Claire Corlett

Fish Food, Fish Tanks, and More
William Fisher, CopyrightX: Lecture 2.3, Fairness and Personality Theories: Personality

William Fisher, CopyrightX: Lecture 2.3, Fairness and Personality Theories: Personality

The famous architect Meinhard von
Gerkan designed the striking building shown on your screen. It serves as a train station in Berlin. It stands on an
historically important spot, in what we used to be No Man’s
Land between East and West Germany. As you can see, it’s quite
a remarkable structure. It was also expensive to build. It took eight years and
cost 700 million euros. To cut costs, Deutschebahn, the German
railway company that owns the station, decided not to install the
cathedral-like vaulted ceiling that von Gerkan originally designed,
but instead installed a cheaper, flat metal ceiling designed
by another architect. Outraged, von Gerkan brought a lawsuit. Altering his plans, he insisted,
was equivalent to, quote, “ripping pages out of
a novel,” end quote. The court agreed that
his original design had been defaced, and consequently,
that his rights had been violated. On that basis, the judge
ordered the ceiling rebuilt, even though it would
reportedly cost 30 million euros. Here’s another case. The Canadian sculptor Michael
Snow created this sculpture of a set of 60 realistic
flying geese, which hangs in Toronto’s Eaton Center,
which is a shopping mall. During Christmas season
in 1982, the mall decided to hang a red
ribbon around the neck of each goose as part of
its Christmas display. Snow found the ribbons, as he said,
quote, “ridiculous,” end quote. They undermined his
intention, which had been to create a naturalistic
image of birds in flight. Snow sought an injunction, compelling
them all to remove the ribbons. Judge O’Brien of the Ontario High Court
of Justice agreed with Snow’s position. An artist’s subjective intent
concerning the purpose and character of his work of art
deserves weight, the judge concluded, so long as it’s
reasonable, and Snow’s intent was. The judge ordered the ribbons removed. The moral intuitions that
underlie these and other rulings are different from the
intuitions that underlie what we have called Fairness Theory. They’re less concerned
with rewarding labor and more concerned with
respecting and protecting a special kind of emotional or psychic
bond between artist and creation. Both von Gerkan and Snow had been
well compensated for their efforts. In that sense, they’d already
been rewarded appropriately. But morality, and consequently, law,
many people believe, should go further, should recognize an artist’s
continuing control over his creations. To do otherwise would be to
cut at the artist’s soul. The source and political
philosophy of this approach is not Locke, but Kant and Hegel. I mean that in a special sense. As Cyrill Rigamonti has
argued, it’s not clear that the legal doctrines underlying
the cases that I just described were, in fact, influenced
by either Kant or Hegel. Rather, when contemporary
scholars and lawmakers look to philosophy for
sustenance and guidance when filling out their moral
intuitions, they look to Kant and Hegel, and more broadly, to the
personality theory of real property with which Kant and Hegel
are commonly associated. As I did with the
fairness approach, I’ll begin with a brief review of the
underlying theory of real property and then consider its
implications for copyright. The heart of personality
theory is the proposition that certain kinds of bonds with objects
are crucial to human flourishing, and consequently, that the law should
respect those bonds by creating and enforcing private property rights. Arguments of this sort
come in many flavors. Put differently, over the
centuries, different philosophers have identified a wide variety of ways
in which private property rights can contribute to human flourishing. They’re listed on the map. The first of these is peace of mind. This is emphasized by Charles
Fried in this book Right and Wrong. Awareness that, by using
resources, you are disadvantaging countless other people, some
of whom are desperately poor, can be morally exhausting,
Fried contends. Private property rights, by assuring
you that you own those resources, provides relief from that painful
and perhaps disabling emotion. The second argument,
highlighted by Jeremy Waldron in his justly famous book The Right
to Private Property, is privacy. One of the functions
of a property right is to provide you a place where you can
either be alone or enjoy intimacy with others. The home, protected by
private property rights, is a haven in a heartless world. The kind of control over
information enabled by copyright can also help shield privacy,
as it has done, for example, for the reclusive but litigious author
JD Salinger, who aggressively pursues other writers who encroach on his
