright protection to "original works of Congress' power over copyrights construed to authorship fixed in any tangible medium" but allow grant of monopolies over ideas rather not to "any idea . . . embodied in such works"). than merely over means of expressing ideas). n103 E.g., Twentieth Century-Fox Film Corp. n110 Krofft Television, 562 F.2d at 1170; see v. MCA, Inc., 715 F.2d 1327, 1329 n.3 (9th Cir. also Triangle Publications, Inc. v. Knight-Ridder 1983). Newspapers, Inc., 626 F.2d 1171, 1178 (5th Cir. n104 E.g. Reyher v. Children's Television 1980) (Brown, J., concurring) ("The idea- Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied, expression dichotomy generally provides a 429 U.S. 980 (1976); Universal Athletic Sales Co. Page 60 77 Geo. L.J. 287, * workable balance between copyright and free n116 In fact, this addition to the common speech interests."). pool of ideas has been recognized as part of the "bargain" of patent law: "such additions to the n111 Nimmer, Does Copyright Abridge the general store of knowledge are of such First Amendment Guarantees of Free Speech and importance to the public weal that the Federal Press?, 17 U.C.L.A. L. REV. 1180 (1970). Government is willing to pay the high price of n112 Id. at 1197-1200 (photographs of My 17 years of exclusive use for its disclosure, Lai massacre and film of John F. Kennedy's which disclosure, it is assumed, will stimulate assassination could not be censored from ideas and the eventual development of further public by copyright owners). An audacious significant advances." Kewanee Oil Co. v. Bicron example of copyright over the expression of a Corp., 416 U.S. 470, 481 (1974). To some, public event is the television evangelist Jimmy society has the better bargain: "[t]he purpose of Swaggart's claimed copyright over his public disclosure to the public is to catalyze other confession of with a prostitute. inventors into activity. . . . The inventor makes Swaggart claimed copyright in an effort to stop a truly Faustian bargain with the sovereign, the Cincinnati Opera from using part of the exchanging secrecy of indefinite and of confession in an advertisement for the opera possibly perpetual duration, for ephemeral "Susannah." Int'l Herald Trib., June 18-19, 1988, patent rights." P. D. ROSENBERG, supra note at 14, col. 7. What other reason would 28, § 1.02, at 1-5. Swaggart have to claim copyright than to chill n117 Another point is that idea X may the confession's use by others? breathe new life into the common by making n113 The two dichotomies may not be set of ideas Y worth developing. For example, completely parallel. Under present law when L'Enfant's plans for Washington, D.C., made it "idea" and "expression" merge, the creation is viable for generations of architects to develop unprotected on the rationale that one could not ideas to use the city's oddly shaped express the idea any other way. See 1 M. intersections. NIMMER & D. NIMMER, NIMMER ON n118 See R. NOZICK, supra note 48, at 174- COPYRIGHT § 1.10[c], 1-82 to 1-84 (1963) 82 (social considerations favor establishment of [hereinafter NIMMER] (using the example of private property and a free market system the Vietnam War's My Lai massacre to would not violate Locke's proviso that "enough demonstrate that in some instances the form of and as good" remain in the common). expression, e.g., photography, is essential to convey the idea). n119 J. LOCKE, supra note 32, § 32. n114 See Krofft Television, 562 F.2d at 1169 n120 This is true even where the inventor ("the intrinsic test for expression is uniquely of the "child" holds a license to the "parent" suited for determination by the trier of fact"). idea. Hence the pressure for "grant-backs" of offspring patents to the owner of the original n115 See Prager, The Early Growth and patent. See 2 P. D. ROSENBERG, supra note 28, Influence of Intellectual Property, 34 J. PAT. OFF. § 16.02[2] (discussing various methods for SOC'Y 106, 108-09 (1952) (authors, unlike exchanges of patent rights). creators of tangible things, lose right to exclusive use of words and ideas after n121 In a celebrated example, Sir Ambrose publication and public possession). Fleming patented a vacuum tube with two Page 61 77 Geo. L.J. 287, * electrodes and Dr. Lee DeForest patented a n124 See R. NOZICK, supra note 48, at 175- vacuum tube with three electrodes. Marconi 82. Wireless -- the holder of Fleming's patent -- n125 See id. at 180. confessed judgment as to one of DeForest's patents while DeForest Radio was held to have n126 Professor Michelman has suggested a infringed one of Fleming's patents. Marconi triumvirate of property statuses: the common, Wireless Telegraph Co. v. DeForest Radio private property and the "anticommon" -- "a Telephone & Telegraph Co. 236 F. 942, 943 pure 'social property' regime in which everyone (S.D.N.Y. 1916) (confessed judgment by has exclusive rights over every resource; or, in Marconi), aff'd, 243 F. 560 (2d Cir. 1917); id. at other words, no one is privileged to make any 955 (infringement found against DeForest's use of any resource without the unanimous company). According to Rosenberg, "[i]n most consent of everyone else." Address by instances wherein there are such overlapping Professor Frank Michelman, 1985 American claims owned by different parties, each