legal theory: philosophy

Philosophic Perspectives on Intellectual Property


The term "intellectual property" refers to a loose cluster of legal doctrines that regulate the uses of different sorts of information. The law of copyright protects "original forms of expression" -- novels, movies, musical compositions, computer software, etc. Patent law protects inventions -- machines, processes, (also) computer software, etc. Trademark law protects words and symbols that identify for consumers specific goods and services -- brands of cereal, clothing, automobiles, etc. Trade-secret law protects information that companies have tried but failed to conceal from their competitors -- soft-drink formulas, confidential marketing strategies, etc. The "right of publicity" protects celebrities' interests in their images and identities.

In recent years, a growing number of legal theorists have attempted either to make sense of this complex field or to propose ways in which it should be reformed. Most of these efforts have taken one of four forms:

The fourth of these approaches falls comfortably within the capacious family of arguments we have described as "economic analysis of law." Accordingly, it is discussed in a separate essay on "Economic Approaches to Intellectual Property." The first and second, by contrast, draw self-consciously upon well defined traditions in political and moral philosophy. Set forth below are brief discussions of their central claims and the problems their proponents have encountered. If you are curious concerning the origins of these various theories or the ways in which they have figured in recent judicial decisions, you may wish to consult the larger essay from which these materials have been adapted: "Theories of Intellectual Property." [##]

I. Exercise

Before plunging into the analysis, consider the following case. (The facts have been adapted from a real dispute -- the outcome of which we will tell you in due course.)

"In 1988, The Rock and Roll Hall of Fame Foundation registered the words, "THE ROCK AND ROLL HALL OF FAME," as its service mark, on the principal [trademark] register at the United States Patent and Trademark Office. In 1991, the Foundation commissioned I.M. Pei, a world famous architect, to design a facility for The Rock and Roll Hall of Fame and Museum in Cleveland, Ohio. Pei's design was brought to life on the edge of Lake Erie, in the form of The Rock and Roll Hall of Fame and Museum which opened in September 1995.

"The Museum states that its building design is "a unique and inherently distinctive symbol of the freedom, youthful energy, rebellion and movement of rock and roll music." Whatever its symbolism, there can be no doubt that the Museum's design is unique and distinctive. The front of the Museum is dominated by a large, reclining, triangular facade of steel and glass, while the rear of the building, which extends out over Lake Erie, is a striking combination of interconnected and unusually shaped, white buildings. On May 3, 1996, the State of Ohio approved the registration of the Museum's building design for trademark and service-mark purposes. The Museum has similar applications pending with the United States Patent and Trademark Office."

All went well for many months. The design of the building was well received, and attendance (both "actual" and "virtual") at the museum steadily increased. Popularity had a price, however. Other people began making use of the building in ways that both the Museum and I.M. Pei found offensive. Three of these "parasitic" activities were especially galling:

(a) A separate organization was interested in establishing a Rhythm & Blues Hall of Fame in Detroit. Impressed with Pei's design and unable to afford a comparable architect to create a novel design, they decided to construct a replica of The Rock and Roll Hall of Fame on the shores of Lake St. Clair.

(b) "Charles Gentile is a professional photographer whose work is marketed and distributed through Gentile Productions. In the spring of 1996, Gentile began to sell, for $ 40 to $ 50, a poster featuring a photograph of the Museum against a colorful sunset. The photograph is framed by a black border. In gold lettering in the border underneath the photograph, the words, "ROCK N' ROLL HALL OF FAME," appear above the smaller, but elongated word, "CLEVELAND." Gentile's signature appears in small blue print beneath the picture of the building. Along the right-hand side of the photograph, in very fine print, is the following explanation: "© 1996 Gentile Productions . . . Photographed by: Charles M. Gentile[;] Design: Division Street Design[;] Paper: Mead Signature Gloss Cover 80 #[;] Printing: Custom Graphics Inc.[;] Finishing: Northern Ohio Finishing, Inc." One of the reasons Gentile's posters angered the Museum is that they apparently reduced popular demand for the Museums' "Official Poster."
(c) During the same period, Acme Replicas began manufacturing plastic scale models of the building. Gifts shops in the Cleveland area purchased large quantities of the models, which they resold to tourists. The retail price of a three-inch-tall model was $10. The six-inch version sold for $25. And the "deluxe," eight-inch version (containing a music box that played the tune of Jimmy Hendrix's "Purple Haze") sold for $50.