informational and artistic domain, for example, by quoting his letters
in a biography, or more recently, writing a sequel to one of his novels. The third theme, explored in detail by
John Stuart Mill and Abraham Lincoln, is autonomy. The ability, provided by property
rights, to control resources is necessary, so the
argument goes, to enable persons to become independent
and self-directing. The fourth, emphasized by
the legal scholar Carol Rose, is that property rights facilitate
self-realization as a social being. By owning and trading things, people
help shape their social environments and establish their
places in communities. Commerce, Rose contends, is
humanizing, not dehumanizing. The fifth is perhaps the most
famous, and in current scholarship, the most influential of the variants. It contends that property rights
are crucial to self-realization as an individual, not as a social being. By owning and thus
controlling objects, a person is able to assert his or
her will, and thereby, to be recognized as a
free agent by others. Authors who, building on
the work of Hegel and Kant, explore this theme in depth, include
Margaret Jane Radin, Justin Hughes, and again, Jeremy Waldron. Here’s an illustrative
passage from Waldron’s book. “These philosophical themes
form an important part of Hegel’s conception of freedom and
of the argument for private property that he develops on that basis. Self-assertion can be understood
as a man’s assertion of himself against nature. Natural resources by
themselves are blankly material with no point
or purpose of their own. If they are to have a
point or purpose, they must be given one by being occupied
by human goals and purposes. By investing a natural
object with purpose, an individual becomes aware of the
priority of will in a world composed largely of objects that
cannot actively possess it. Thus, he ceases to regard himself
as a mere animal part of nature and begins to take seriously the
special and distinctive features of rationality, purpose, and will.” The sixth argument is
that property rights afford people security and
leisure, thereby freeing them from the mind-numbing obsession
with obtaining the means of survival and enabling them to pursue
artistic and cultural callings. Waldron and George Fitzhugh
fill out this theme. The seventh variant, explored by
the British philosopher TH Green, in addition to Mill,
emphasizes the importance to human flourishing of responsibility. Ownership and management of
property cultivates virtues like prudence and foresight, which,
in turn, are tied to full personhood. The eighth, which figures
prominently in the writings of Radin, centers on identity. Selfhood, Radin
contends, depends in part upon the ability to project a continuing
life plan into the future, which, in turn, is fostered by property rights. You can readily see how this
theme might arise with respect to artistic creations, at least
unique artistic creations. Destruction or modification
of those creations might well threaten the author’s
means of maintaining an identity, not just a reputation, but a sense of self. The ninth theme is not prominent
in contemporary scholarship, but was once very important. The central idea here
is that property rights enable owners to become
virtuous citizens, to participate in political
deliberation responsibly and selflessly. Civic virtue, in turn,
is central to personhood. This idea loomed large in the writings
of classical Republican political theorists, including
many of the people who contributed to the founding
of the United States. Finally, control over
resources, and in particular, control over one’s
own creative products, may facilitate self-expression,
which, in turn, is necessary for self-fulfillment. This idea can be found in the writing
of some philosophers, like TH Green, and also in the work of
many artists themselves. Here’s an example. Gary Larson, as many of you
know, is a famous cartoonist with a distinctive drawing style and
an irreverent, even macabre, sense of humor. The first major paper to carry
his cartoons, the Seattle Times, dropped them because some readers
denounced them as sick and offensive. Fortunately, the San Francisco
Chronicle picked up the series, and the rest is history. Despite his iconoclasm,
Larson was a strong defender of a particular conception
or kind of copyright. His stance is well
expressed in an open letter he wrote, criticizing his
fans for copying his cartoons and posting them on their home pages. “Years ago, I was having lunch one day
with a cartoonist, Richard Guindon. And the subject came
up how neither of us ever solicited or accepted
ideas from others. But until Richard summed
it up quite neatly, I never really understood my
own aversions to doing this.” Quote, “‘It’s like having someone
else write in your diary,'” end quote, “he said. And how true that