Association of Law Schools Meeting (Jan. 1985) licenses the other." P. D. ROSENBERG, supra (copy on file at Georgetown Law Journal). None note 28, § 1.03, at 1-13. of Michelman's categories captures the idea common in which anyone can enjoy free access n122 Parody is considered a "fair use" of to all ideas without need for anyone else's the copyrighted work and a parody's "fair use" consent. of an original is usually more extensive than the "fair use" of an ostensibly rather unrelated n127 O'Reilly v. Morse, 56 U.S. (15 How.) 62, work. At a minimum, a parody can "conjure 113 (1854). up" an original for the sake of humor. See, e.g., n128 Levmore, Explaining Restitution, 71 Elsmere Music, Inc. v. National Broadcasting Co., VA. L. REV. 65, 96 (1985). Levmore attributes 623 F.2d 252, 253 n.1 (2d Cir. 1980) (per curiam) this reluctance to the twin reasons "that such (Saturday Night Live transformation of song I [lawyer's] arguments might be independently Love New York into I Love Sodom was fair use). discovered later and that contribution of any A parody threatening to displace the original one precedent to legal victory might be within the market may infringe. See Warner uncertain." Id. at 96 n.72. Bros., Inc. v. American Broadcasting Co., 654 F.2d n129 253 F.2d 702 (2d Cir.), cert. denied, 358 204, 208 (2d Cir. 1981) (to determine whether U.S. 816 (1958). similarity between original work and parody constitutes "substantial and hence infringing n130 Id. at 704. similarity," court must decide whether n131 B. KAPLAN, supra note 15, at 65. similarities are "something more than mere generalized ideas or themes"). n132 Another example of the "necessary fixture" exception to ideas that can be n123 At the same time, the purported privatized is the scenes a faire rule in copyright parody -- no longer recognized as such -- is not law. See supra note 106 (discussing scenes a "complimenting" the original as a parody faire); see also Alexander v. Haley, 460 F. Supp. 40, normally does by indicating that the original 45-46 (S.D.N.Y. 1978) (concept of scenes a faire has reached a certain level of fame. in literature on slavery protected author of Roots from claims of copyright infringement); 3 Page 62 77 Geo. L.J. 287, *

NIMMER, supra note 113, § 13.03[A][1] 601 (1936); see also King-Seeley Thermos Co. v. (Release No. 22 1988) (discussing nonliteral Aladdin Indus., 321 F.2d 577 (2d Cir. 1963) (no similarity between works). exclusive right to use word "thermos"). n133 This conclusion seems to follow the n140 See XEROX CORP., TRADEMARK from the "algorithm" cases. Compare Gottschalk POLICY, reprinted in Current Developments in v. Benson, 409 U.S. 63, 71-72 (1972) Trademark Law and Unfair Competition, (mathematical method of converting binary- PRACTICING LAW INSTITUTE (1982). coded decimals into pure binary numbers does n141 R. CALLMAN, THE LAW OF not qualify for protection) with In re Jones, 373 UNFAIR COMPETITION AND TRADEMARK F.2d. 1007, 1014 (C.C.P.A. 1967) (disk for 1149-50 (2d ed. 1950). mechanical conversion of analog to digital measurements and method for using disk may n142 17 U.S.C. § 302(a) (1982). be patentable). n143 35 U.S.C. § 154 (1982). n134 Twentieth Century-Fox Film Corp. v. n144 Int'l News Serv. v. Associated Press, 248 MCA, Inc., 715 F.2d 1327, 1329 (9th Cir. 1983) U.S. 215, 218 (1918). (vacating trial court's grant of pretrial n145 These two images of idea-making as summary judgment for MCA, creator of individual achievement and inexorable "Battlestar Galactica"). progress have been in tension in patent cases n135 Parker v. Flook, 437 U.S. 584 (1978). when the patent's validity is in question n136 Id. at 591 ("The process itself, not because of similarity to, or simple extension of, merely the mathematical algorithm, must be prior art. While stressing the creativity of a new and useful."). patented invention held by Marconi, Justice Frankfurter aptly characterized the foundation n137 See Nichols v. Universal Pictures Corp., of the argument against patents: 45 F.2d 119, 121 (2d Cir. 1930) (literary themes may at some point become so generalized that Great inventions have always been parts of they no longer are protected), cert. denied, 282 an evolution, the culmination at a particular U.S. 902 (1931). moment of an antecedent process. So true is this that the history of thought records striking n138 Sayre v. Moore, 102 Eng. Rep. 139, 140 coincidental discoveries -- showing that the (K.B. 1785), reported in Cary v. Longman, 102 new insight first declared to the world by a Eng. Rep. 138, 139 n.(b) (K.B. 1801). particular individual was 'in the air' and ripe n139 This is sometimes called the "Aspirin for discovery and disclosure. and Cellophane doctrine." See Bayer Co. v. Marconi Wireless Co. v. U.S., 320 U.S. 1, 62 United Drug Co., 272 F. 505, 514-15 (S.D.N.Y. (1942) (Frankfurter, J., dissenting). 