Friday, August 25, 2006

Art and Property

Today's New York Times carries a review of a new exhibit of Walker Evans photographs, Walker Evans. Or is It?, that raises some interesting questions about the nature of intellectual property.  (The reviewer's focus is on the questions raised about the nature of photography; I merely extend the inquiry a bit here.)  Some of Walker's prints from the 1930s that are in the public domain were digitally scanned and printed in an enlarged format, now on display until November 17 at the UBS Art Gallery on Sixth Ave. in New York.  The result, as the reviewer tells us, are images that are "seductive and luxurious -- velvety, full of rich detail, poster-size in a few cases and generally cinematic." Because they are unlike the smaller-format silver gelatin prints that Evans made "the pictures are read differently, more piecemeal, in a way that film in a theater is viewed differently from an image on television or on a computer screen."  From an artistic standpoint, the reviewer wonders whether photography is closer to music and theater, where each performance is an interpretation of an original score or text, or painting, where there is but one object, and copies are fraudulent.  From a property perspective, what is the property that inheres in a photographic image?  The economic rights are fairly obvious.  I'm more interested in what the civil law terms the moral rights of artists. Of course, the artist can control this by retaining the copyright, and because these Evans prints are in the public domain there is no issue of whether Evans's economic property rights have been violated.  That raises the Visual Artists Rights Act of 1990, which brings into federal law a portion of the civil law notion of moral rights of artists, and provides at 17 U.S. C. 106A (a)(3)(A) that a visual artist has the right "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation . . . ."  From viewing the photos on display in today's Times, in my humble view, the digitial prints surely don't violate this statute.  But what of the larger, more philosophical, point?  What does a photographer own?  Is a photographic image more like a painting or a musical score? 

Calvin Massey

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August 25, 2006 in Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 11, 2006

Takings and Patents

Over at Patently-O, Dennis Crouch has an interesting post on a Fed Circuit case holding that a patent is not a property right protected by the Takings Clause.  My own (admittedly somewhat uninformed) comments on the related issue of state takings of IP are here and here.

Ben Barros

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April 11, 2006 in Intellectual Property, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 5, 2006

Federalist Society Intellectual Property Conference

The Federalist Society is organizing a conference on Intellectual Property:  Back to Basics in Washington D.C. on May 17:

10:00 a.m. - 11:45 a.m.
Panel One: By Any Other Name: Intellectual Property as "Property"

Is intellectual property really "property?" The property label has become controversial in modern scholarship and policy debates. Some contend that copyright and patent law should be about innovation policy, not property rights. They view patents and copyrights as a necessary evil provided to encourage progress in the arts and sciences. In this view, there is no inherent justification for the rights of intellectual property owners; they are wholly contingent on the social good they produce. Others view the concept of property far more expansively, and they see intellectual property as a key component of individual liberty, justified by ownership of one's own person and labor. These opposing views lead to very different understandings of intellectual property.

This panel will focus on the philosophical and practical implications of intellectual property as property. Is intellectual property best treated as cultural and innovation policy or as a private property right? Are intellectual property rights morally justified by the owner's right to life and liberty? Does intellectual property only impose on other liberties, or does it in fact support and defend them? How can property doctrines and policies strike a balance between owners' rights and the public interest? This panel will present several differing perspectives on these questions, examining how they apply to patents, copyrights, trademarks, and other forms of intellectual property.

12:00 noon - 1:45 p.m.
Panel Two: Modern Intellectual Property Rights: Unprecedented Growth or Unprecedented Erosion?

Are intellectual property rights stronger than ever or are they under unprecedented attack? Conventional wisdom is of two minds. Intellectual property owners contend that intellectual property rights are threatened like never before. On the other hand, critics believe that intellectual property rights have grown to an unprecedented and unhealthy degree. Most agree that intellectual property rights should encompass a balance between private rights and the public interest, but there are starkly different views as to whether the balance is tipping the right way. For example, some object to the use of antitrust law to overcome intellectual property rights held by large corporations, while others say it has not gone far enough. Many assert that governments should use compulsory licensing of patents and other intellectual property rights to correct perceived market failures. Some open source and free software advocates contend that governments should favor open source software over market-based models of software development. How should policymakers balance intellectual property rights with market considerations? With the public good? Are we striking the right balance or are we failing?

Confirmed Participants to Date Include:

Prof. Wendy Gordon, Boston University School of Law
Prof. F. Scott Keiff, Associate Professor, Washington University School of Law and National Fellow, Hoover Institution, Stanford University
Prof. Adam Mossoff, Michigan State University School of Law
Prof. Mark Schultz, Southern Illinois University School of Law
Ms. Gigi B. Sohn, President and Co-Founder, Public Knowledge

Ben Barros

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April 5, 2006 in Conferences, Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 29, 2006

Who Owns (and will profit from) Native Culture?