statement rang with me. In effect, we drew
cartoons that we hoped would be entertaining, or at
the very least, not boring. But regardless, they would always
come from an intensely personal, and therefore, original perspective. To attempt to be funny is a very
scary, risk-laden proposition. Ask any stand-up comic
who’s ever bombed on stage. But if there was ever an axiom
to follow in this business, it would be this– be honest to
yourself, and most important, respect your audience. So in a nutshell– probably an
unfortunate choice of words for me– I only ask that this
respect be returned. And the way for anyone to do
this is to please, please refrain from putting The Far
Side out on the internet. These cartoons are my children of sorts. And like a parent, I’m
concerned about where they go at night without telling me. And seeing them at someone’s website
is like getting the call at 2:00 in the morning that goes, ‘Uh, dad,
you’re not going to like this much, but guess where I am.'” Two aspects of this letter
bear emphasis– first, the contention that
public self-expression is very scary and risky,
and the law should help create conditions that
enable and encourage it; and second, the conception of one’s
artistic creations as one’s children. The need to control those
creations, Larson argues, is like the need to keep
track of one’s kids. When we examined Locke’s theory
of property, we saw that only some of the ways in which he
fleshed out his arguments seemed germane to intellectual property. The same is true here. In my tour of the 10 variants
of personality theory, I’ve tried to flag
those that seemed most relevant to the interests of artists. I hope, by now, it’s clear that
those are numbers 2, 5, 8, and 10. To review, maintenance of
artists’ ability to control, at least in some ways,
their creations is arguably necessary to
respect, first, their privacy; next, their capacity to achieve
individual self-realization; next, their identities; and
finally, their opportunities for self-expression. The countries where belief in these
connections had the greatest influence are located in continental Europe. Not surprisingly, those same
countries have the legal systems that are most protective of artists. More specifically, in
those countries, artists enjoy a set of entitlements,
commonly referred to as moral rights. In its full-blown version, the
concept or system of moral rights encompasses six distinct entitlements. The first is the right
of attribution, which is the right to be given credit
for things you have created and not to be given credit for
works that you did not create. The second is the right
of integrity, which is the right to prevent the destruction
or mutilation of one’s creations. This is the best known and probably
most important of the rights. It underlaid the von
Gerkan and Snow cases we discussed at the
outset of this section. The right of disclosure is the
right to decide if and when to make one’s works public. Suppose, for example, that a
painter has been commissioned to create a portrait
of a particular subject and has already been
paid the contract price. The painter paints the portrait,
but is unhappy with it. The subject demands
that it be delivered. May the painter refuse? In jurisdictions that respect the
right of disclosure, the answer is yes. The painter will have to
indemnify the person who commissioned the painting, perhaps
by returning the contract price, but does not have to turn
over the painting itself. The right of withdrawal,
rarely exercised, is the right in principle
to demand that works one has come to regret be returned. Suppose, for example, that Picasso
came to regret his Blue Period. He could demand that
their current possessors return all of those paintings. Again, an artist exercising this
right would have to indemnify, in advance, the persons obliged to
relinquish the works in question. The right against excessive criticism,
also rarely exercised, in principle enables an author or artist to recover
against a critic who abuses him or her. Finally, the droit de suite is the right
to collect a fee when one’s works are resold, for example, when the current
owner of one of your paintings resells it to another collector. Now, here’s a brief reminder of ground
we covered in the first lecture. As we discussed there,
the Berne Convention purports to require member
countries to recognize two of these moral rights–
specifically, the right of attribution and the right of integrity. But as we saw, the Berne
Convention lacks teeth. And the TRIPS Agreement,
which does have teeth, does not incorporate the provision
of the Berne Convention pertaining to moral rights. The net effect is that countries,
like the United States, that are reluctant to recognize moral
rights are, as a practical matter, free to evade their treaty obligations. Late in this lecture
