Panel Four, Joseph Bauer – Moderator
Jeanne Fromer, The Role of Creativity in Trademark Law
Lady Gaga was sued by an ex-boyfriend for a share of her profits. His story was that he helped create her, in part by coming up with her name. The suit settled, but the interesting thing for her was that there is no TM claim, even though he alleged he came up with the name of her brand. So what’s the role of creativity in TM?
TM protects indicators of source as long as they are recognized as such, even if that source is itself unknown to the consumer. TM is about use; conceiving of the mark has no necessary relation to its use. Ownership controversies do break out, for example when members of a musical group that’s broken up fight over the name, but there’s very little solicitude for the creator.
Unless you interpret creator differently: this person created a link between the mark and the service. Then TM does reward the creator, unless the public is the creator (e.g., when Playboy gets protection over “bunny” because of public reaction).
Schecter said that creativity was important to TM once people stopped understanding who the actual source was: creativity is important to consumers. Establishing a link between the mark and the underlying good/service entails creativity: recall earlier discussion of balancing newness v. appropriateness as the two poles for creativity. TM users strive for appropriateness as they create a new link. (I think Tom Lee’s work on consumer perception challenges this: put almost anything in the place a mark ordinarily goes and people perceive it as a mark.)
TM law thus incentivizes a certain kind of creativity. In infringement, strength of the mark matters, which requires assessement of distinctiveness. In addition, defendant’s intent in using the mark is important—she argues that bad intent is more likely to be found the more distinctive the mark is. (I think she’s talking about conceptual distinctiveness not marketplace strength, but I might be wrong.) Protectability standards also demonstrate this by distinguishing inherent from acquired distinctiveness. TM incentivizes going to the extremes because the boundary between descriptive and suggestive is fuzzy (courts split on what L.A. for low alcohol beer means), so you do better to pick arbitrary or fanciful terms.
Mario Biagioli, Originating Creativity: The Peculiar History of “Personal Expression”
The author as vegetable. 18th and 19th century Western accounts of creativity: how is creativity conceived of by the law, or people arguing about what the law should be, in order to establish property rights? Goethe analogized a novel to a green plant shooting up and producing a flower; Edward Young, 1759, said that an original work “may be said to be of a vegetable nature; it rises spontaneously from the vital root of genius; it grows, it is not made.” He contrasts that to imitators who make things from preexisting materials.
What is creativity? We don’t know what the term means. Has doubts about the mentalistic picture of creativity but also about whether this thing is exclusively human. Machines, experimental systems: creative agency is not only human—in the Lady Gaga story, the name allegedly came from a spelling correction made by a phone to an attempt to type Queen’s Radio Gaga.
So, the traditional accounts: Constant analogies between landed agriculture and IP; references back to the Lockean narrative of production of property rights in tangibles. There is more to it than Lockeanism, though. If you go back to fundamental texts in which the notion of genius and personal creativity were articulated, you find the notion of the spark of genius side by side with the idea that genius is a plant. What is it that allows genius to be related to apparently diametrically opposed processes, nearly instantaneous and boringly slow?
These narratives do not do what they are supposed to do. Consider the Young quote. But the genius is neither the owner of the field in which the plant grows, nor the farmer who cultivates the plant; the genius is the plant itself. The plant is the model for the production of the literary work that deserves copyright protection. Genius belongs to nature, not to artifact. Artifacts are the realm of copiers. If you follow the rules of writing craft, you are not producing works of genius. Genius is unaware of itself: the writer notices that the work is happening through him, but is not aware of the work being done. Young: The original writer is an oyster who does not know it contains a pearl or a rock that does not know it contains a diamond. Genius absorbs nutrients through the roots. A mechanism of “culture laundering”—absorbs culture as chemicals, not as culture.
Criticism: real creativity is collective, starts with other texts that have inspired the author; others are involved in creating the material artifact. Genius is the image that renders all the rest of this invisible. His argument: genius doesn’t do this—in Young’s text, the coverup doesn’t work because the proposed notion of genius falls apart by naturalizing genius.
Fichte, 1791: argued that no one can ever appropriate the author’s ideas, because by understanding them the reader transforms them. By virtue of being in the reader’s brain, they were no longer the author’s. It was thus theoretically impossible to violate the author’s rights: if you understand it, it’s yours. This was not an argument against copyright but for it: Damage to the author could only be done by reprinting. Reprinting constituted taking over the usufruct of the author’s property. Fichte also maintained that engravings of paintings were fine because they were not reproductions; they altered the form. Even an engraving of an engraving was not a reprint, because each artist contributed his own unique form. Only taking someone else’s plate would be (bad) reprinting. Implication: making a movie out of a novel would not infringe.