1921) (L. Hand, J.) (expiration of Bayer's patent terminated exclusive right to word "aspirin" as n146 R. NOZICK, supra note 48, at 181. trademark in direct sales to consumers); n147 Id. DuPont Cellophane Co. v. Waxed Products Co., 85 n148 See Marconi Wireless, 320 U.S. at 62 F.2d 75, 80 (2d Cir.) (expiration of patent (Frankfurter, J., dissenting). That patent law terminated manufacturer's exclusive right to use word "cellophane"), cert. denied, 299 U.S. Page 63 77 Geo. L.J. 287, * does not reflect such variations may be due to manipulable tools] and the use of fire is not an administrative difficulties. isolated phenomenon [in the evolution of man]. On the contrary, we must always n149 Steiner, Slavery, Socialism, and Private remember that the real content of evolution Property, in PROPERTY, NOMOS XXII, supra (biological as well as cultural) is the note 4, at 244, 251. elaboration of new behaviour."). n150 R. NOZICK, supra note 48, at 175. n159 To attack the notion that there is no n151 Id. intellectual property in the pre-money n152 See P. SAMUELSON & W. economy, one might argue that we should NORDHAUS, ECONOMICS 483 (12th ed. make a distinction between a barter economy 1985) (Pareto efficiency is achieved when one and a money economy. Locke does not draw person's utility can be increased only by any significant distinction between the two, lowering the utility of another). but one could infer from Locke's discussion that the barter economy is a situation in which n153 J. RAWLS, A THEORY OF JUSTICE people are trying to acquire more of the 204-93 (1971). "useful" goods they need without doing n154 J. LOCKE, supra note 32, § § 46-51. violence to the non-waste condition and without accumulating non-useful goods like n155 R. NOZICK, supra note 48, at 176. gold. "First-order" bartering displays this kind n156 J. LOCKE, supra note 32, § § 46-51. of exchange: short-lived fruits bartered for n157 A third, less likely possibility is that more durable nuts. Such barters are useful the idea I give my friend allows her to labor things in Locke's scheme; the person receiving less to survive and to loiter more. However, nuts avoids the non-waste condition and the this does not seem to accord with Locke's view person receiving the fruits adds variety to his of human motives, for he assumed that people diet. Given Locke's announced antipathy will inevitably strive to accumulate material toward non-useful items that people value objects. J. LOCKE, supra note 32, § 46. As (gold, silver, baubles), as soon as these items Walter Hamilton humorously observed, enter the barter system, one has a money "[Locke's] natural state is a curious affair, economy: an exchange system based on an peopled with the Indians of North America unnatural, or at least less fundamental, second- and run by the scientific principles of his friend order of valuation. Sir ." Hamilton, supra note 34, at n160 R. NOZICK, supra note 48, at 175-76. 871. n161 D. JOHNSTON, COPYRIGHT n158 This idea, of course, is elementary to HANDBOOK 32-33 (2d ed. 1982). the sciences of biology and anthropology. n162 Id.; 17 U.S.C. § § 101-104, 301(a) Biological and cultural evolution both (1976) (§ 104 explicitly recognizes that § § 101- contribute to the understanding of new 103 cover unpublished works). concepts and to a species' ability to translate these ideas into technology -- tool use. For a n163 See, e.g., Roy Export Co. v. Columbia general statement of this idea, see J. Broadcasting System, Inc., 672 F.2d 1095, 1100-01 BRONOWSKI, THE ASCENT OF MAN 41 (2d Cir. 1982) (state law protects the owner's (1973) ("The development of [finely work from creation through publication); Burke Page 64 77 Geo. L.J. 287, * v. National Broadcasting Co., 598 F.2d 688, 691-92 creator in work produced, rather than mere (1st Cir. 1979) (common law protects owner's pecuniary interests recognized under U.S. work until publication). law); Katz, The Doctrine of Moral Rights and American Copyright Law -- A Proposal, 24 S. CAL. n164 The trademark "token use" doctrine L. REV. 375, 391-409 (1951) (proposing that the will be abolished after November 16, 1989, the U.S. incorporate the European concept of effective date of the Trademark Law Revision moral rights into copyright law); Roeder, The Act of 1988. Pub. L. No. 100-667, 100th Cong., Doctrine of Moral Rights: A Study in the Law of 2d Sess. (Nov. 16, 1988). The "token use" Artists, Authors and Creators, 53 HARV. L. REV. doctrine sanctioned waste of a trademark by 554, 558-65 (1940) (arguing that the U.S. should permitting someone to protect a mark without adopt European moral rights in copyrighted really using it. After November 1989, a real work, which includes right to publish, or not, use or intent to use will be required. in form desired and right to prevent n165 It has been argued that this condition deformation). never occurred with physical goods, or that it n171 Acton, 3 THE ENCYCLOPEDIA OF has not occurred during the known history of PHILOSOPHY Hegel, Georg Wilhelm Friedrich mankind. See C. B. MACPHERSON, supra note 442 (1967 ed.). 