series, we’ll examine what’s known as the
Visual Artists Rights Act, which is the provision
of US copyright law that implements a quite truncated
version of moral rights. For the time being, we’re concerned
not with the contours of the law, but with the theory that provides
the best support for the moral rights system. And that theory, as I’ve suggested,
is the personality theory. Scholars who follow this line
contend that intellectual products are manifestations or extensions of
the personalities of their creators. An artist defines herself
in and through her art. The artist, consequently,
is morally entitled to considerable control over her works. Why, exactly? Partly because those injuries
result in corresponding impairment of the creator’s self, and partly
because maintaining a connection to and control over her works is one of
the ways in which an artist establishes and sustains an identity. The classic version of
this argument focused on the interests and rights
of the lone artist or author. Historically, the strongest
version of personality theory was associated with
romanticism, which, as you know, celebrated solitary artistic
geniuses– the novelist or painter in the garret projecting
his or her vision onto paper or canvas. Nowadays, it is widely,
although not universally, recognized that that
conception of creativity is unrealistic or at least rare. Awareness that creativity
is more often collaborative and that many artists incorporate not
merely the ideas of their predecessors, but some of their
predecessors’ materials, has prompted some scholars, writing
in the vein of personality theory, to argue for important adjustments
to its doctrinal implications. Most importantly, if we wish to ensure
that all persons have opportunities to engage in self-fulfilling
creative activities, we may need to liberalize the rules
governing their transformative uses of already existing artistic products. When we discuss the efforts of scholars
to adapt Locke’s labor-desert theory of real property in the context
of intellectual property, I suggested that those scholars
confronted serious difficulties, arising out of the ambiguity of
key concepts in Locke’s approach. The same is true of personality theory. Listed on the map are a
few of the difficulties the scholars working this vein face. At the most primary
level, it’s not obvious whether an artist who invests
herself in a work of visual art should be able to prevent others
from imitating her creations. Some commentators, emphasizing
the self-expression inherent in the making of
the imitation, argue no. Others disagree. For obvious reasons, this goes
to the heart of copyright law. Assuming that an artist has the right
to control copying of her creations, may she alienate that right? For example, may a composer
assign to a music publisher all of her rights in her composition? As we’ll see, this is conventional
in most jurisdictions. Is it legitimate? Some scholars, purporting to draw
on the writings of Kant, argue no. Others, seeking guidance
from Hegel, argue yes. Here’s a more specific
contemporary question. In many American states, celebrities
enjoy the right to control, and therefore, the right to charge for,
commercial uses of their identities. Shown on the screen is one
of a series of advertisements that provoked a famous
application of that principle. In the late 1980s, the consumer
electronics company Samsung introduced a set of what were intended
to be humorous ads, ostensibly set into the future, each of which
juxtaposed a hypothetical news headline with the depiction
of a durable Samsung product. Here’s the one that got
Samsung into trouble. The hypothetical news story, which
appears at the top of the ad, suggested that the game
show Wheel of Fortune would still be broadcast in 2012. However, the letters
on the game board would be turned not by Vanna White,
the actress who had become famous in this role, but by a robot, which
would literally take White’s place. Shown on this slide, on the left
side is the real Vanna White, and on the right side, a blow-up
of the image of the robot that appeared in the Samsung ad. White argued plausibly that
the color of the robot’s hair, the color and style of its
dress, and above all, its pose, was intended to evoke her. She brought a lawsuit, arguing
that the advertisement constituted a commercial appropriation
of her identity. And she prevailed. The theoretical question posed by
this case and many similar cases is whether a celebrity’s persona is
a sufficiently important embodiment of personhood that it,
like a painting, should be shielded against non-permissive uses. Some scholars argue yes, indeed
regard the answer as self-evident. Others, like Michael Madow, disagree,
contending, among other things, that a celebrity’s fame typically owes
as much to the media and the audience as it does to the creative