I'll be participating in a conference at the University of North Carolina on Thursday (and traveling much of the weekend), so I'm going to be pretty quiet until next week.  Plus, it looks like everyone's going to consumed for the next few days thinking about the new US News rankings.

Because the conference is on reparations, I thought I'd leave off with a post on a related topic:
One question that people are increasingly asking these days is: how can native people receive compensation for the products of their culture?  In the words of Williams College Professor Michael Brown's important 2003 book, Who Owns Native Culture?  These questions come up in all sorts of places: Keith Aoki's written a lot about native rights to property--like seeds.  Madhavi Sunder has the latest contribution to theorizing why traditional communities deserve compensation for preserving traditional knowledge here.  And in Hawaii this is increasingly a topic of much concern because of local products, like the sacred taro plant, are being genetically engineered and appropriated for use by non-Hawaiians.  And the preservation of sacred places is a topic that we're hearing a lot about in Hawaii.  As we discussed earlier this week, there is also increasing talk of preservation of access to cemeteries on the mainland.

I thought again about this problem recently when I visited the Honolulu Academy of the Arts.  They have a fabulous--and I do mean fabulous--exhibit of treasures taken by Captain Cook's crew back to Great Britain. It's called Life in the Pacific of the 1700s: The Cook/Forster Collection of the Georg August University of Göttingen.  The treasures found their way into Germany–-and so they’re now on loan from several German museums. The exhibit is absolutely fascinating; I highly recommend it.  There are clothes, including a stunning mourning dress and simple but beautiful and elegant garb.  There are also fish hooks of all sizes, mats, an extensive fish net, and weapons.  Notable by their absence are religious objects.

One of the many things that struck me was how beautiful the clothes are.  Let's face it: they're destined for Seventh Avenue in New York City.  Check out the Honolulu Academy of Arts website to see a picture a heva, a Tahitian full-length mourning dress with headdress.  The picture, which is stunning, just doesn't do it justice.  Most of the other clothes in the exhibit are quite simple; often made out of organic materials (like coconuts).   And I think they'll be a huge hit in the marketplace.  Now, we just need to figure out a way to insure that the descendants of the people who created this work receive some compensation....  One way for that to happen is for clothes designers in Hawaii and elsewhere in the Pacific to get busy.

Special thanks to my colleague Carl Christensen, who told me some things about the exhibit that I didn't know.

Alfred L. Brophy

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March 29, 2006 in Intellectual Property | Permalink | Comments (1) | TrackBack (0)

Monday, March 20, 2006

McKenna on Normative Foundations of Trademark

Mark P. McKenna (St. Louis University Law School) has posted The Normative Foundations of Trademark Law on SSRN.  Here's the abstract:

This paper challenges the conventional wisdom that trademark law traditionally sought to protect consumers and enhance marketplace efficiency. Contrary to widespread understanding, early trademark cases were decidedly producer-centered. Trademark claims, like all unfair competition claims, sought to protect a producer from illegitimate attempts to divert its trade, and consumer deception was relevant in these cases only to the extent it was the method by which trade was diverted.

Moreover, American courts from the very beginning protected a party against improperly diverted trade by recognizing property rights derived from a natural rights theory of property. That traditional approach dictated very specific and workable restrictions on the scope of trademark protection. In fact, despite repeated claims that modern trademark law is illegitimate because it has lost its consumer focus, the expansion of trademark law in the twentieth century was more a consequence of the rise of consumer protection rhetoric than a rejection of that view.

This paper argues that the broad protection trademark law now provides deserves sustained scrutiny, but that criticisms can be leveled against modern doctrines must stand on their own merits and fairly confront the policy goals of modern trademark law. The criticisms cannot draw their normative force by pointing to "traditional" principles that did not exist.

Ben Barros

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March 20, 2006 in Intellectual Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 1, 2006

Balganesh on Cybertrespass

Shyamkrishna Balganesh (Yale Law School) has posted Common Law Property Metaphors on the Internet: The Real Problem with the Doctrine of Cybertrespass on SSRN.  Here's the abstract:

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to examine the implications of transposing property metaphors to the world of the Internet, characterized by the absence of resource rivalry and the reality of positive value enhancement through increased usage (i.e., a network effect, whereby participation in use by many is a condition for value in use by any). It is argued that the transposition of proprietary concepts to the Internet is done for purely instrumental reasons - reasons that derive neither from the nature of the resource nor its usage. The paper then evaluates whether such an instrumental use of proprietary concepts on the Internet has any effect on the meaning ordinarily attributed to the concept of property and the identification of property as an independent institution of moral significance. It concludes by showing that the relative neglect that doctrines such as cybertrespass have for identifying the boundaries of the res over which the property right is to operate, is capable of undermining the minimum core of any understanding of property as an independent institution.

Ben Barros

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March 1, 2006 in Intellectual Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)