36. Others argue that even if this condition applied to physical goods at one point in time, n172 G. HEGEL, supra note 4, P41. it cannot be used in a justification for property n173 Id. enduring past its original allocation. See Steiner, supra note 149, at 251-52 (eventually all n174 Id. P39. land will be owned and nonlandowners will be n175 Berki, Political Freedom and Hegelian trespassers unless they obtain permission for , 16 POL. STUD. 365, 376 (1968). use from owners (citing H. SPENCER, SOCIAL n176 The Philosophy of right is divided into STATICS 114-15 (1851))); Mautner, supra note three parts. Part I, "Abstract Right" is 36, at 267-68 (justification fails because claim concerned with the individual agent as a that property was legitimately acquired can person in relationships with other persons and rarely be supported). things. Parts II and III are concerned with the n166 Rapaczynski, supra note 48, at 307. higher development of the agent as an n167 Radin, Property and Personhood, 34 autonomous moral subject and as a member of STAN. L. REV. 957, 957 (1982). the rational community ultimately manifested in the State. G. HEGEL, supra note 4. n168 Id. n177 A. CAMUS, CALIGULA (1945). n169 This theory was most thoroughly developed in G. HEGEL, PHILOSOPHY OF n178 For example, he attacks parents who RIGHT, supra note 4. treat their children as "things." G. HEGEL, supra note 4, P43. n170 See Kwall, Copyright and the Moral Right: Is an American Marriage Possible?, 38 n179 The first principle of Rawls' VAND. L. REV. 1, 5-16 (1985) (urging U.S. to architectonic system addresses this concern: adopt aspects of European copyright law "Each person is to have an equal right to the which recognize moral and personal rights of most extensive total system of equal basic Page 65 77 Geo. L.J. 287, * liberties compatible with a similar system of n193 Id. P65. liberty for all." J. RAWLS, supra note 153, at n194 Id. P56. 250; id. at 302. n195 Id. P55. n180 G. HEGEL, supra note 4, PP47-48. n196 Id. P59. n181 J. LOCKE, supra note 32, § 27. n197 Id. PP54-58. n182 Knowles, Hegel on Property and Personality, PHIL. Q., Jan 1983, at 45, 48. n198 Id. P60. Note that this "marking" accords with Hegel's apparent recognition that n183 Acton, supra note 171, at 446. secure property or capital allows continued n184 G. HEGEL, supra note 4, P24. personal development. n185 See, e.g., H. MARCUSE, REASON n199 Radin, supra note 167, at 987. AND REVOLUTION 192-95 (1960) (property is n200 G. HEGEL, EARLY THEOLOGICAL the first embodiment of freedom and WRITINGS (T.M. Knox trans. 1977). individuality is manifested in property); Ilting, The Structure of Hegel's 'Philosophy of right', in n201 Id. at 308. HEGEL'S POLITICAL PHILOSOPHY n202 Note that this is also different from (Pelczynski ed. 1971). Marx's classic statement of alienation in which n186 Knowles, supra note 182, at 52-53. the laborer expends labor on the object he produces but neither identifies with it nor owns n187 John Plamenatz has made this point it. See K. MARX, ECONOMIC AND nicely: PHILOSOPHIC MANUSCRIPTS OF 1844, at To make a claim is not to give vent to an 110-11 (B. Struik ed. 1964). appetite; it is not to be demanding in a way n203 Radin, supra note 199, at 989-91. that even an animal can be. It is to make a moral gesture that has meaning only between n204 G. HEGEL, supra note 4, P49. persons who recognize one another as persons. n205 Id. P43. . . . The creature that aspires to freedom is a n206 Id. social being and can get what it aspires to only in society -- or, in the language of Hegel, it n207 Id. P67. belongs to an ethical universe and can achieve n208 Id. P70. The oblique references to freedom only inside it. slavery and suicide in paragraphs 67 and 70 Plamenatz, History as the Realization of are made explicit in the Additions, at Freedom in HEGEL'S POLITICAL paragraphs 44 and 45. PHILOSOPHY 30, 40-41 (Pelczynski ed. 1971). n209 Probably because of the technology of n188 G. HEGEL, supra note 4, P51. his time, Hegel did not consider the possibility of mass production capable of imitating an n189 Id. P50. artist's work. See id. P68 (copy of a work of art n190 Id. P51. contains elements of copyist's skill whereas n191 Id. P64. copy of books are merely mechanical reproductions). n192 Id. Page 66 77 Geo. L.J. 287, *

n210 Id. Federal Preemption, 66 CORNELL L. REV. 673, 680 (1981) (citing several cases granting n211 Id. P69. publicity rights). n212 Id. n220 Indeed, it is hard to say whether an n213 Id. author's writing or an author's persona is the n214 Id.; see also id. P170. better medium for expressing personality. The persona may be more important because it n215 See generally J. HYPPOLITE, STUDIES represents a whole character, image, and ON MARX AND HEGEL 82-83 (1969); D. lifestyle, while an author's written works MCLELLAN, THE YOUNG HEGELIANS consist of only specific expressions. On the AND KARL MARX 140-41 (1969); C. TAYLOR, other hand, a novel may be a more accurate HEGEL AND MODERN SOCIETY 144-45 representation of personality for some writers (1979). because the work is an intentional expression n216 Bleistein v. Donaldson Lithographing of the creator, while the persona is the Co., 188 U.S. 239, 250 (1903). individual's intentional and unintentional actions combined with popular reaction to n217 "Persona" is a term used when these actions. Indeed, it is difficult to fit discussing the right of publicity and the right personas into both the labor and personality to one's image, name, or likeness. Hengham & theories of intellectual property. They are Wamsley, The Service Mark Alternative to the sometimes the result of hard work towards Right of Publicity: Estate of Presley v. Russen, 14 securing a public image based on an internal PAC. L.J. 181, 182 (1983). vision. But quite often they are creations of n218 While some politicians and rock stars pure chance, perhaps the only "intellectual may work on their public images, the world is