contributions of the celebrity herself and thus should not be analogized
to works like von Gerkan’s train station or Snow’s geese. These are hard questions. As I suggested when we were discussing
the application of Locke’s argument to copyright, it’s very unlikely
that the answers to such questions can be derived from a careful
reading of the canonical texts in this theoretical tradition,
namely the writings of Kant, Hegel, and so forth. The value of personality
theory, I suggest, is not to provide us determinate
answers to modern problems, but rather to sensitize
us to and to help us reflect upon the ways in which
control over intellectual products can influence opportunities for
individual or group self-fulfillment. In that spirit, here are a few
additional ways in which personality theory has been or might
be applied to suggest ways of thinking about specific issues
that arise in contemporary copyright law. How long should a copyright last? The duration of a patent, as many of
you know, is quite short– 20 years from the date of the patent application. As we’ll see in most countries
today, copyrights last much longer– typically for the life of
the author plus 70 years. If the principal function of a
copyright is to reflect and protect an author’s personhood interests
in his or her creations, perhaps that term is too long. Perhaps it should last for no
more than the life of the author. Or more narrowly, perhaps
moral rights should expire with the death of the author. Another example– as we’ll
discuss in later lectures, many jurisdictions,
including the United States, have rules that confer upon employers
the copyrights in the works prepared by their employees. These rules are highly controversial. One ground in which they
are commonly criticized is that they fail to respect the
employee’s personhood interests in their creations. A related criticism of contemporary
copyright law that arguably is also fueled by personality theory is that
several doctrines in combination inhibit the ability of creative people
to remain economically independent and thus in control of their
creative activities and products. Copyright law, in other words, is
biased toward the interests of companies and fails adequately to support
intellectual entrepreneurs. One of the sources of that bias, so it’s
argued, is the set of procedural rules that govern copyright
lawsuits and the remedies available to successful litigants. Those rules operate, as
we’ll see, to the advantage of parties with deep pockets and
emotional fortitude, neither of which is typically true of the
kind of autonomous artists that are celebrated
by personality theory. Another example– it’s widely
thought that, in general, artists are not good at business and thus
tend to sign away their rights too quickly or for too little money. Most copyright systems contain some
rules designed to protect artists or their families against the
consequences of their folly or ignorance. Some scholars, drawing in
part on personality theory, argue that those protective
devices are insufficient and should be strengthened. Finally, as I suggested a
minute ago, some scholars contend that, if all persons are to
have opportunities for self-fulfillment analogous to those enjoyed
by a Picasso or a Wordsworth, copyright law should be amended
to increase people’s freedom to make derivative uses of
existing creative works, such as photographs, films,
and sound recordings. This might be achieved
through adjustment of one of the major defenses
to copyright infringement, namely the doctrine of fair
use or fair dealing, which will be considered in
detail late in the course. In countries like the United States that
currently provide expansive protection for moral rights, the
same adjustment might require some curtailment of
the famous right of integrity. This last possibility is perhaps the
most counterintuitive and eye-opening of the reform proposals
we’ve considered thus far. It entails invoking
personality theory to qualify one of the primary conventional
doctrinal embodiments of that same theory. By the end of this series
of lectures, I hope you are in a position to make
your own judgment concerning the persuasiveness of this proposal. So that’s it. That concludes our
examination of the first two of the four theories of
copyright, namely fairness and personality-based theories. In the next lecture, I’ll discuss the
subject matter coverage of copyright, what kinds of creations are
protectable and what kinds are not. Then, in the lecture after that,
I’ll return to copyright theory and take up what has
become the most influential of the four approaches, namely the
utilitarian-based welfare theory. This, as we’ll see, looms
even larger in policy and law than the arguments
we’ve addressed today. Thank you.

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