STS and IP: Attribution

Session 2: Paper by Catherine Fisk (“Attribution and Human Capital in the Twentieth Century: How Professional Reputation Became the New Intellectual Property”)

Von Hippel and the like tend to be utopian. They emphasize that creators care more about attribution than they do about ownership—people/businesses will forego IP protection for the sake of enhancing reputation/celebrity. Attribution has become the one form of IP that even zealous defenders of the public domain will defend. How did that happen?

She is writing a history of attribution in work relationships. By about 1930, any aggressive employer could claim ownership of a large amount of employee-generated IP as well as devices. So what’s left for employees? She’s less interested in how attribution affects the value of the item/the credibility of scientific work and more in how attribution affects labor relationships and the idea of knowledge as human capital. As people began to think of workers as more than muscles, and as valuable for tacit knowledge, we used attribution to create people and their worth to the things they created.

The paper has two examples: (1) archives of J. Walter Thompson ad agency, which was the largest American ad firm for most of the 20^th century, employing thousands of people. JWT and its competitors sold themselves on reputations for creativity—advertising employees’ human capital. Yet JWT was interested in maintaining a culture of nonattribution—employees didn’t even have their names on their doors. Excessive self-promotion was unprofessional, gauche, bad management. Talent was to be collective, not just an individual attribute.

JWT would produce entire radio shows for corporate clients—they’d recruit talent, including famous actors; hire tech people. They didn’t have written contracts with any employees, even when hiring people to create IP, nor did they have any explicit agreement on who owned the music, etc. The norm was that the creator wouldn’t reuse the work within a specified time. Later in the century, they did get much more protective over IP ownership; they negotiated with clients over what they could do with non-used ad concepts/layouts. They relied on moral obligation to keep clients from using ads that the clients initially rejected.

JWT did do attribution for purposes of salary reviews and the company newsletter. They maintained gender-segregated departments for a long time—Helen Landsdowne, widely attributed to be the genius behind ads appealing to women, insisted (with backup from other women) that if women worked with men in the firm, the men would get all the credit. This, the women argued, destroyed incentives to create as well as disserved the women. This history shows negotiation between individual and collective attribution.

(2) Idea submission by employees. The law basically treated idea submission by employees as gratuitous, no matter what the company said about compensating employee ideas as long as it gave itself some room to maneuver, even if it regularly did pay employees for ideas. One former IBM worker sued IBM, and lost, but created a website documenting his claim that IBM promised to pay for his ideas, didn’t do so, and thus treated him badly—pervaded with IP metaphors and stealing metaphors. IBM sought to encourage creativity and initiative.

Wants to link this to the right of publicity. Thinking of celebrity as an IP resource that can be managed. On the one hand, there’s the idea of romantic authorship—one is the author of oneself (or one’s work), entirely in control of one’s output. The Midler case adopts a highly romantic view of authorship—a voice is like a great work of art, something reflecting the genius of the self. But there’s another view in the publicity cases, such as the White case, where finding White’s essence to be protectable doesn’t rely on any romantic notion but just on the investment in the creation of the persona. There may be no authorship, but there’s value, and the law protects those too.

When those 2 views collide in an employment relationship, the results are interesting: the Lugosi case. Is Lugosi’s Dracula a reflection of his essential self, as the heirs argued? To say that anyone but him owns that is like taking the soul out of his body. Or is it an investment, where the investment in marketing came mostly from the studio? Is a work created in an employment context still somehow inalienable, or not?

Commentator Jessica Riskin: These developments represent a conjunction of IP/labor and expressive selfhood, where people understand themselves to be authors/owners in a particular way. The precursor idea, the philosophical prerequisite, was an Enlightenment idea coming largely from John Locke: the human mind works from the senses, rather than from God, which means that humans are creators and not just transmitters.

The notion of corporate IP was also very much the ancestor of IP—the notion of guild ownership of printing rights to a work. Printers in the US and France bought and sold these rights in the 16^th century. In the 1700s, secular literature exploded and “authors” were born, people who tried to make a living selling their works. Drawing on Locke, this new generation of commercial authors argued that ideas were the natural property of their creators, rather than the royally bestowed property of the printer. The countering argument was that ideas don’t originate in individual human minds but in nature, and come into human minds by collective experience (an intrinsically social process), which makes them public property twice over. This could be the ancestor of JWT’s emphasis on joint credit.

Carla Hesse has argued that the publishing reforms of the 18^th century that resulted from these battles were usually a compromise between the claims of authors and the public good, though tensions remained. Nations that were net exporters of ideas such as France and Germany favored the natural rights view, while importers like the US favored the social utilitarian argument. Then of course the US shifted its view.

Fisk describes a similar trajectory over a shorter timescale, from uncertainty about where ideas come from to a greater focus on individual genius. But the authors are still employees. How might one connect the older story to this more recent one? Are there continuities with the old guild privilege, or the social utilitarian/natural rights stories?

Madison: Fights over whose name goes in the office/on the website for law firms are well-known. And standardizing the services of a professional firm is a longstanding debate—he mentioned a law firm whose color scheme is white on white in every office all over the world, creating the appearance of uniformity.

Lemley: It’s increasingly difficult for one person to come up with a computer program. How does attribution work in a mostly-collective environment?

Fisk: Small software companies do a lot to make employees feel like they belong. If you can’t have attribution, maybe you need a strong collective identity.

Lemley: The relationship between private norms and employee mobility: In a world of low mobility, internal norms work fine. You may need an IP regime precisely at the point at which we break open the firm.

Biagioli: In some areas, having your name on an article isn’t a good guarantor of actual work—it’s not a good signal because of practices. It’s opaque because real attribution is done through letters of recommendation. (Comment: it’s a tragedy of the commons! Everyone wants credit but that destroys the coin!)

Lemley: Though we can imagine a “more the merrier” scheme, can’t we? If we don’t require attribution to serve a comparative/distinction function, at least.