property" without . full of famous athletes, heroes, and actors who n221 The privatization of space satellites, do not labor to create their public images. however, raises the spectre of new geographic However, in Memphis Development Foundation data being monopolized in the hands of v. Factors, 616 F.2d 956, 959 (6th Cir. 1980), the private individuals and released only in court found that protection of the persona was copyrighted works. intended to motivate creativity. n222 Arno corrects for Mercator distortions n219 Aspects of the persona have been that make the northern hemisphere, i.e. first given property or quasi-property protection in and second world countries, appear larger in a series of cases throughout the country. See, land area than they really are and that make e.g., Hirsch v. S. C. Johnson & Sons, Inc., 90 the less developed nations of the southern Wis.2d 379, 403, 280 N.W.2d 129, 140 (1979) hemisphere look smaller. See P. ARNO, A (publicity rights granted over use of NEW MAP OF THE WORLD (1983). nicknames); Price v. World Vision Enter., 455 F. Supp 252, 266 (S.D.N.Y. 1978) (enjoining n223 For example, since the 1950s, China defendants from using voices and likenesses of has been consistently colored yellow on Laurel and Hardy), aff'd, 603 F.2d 214 (2d Cir. National Geographic maps. See, e.g., 1979); see generally Shipley, Publicity Never Dies; NATIONAL GEOGRAPHIC SOCIETY, It Just Fades Away: The Right of Publicity and Page 67 77 Geo. L.J. 287, *

ATLAS OF THE WORLD 132-43 (14TH ed. n231 G. HEGEL, supra note 4, P71. 1975). n232 Id. P65. n224 Trademark Clarification Act of 1984, n233 See generally id. PP72-81. Pub. L. No. 98-620, 98 Stat. 3335. n234 See Shelley v. Kraemer, 334 U.S. 1, 22-23 n225 See H.R. REP. NO. 781, 98th Cong., 2d (1948) (states violate fourteenth amendment by Sess. 9, reprinted in 1984 U.S. CODE CONG. & enforcing racial discrimination clauses in real ADMIN. NEWS 5750, 5758-59 (discussing H.R. estate agreements). 1007, 96th Cong., 1st Sess. (1979)). n235 See generally Reno, The Enforcement of n226 We tend to feel that a particular Equitable Servitudes in Land, 28 VA. L. REV. 951, invention, unlike a particular novel, would 972 (1942) (affirmative burdens on purchased eventually be created by someone. See land not enforceable in equity). generally Marconi Wireless Co. v. United States, 320 U.S. 1, 62 (1943) (assessing importance of n236 Dr. Miles Medical Co. v. Park & Sons individual inspiration to scientific and Co., 220 U.S. 373, 404 (1910). technological development in light of view that n237 Licensing arrangements take either of scientific progress is gradual evolutionary two forms. One approach, common with process). patents, is to license an individual to use a n227 Cf. P. DAVIS & R. HERSH, THE patented process for her own work. This is MATHEMATICAL EXPERIENCE 298-316 directly analogous to alienation of single (1981) (chapters "Comparative Aesthetics" and copies. "Licensing" might also take the form of "Nonanalytic Aspects of Mathematics"). giving a marketing company all rights to a copyright or patent in exchange for fixed n228 Cf. Apple Computer, Inc. v. Franklin royalties. This would seem more analogous to Computer Corp., 714 F.2d 1240, 1253 (3d Cir. complete alienation of the res. 1983) (dictum) (when idea underlying computer program can be expressed in n238 G. HEGEL, supra note 4, § 66. different ways, choice of expression can be n239 Compare Bowie, The Rise and Fall of protected by copyright), cert. dismissed, 464 U.S. Ziggy Stardust and the Spiders from Mars (RCA 1033 (1984). 1972) with Bowie, "Heroes" (RCA 1977). n229 Refusing to grant property rights over n240 See D. STOCKMAN, THE TRIUMPH discovered scientific facts may be a fitting OF POLITICS (1987). example of insufficient personality association n241 Perhaps no writer has stated this limiting property rights over a set of ideas. more eloquently than Borges himself: n230 See F. W. Woolworth Co. v. It's the other one, it's Borges that things Contemporary Arts, Inc., 193 F.2d 162, 164 (1st happen to. . . . News of Borges reaches me Cir. 1951) (though variations in manner of through the mail and I see his name on an sculpting might be appreciated only by a academic ballot or in a biographical dictionary. "fancier," such variations are nonetheless a I like hourglasses, maps, eighteenth century product of "something irreducible" in topography, the taste of coffee, and sculptor). Stevenson's prose. The other one shares these Page 68 77 Geo. L.J. 287, * preferences with me, but in a vain way that Indeed, a creator concerned purely with converts them into the attributes of an actor. It personality expression might allow free would be too much to say our relations are reproduction of his work as long as these hostile; I live, I allow myself to live, so that restrictions were honored. Borges may contrive his literature and that n245 G. HEGEL, supra note 4, P 71. literature justifies my existence. I do not mind confessing that he has managed to write some n246 Id. P69. worthwhile pages, but those pages cannot save n247 Id. P66. me, perhaps because the good parts no longer n248 American intellectual property laws belong to anyone, not even to the other one, are often compared to their European but rather to the Spanish language or to counterparts, which