Taken seriously, weird notion for birthplace of copyright: looks like a very limited right.
Genius and creativity are neither vegetable nor natural: Fichte and Young present the author as such, exposing the problem of coming up with a cultural construction/definition of creativity.
Abraham Drassinower, Incentives, Rights and the Public Domain in Copyright Law
Rights-based accounts of copyright have a promise we have not yet explored: a vigorous public domain. Idea that copyright is supposed to incentivize creativity is fundamental to North American copyright discourse, whatever side of the copyright wars you’re on. But vivid controversy hides depth of latent agreeement: bedrock idea that © is about incentivizing creativity. The wars are not foundational struggles. Civil wars in which each side feels the other is betraying the nation to which the combatant is faithful. Minimalist argument is that expansive copyright rights can interfere with creativity by ignoring role of users. Question is only about the effects of protection on creativity.
Minimalist complaint about copyright expansion is not about expansion per se but about its effects. If we showed that expansion increased public welfare, there’d be nothing wrong with it—an empirical dispute.
Minimalists accept the evidence that copyright has expanded, and thus empirically stifles innovation. But then minimalists insists that copyright normatively should be about incentivizing creativity. Empiricists think they’re having an empirical debate, but they’re deeply normative.
But therefore convergence between theory and practice can’t prove the theory—contracting copyright wouldn’t prove the minimalist story.
Creativity as constitutional imperative: “progress” of science and the arts. If that’s true, then we ought to stop behaving as if the meaning of progress and art were self-evident, and as if we could understand copyright as a mere means to its end. The idea that progress in art is something that we could achieve by legal means is not self-evident.
Civil law jurisdictions: copyright is a recognition of the inherent dignity of authorship. North American minimalists think this can’t account for limits on scope, so avoid rights accounts.
Wants to reverse this: instrumental accounts help expand copyright and a rights-based account could affirm the public domain. Familiar story: Donaldson v. Beckett overturned Millar v. Taylor, establishing copyright as a statutory right rather than a common-law right of authors. But an equally important story would be that Millar survived through Donaldson. Mark Rose: the common-law right triumphed through reconceiving the statutory right as a recognition of the public interest in giving authors rights/commodifying knowledge.
Consider the sweat of the brow standard and its rejection in North America. Manifest story: move away from sweat of the brow heightens the copyright standard and increases the public domain. Latent story: we generally think of sweat of the brow as endorsing the idea that the author is entitled to the value generated through her labor. But there are actually 2 related propositions: (1) author is entitled to the value she originates; (2) implicit, the author is a generator of value. Rejecting sweat of the brow rejects the first but accepts the second. Sets the stage for redistribution of value from author to public, but doesn’t challenge the image of author as generator of commodified value. This is just a decrease in price public must pay. Upshot: successful haggling on price masquerades as a conceptual foundation for the public domain.
Instrumentalist stance lacks a sense of the constituitive sense of the public domain. Public domain is a mere tool of public interest. Linked only empirically; its role is negotiable, whereas the author’s role is secure in the incentive paradigm. Where transaction costs drop, it seems more and more difficult to postulate a public domain. Tech can help the market cure itself, making the public domain obsolete. (My reaction: This might not be true if the public domain helps the public interest as a matter of, essentially, natural law—Carol Rose has this discussion about the comedy of the commons/the way in which open spaces inherently and always enhance overall social value.)
His move: define authorship as an act of communication. Define rights: transformative uses, uses that involve another author, would be legitimate as long as the use is reasonably necessary. Fair use is fair because defendant isn’t just repeating the work parasitically but is herself an author; plaintiff’s own claim is an authorship claim, no better than defendant’s. (Not sure I’m convinced—courts weigh people who have the same claim for whose version is better all the time.) His paradigm would also liberate any noncommunicative uses from copyright liability, with the paradigm being Baker v. Selden. Scope limitations would not be imposed on author externally but flow from the nature of subject matter as communicative. They are not negotiable to serve the public interest, but part of juridical recognition of the inherent dignity of authorship.
Buccafusco for Fromer: TM law promotes the novelty half of creativity, but does it do anything meaningful about appropriateness? When people are contemplating a mark, they have to balance descriptiveness (Food Fair is very good at communicating what it is) and uniqueness.
Fromer: law doesn’t care as much about social appropriateness because it doesn’t need to; the market takes care of that. Except that the law constrains anticompetitive uses of terms. There is every incentive to adopt socially appropriate marks to facilitate acceptance.
My discussion with Drassinower: he thinks that harm-based discussions will never get us to identify what we think is important about authorship; that is, what authorship is and what we want to protect.