are based on the concept tradition. . . . But I must live on in Borges, not of "moral rights." See, e.g., Katz, supra note 170, in myself -- if indeed I am anyone -- though I at 410-20 (examining receptivity of American recognize myself less in his books than in law to doctrine of moral rights); Roeder, supra many others, or than in the laborious note 170, at 557 (comparing American strumming of a guitar. Years ago I tried to free copyright law with European doctrine of moral myself from him and I passed from lower- rights); Merryman, The Refrigerator of Bernard middle-class myths to playing games with Buffet, 27 HASTINGS L.J. 1023, 1042 (1976) time and infinity, but these games are Borges' (discussing reasons for absence of moral rights now, and I will have to conceive something doctrine in American copyright law). else. . . . I do not know which of us two is writing this page. n249 See, e.g., Sarraute, Current Theory on the Moral Rights of Authors and Artists under J.L. BORGES, Borges and I, in LABYRINTHS French Law, 16 AM. J. COMP. L. 465, 478-80 246 (J.E. Irvy trans. 1964). (1968) (discussing French statutory and case n242 G. HEGEL, supra note 4, PP66-69 law protections of an author's right to have his (discussing inalienable types of property that name associated with his work). constitute one's "own private personality," n250 See Buffet v. Fersing, [1962] Recueil such as inventor's idea for a machine; Dalloz [D. Jur.] 570, 571 (Cour d'appel Paris) comparing alienation of such property to total (enjoining sale of separate panels from alienation of personality in slavery). refrigerator creator had painted and had n243 G. HEGEL, supra note 4, P69 ("the intended as integrated whole); cf. Whistler v. primary means of advancing the sciences and Eden, [1898] Recueil Periodique et Critique arts is to guarantee scientists and artists [D.P. II] 465 (Cour d'appel Paris) (on moral against theft and to enable them to benefit rights grounds, James McNeill Whistler was from the protection of their property"). allowed to refuse to deliver portrait he had n244 A creator concerned only with finished and had been paid for, although he economic return might allow radical brutal was required to restitute contract price). changes in his work if this produced the most "Inalienable," however, should not be profit. Personality considerations, by contrast, construed in absolute terms. For example, cause owners to prohibit change, deletions, or under French law, an author can contract to misattributions during any reproduction. Page 69 77 Geo. L.J. 287, * not exercise at least some of his "inalienable" (Douglas, J., dissenting from denial of content control. certiorari) (courts should not apply more lenient constitutional standards to copyright n251 6 STUDIES IN INDUSTRIAL than to patent law), denying cert. to 441 F.2d 579 PROPERTY AND COPYRIGHT LAW: (9th Cir. 1971). GERMAN INDUSTRIAL PROPERTY, COPYRIGHT, AND ANTITRUST LAWS 114 n261 111 U.S. 53 (1884). (F. Beier, G. Schricker & E. Ulmer eds. 1983). n262 Id. at 60. n252 See supra note 170. n263 Harper & Row v. Nation Enters., 471 n253 In late 1988, the United States became U.S. 539, 547 (1985). the 78th nation to join the Berne Copyright n264 Doran v. Sunset House Dist. Corp., 197 Convention. See supra note 22. The F. Supp 940, 944 (S.D. Cal. 1961), aff'd, 304 F.2d Convention provides minimum standards of 251 (9th Cir. 1962), quoted in Runge v. Lee, 441 copyright protection in member states F.2d 579, 581 (9th Cir.), cert. denied, 404 U.S. 887 including a provision that protects "moral (1971). rights." Berne Convention, supra note 22 art. 6, bis (1); see Goldberg & Bernstein, 7 A.B.A. n265 Hotchkiss v. Greenwood, 52 U.S. (11 PAT., TRADEMARK & COPYRIGHT NEWSL., How.) 248, 267 (1850). No. 3, at 5 (1989) (response of Congress and n266 Harries v. Air King Products, 183 F.2d World Intellectual Property Organization that 158, 162 (2d Cir. 1950). U.S. law already provided compatible n267 See Trade-Mark Cases, 100 U.S. 82, 94 protection to "moral rights" was a bit of a (1879) (trademarks not afforded similar stretch). constitutional protections given to copyrights n254 188 U.S. 239 (1903). and patents). n255 Id. at 250. n268 See Standard Paint Co. v. Trinidad n256 Id. Asphalt Co., 220 U.S. 446, 453-54 (1911) (term "rubberoid" merely descriptive of asphalt n257 Id. roofing product and not arbitrary misspelling n258 In fact, LEXIS searches uncovered of "rubberroid"). only one case that explicitly reasons with the n269 Federal Trademark Act, ch. 592, 33 "personality" model adopted by Holmes: F.W. Stat. 724 (1905) (current version at 15 U.S.C. § § Woolworth Co. v. Contemporary Art Inc., 193 F.2d 1051-72, 1092-96, 1111-27 (1982)). 162, 164 (1st Cir.) (artist's rendering of cocker spaniel in show position reflected "something n270 See 1 J. MCCARTHY, TRADEMARKS irreducible" about artist and is therefore AND UNFAIR COMPETITION § 5:3, at 137 protected by copyright (citing Bleistein, 188 (2d ed. 1984). "Fanciful" marks are words or U.S. at 249-50)), aff'd, 344 U.S. 228 (1951). symbols that did not exist in common usage prior to their creation for the purpose of n259 188 U.S. at 250. trademark. "Arbitrary" marks are words or n260 However, Justice Douglas did present symbols that are in common usage, yet are the issue in an unusual dissent from a denial of unrelated to and nondescriptive of the item to certiorari. See Lee v. Runge, 404 U.S. 887, 890 which they are attached. Page 70 77 Geo. L.J. 287, *

n271 Examples of such "words" are representation . . . and shall cause such goods "Clorox," "Cutex," "Cuticura," "Polaroid," or services to enter into commerce . . . shall be "Sanka," and "Yuban." Id. § 11:3, at 428. liable to a civil action . . . by any person who believes that he is or is likely to be damaged by the n272 Stork Restaurant v. Sahati, 166 F.2d 348, use of any such false designation or representation." 355 (9th Cir. 1948) (words "Stork Club" Id. (emphasis added). arbitrarily used by successful restaurant developed secondary meaning -- a club for n279 376 U.S. 254 (1964) (public official storks -- that is protected from exploitation by cannot recover damages for defamatory imitators). falsehood without a showing of actual malice). n273 1 J. MCCARTHY, supra note 270, § § n280 Time, Inc. v. Hill, 385 U.S. 374, 387-88 11:1-11:2, at 433-36 ("inherently distinctive" (1967) (under state statute providing remedy encompassess "fanciful," "arbitrary," and also for "unwanted publicity" New York Times "suggestive" marks -- those that fall in the standard applicable not only to public officials, middle ground between inventions and pure but also to matters of public interest); Gertz v. description). Robert Welsh, Inc., 418 U.S. 323, 349 (1974) (private individuals must meet New York Times n274 This is a label for cereal made of standard to recover presumed or punitive raisins and bran. Skinner Mfg. v. Kellogg Sales damages). Co., 143 F.2d 895, 898 (8th Cir. 1948) (trademark disallowed as merely descriptive). n281 See generally E. GOFFMAN, FRAME ANALYSIS (1974); E. GOFFMAN, THE n275 This was a description of chocolate PRESENTATION OF SELF IN EVERYDAY candies with a liquid center. In re Bianchi Co., LIFE (1971). 165 U.S.P.Q. (BNA) 145 (1970) (trademark disallowed as merely descriptive). n282 Warren & Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 201, 205 (1890). n276 1 J. MCCARTHY, supra note 270, § 2:13, at 94 (truth is necessary to ensure that n283 196 Misc. 67, 80 N.Y.S.2d 575 (1948), decision to purchase ultimately made by aff'd, 275 A.D. 692, 87 N.Y.S.2d 430 (1949). consumer, not dictated by manufacturer n284 Id. at 69, 80 N.Y.S.2d at 577. through manipulation of trademarks). n285 295 F. Supp. 331 (S.D.N.Y. 1968). n277 Federal Trade Comm'n v. Royal Milling Co., 288 U.S. 212, 216 (1933). n286 Id. at 355-56 (assumed name or pseudonym not within meaning of New York n278 Indeed, the Second Circuit has held in Civil Rights Law); see also Jaggard v. R. H. Macy Colligan v. Activities Club of New York, 442 F.2d & Co., 176 Misc. 88, 89, 26 N.Y.S.2d 829, 830 686, 692 (2d Cir.), cert. denied, 404 U.S. 1004 (1940) (name assumed only for business (1971), that consumers do not even have purposes not within protection of Civil Rights standing to sue under section 43(a) of the Law), aff'd per curiam, 265 A.D. 15, 16, 37 Lanham Act, 15 U.S.C. § 1125 (1982), which N.Y.S.2d 570, 571 (1942) (finding that dress provides that "[a]ny person who shall affix, designer is not even entitled to protection of apply, or annex or use in connection with any her true name when dress had been placed in goods or services . . . a false designation of public domain without copyright protection). origin, or any false designation or Page 71 77 Geo. L.J. 287, *

n287 Weinreb, Generalities of the Fourth 1978-1985, for time spent in discussing this Amendment, 42 U. CHI. L. REV. 47, 52-54 argument. Surprisingly, I have not (1974). encountered other uses of the freedom of expression rationale in my survey of the n288 Id. at 52-53 (privacy by presence exists literature. when a person is present in a public place and is not engaged in a public performance or n296 Free speech serves an "individual event). interest, the need of many men to express their opinions on matters vital to them if life is to be n289 See Warren & Brandeis, supra note worth living." Z. CHAFFEE, FREE SPEECH IN 282, at 201, 205. THE UNITED STATES 33 (1969 ed.). n290 A repertory company in Texas n297 See New York Times Co. v. Sullivan, 376 actually began work on such a production but U.S. 254, 269-70 (1964) (free political discussion stopped when Albee threatened legal action. is fundamental principle of American system Stick to the Script, N.Y. Times, Aug. 5, 1984, § 4, of government); see also A. MEIKLEJOHN, at 7, col. 3. FREE SPEECH AND ITS RELATION TO n291 Note, however, that lines that the SELF-GOVERNMENT (1948) (discussing authors explicitly committed to non- importance of freech in understanding validity publication could be protected under the and comprehensive meaning of the Warren-Brandeis privacy argument, not as Constitution). invading the authors' substantive privacy, but n298 See Virginia State Board of Pharmacy v. because authors retain the right to prevent Virginia Citizens Consumer Council, 425 U.S. 748, publication of private writings. See supra text 765 (1976) (free flow of commercial accompanying note 282. information necessary for consumers to make n292 Satie was particularly well-known for informed choices and best allocate resources). his humorously obscure approach to the arts. n299 In his famous Whitney concurrence, His title, "En Habit de Cheval" can be Justice Brandeis formulated what may be the understood either as "In Riding Clothes" or "In only mention by a Justice of a personal the Clothes of a Horse." development/personal health basis for free n293 Note, Copyright, Free Speech, and the speech. He drew a link between "freedom to Visual Arts, 93 YALE L.J. 1565, 1565 (1984) (by think as you will and speak as you think." P. Krieg). Whitney v. California, 274 U.S. 357, 375 (1927) n294 Kwall, supra note 170, at 68. (Brandeis, J., concurring); see Bork, Neutral Principles and Some First Amendment Problems, n295 See generally D. LADD, SECURING 47 IND. L.J. 1, 24-26 (analyzing Brandeis' four THE FUTURE OF COPYRIGHT, A justification for free speech). HUMANIST ENDEAVOR (1984) (proposing new domestic laws and minimum n300 See Gertz v. Robert Welch, Inc., 418 U.S. international standards to combat perceived 323, 344 (1974) ("Public officials and public threat to copyright resulting from figures usually enjoy significantly greater technological innovation). I am indebted to access to the channels of effective David Ladd, Registrar of Copyrights from communication and hence have a more realistic opportunity to counteract false Page 72 77 Geo. L.J. 287, * statements than private individuals normally n311 Address by Stephen Stewart, 1980 enjoy."); Wolston v. Reader's Digest Ass'n, 443 Geiringer Lecture at New York University U.S. 157, 164 (1979) ("[P]ublic figures are less (Nov. 17, 1980), reprinted in 28 BULL. vulnerable to injury from defamatory COPYRIGHT SOC'Y 351, 369 (1981). statements because of their ability to resort to n312 The limited reproduction process effective 'self-help.'"). before the printing press revolutionized n301 Cinelli, Comrade's Doublespeak: The publication was very decentralized. An author Intransigent and Unchanging Soviet Copyright could not police the scribes reproducing his Laws (unpublished paper on file with author). book and catch all the intentional and unintentional mistakes they made. n302 538 F.2d 14 (2d Cir. 1976). n313 The increasing quality of desktop n303 Id. at 26. "printing" has brought copyright issues to the n304 Id. at 25. fore already. The varying views are reflected n305 Id. in two editorials in PUBLISH: THE HOW-TO MAGAZINE OF DESKTOP PUBLISHING n306 See, e.g., Stevens v. NBC, 148 U.S.P.Q. (August 1987). In his column, the magazine's (BNA) 755, 758 (Cal. Super. Ct. 1966) (contract publisher writes, did not contain grant of television rights enabling defendant network to make changes; [I]f you believe that it is illegal to tamper network therefore enjoined from inserting with an image without obtaining prior consent commercials that would "alter, adversely affect from the copyright owner, what then? Does or emasculate the artistic or pictorial quality of that mean Andy Warhol was really a soup-can [the film] so as to destroy or distort materially scanner? Is the Picasso estate now wide open or substantially the mood, effect, or to a class-action suit brought by all the continuity"); Seroff v. Simon & Schuster, 6 Misc. aboriginal tribes of Papua New Guinea whose 2d 383, 390, 162 N.Y.S.2d 770, 777 (1957) primitive art influenced the Spanish painter? (defendant publisher had a duty to select Bunnel, Scanned Laughter, id. at 9 (emphasis appropriate, competent foreign translator in original). The editor of the magazine argued when publisher had translation rights and sold otherwise: "[T]he boundaries of intellectual them to third party who produced distorted property are at issue here, and those borders translation). are to be jealously guarded. Artists, n307 412 U.S. 94 (1973). photographers, graphic designers -- like writers and consumers -- earn their living n308 Id. at 193 (Brennan, J., dissenting). (when they're lucky) by selling, licensing, even n309 See M. MCLUHAN, THE bartering what they create." Gubernat, Stop, GUTENBERG GALAXY: THE MAKING OF Thief!, id. at 17. TYPOGRAPHIC MAN (1962) (discussing n314 Kwall, supra note 170, at 69. change of ideas, beliefs, and values spurred by technological advancements and the n315 [T]he pertinacious orators and writers consequences for an "open society"). who get hauled up are merely extremist spokesmen for a mass of more thoughtful and n310 Kaplan, supra note 15, at 118 (citing more retiring men and women. . . . When you M. MCLUHAN, supra note 309). Page 73 77 Geo. L.J. 287, * put the hotheads in jail, these cooler people do in the United States, the law review editing not get arrested -- they just keep quiet. And so process produces an increasingly monotonous we lose things they could tell us, which would literature where no radical positions are be very advantageous for the future course of expressed uncompromised and no the nation. propositions are put forward without the editor disagreeing in contrapuntal footnotes. Z. CHAFFEE, FREE SPEECH IN THE But see Hughes, The Philosophy of Intellectual UNITED STATES 561 (1946 ED.). Property, 77 GEO. L.J. 287, 364 n.316 (1988) n316 I can think of no better example, (author's style retained in unedited tirade). having been part of the process myself, than n317 B. KAPLAN, supra note 15, at 74. the American law review. Compared to legal journals elsewhere or other scholarly journals