Should either I.M. Pei or The Rock and Roll Hall of Fame be able to enjoin the activities of -- or recover damages from -- any of these three parties? You might find it useful to make a note now of your preliminary response to that question. Then, as you peruse the following materials, ask yourself how each theorist we discuss might answer the same question. At the end, we will let you know how these disputes would fare under contemporary American law.

II. Illustrations of the Philosophic Perspectives

The best way to get a feel for philosophic arguments is to see how their proponents have tried to put them to work. Once we have witnessed the theories in action, we will consider in more detail the complexities and difficulties associated with them.

A. The Significance of Labor

A fine illustration of the labor-desert theory is Robert Nozick's brief but influential discussion of patent law in Anarchy, State, and Utopia. After associating himself with Locke's argument, Nozick turns his attention to Locke's famous (and famously ambiguous) "proviso" -- the proposition that a person may legitimately acquire property rights by mixing his labor with resources held "in common" only if, after the acquisition, "there is enough and as good left in common for others."[6] Nozick contends that the correct interpretation of this limitation ("correct" in the senses (a) that it probably corresponds to Locke's original intent and (b) that, in any event, it is entailed by "an adequate theory of justice") is that the acquisition of property through labor is legitimate if and only if other persons do not suffer thereby any net harm. "Net harm" for these purposes would include such injuries as being left poorer than they would have been under a regime that did not permit the acquisition of property through labor (something Nozick concedes would be difficult to ascertain) or a meaningful constriction of the set of resources available for their use -- but would not include a diminution in their opportunities to acquire property (through labor) for themselves.

Construed in this fashion, the Lockean proviso is not violated, Nozick argues, by the assignment of a patent right to an inventor because, although other persons' access to the invention is undoubtedly limited by the issuance of the patent, the invention would not have existed at all without the efforts of the inventor -- and (although Nozick is not entirely clear on this point) the inventor would not have invented the invention and made it public had he not been lured by the prospect of a patent. Consumers, in other words, are helped, not hurt, by the grant of the patent. Nozick contends, however, that fidelity to Locke's theory would mandate two limitations on the inventor's entitlements. First, persons who subsequently invented the same device independently (i.e., without any knowledge of the first inventor's discovery) must be permitted to make and sell it; otherwise the assignment of the patent to the first inventor would leave them worse off. Second, for the same reason, patents should not last longer than, on average, it would have taken someone else to invent the same device had knowledge of the invention not disabled them from inventing it independently. (Although Nozick may not have been aware of it, implementation of the first of these limitations would require a substantial reform of current patent law -- which, unlike copyright law, does not contain a safe harbor for persons who dream up the same idea on their own.)

B. Intellectual Property and "Personhood"

The most fully developed essay in this family is Justin Hughes tightly argued study: "The Philosophy of Intellectual Property." Hughes introduces his argument as follows:

The most powerful alternative to a Lockean model of property is a personality justification. Such a justification posits that property provides a unique or especially suitable mechanism for self-actualization, for personal expression, and for dignity and recognition as an individual person. Professor Margaret Radin describes this as the "personhood perspective" and identifies as its central tenet the proposition that, "to achieve proper self-development -- to be a person -- an individual needs some control over resources in the external environment." According to this personality theory, the kind of control needed is best fulfilled by the set of rights we call property rights.

After a careful explication of Hegel's reflections on the relationship between personality and property rights in general and intellectual property in particular, Hughes considers how Hegel's argument might be brought to bear on specific features of the contemporary law of copyright, patent, and publicity rights. One of the things that makes the argument both tricky and potentially powerful, Hughes contends, is that different kinds of intellectual products seem to embody to radically varying degress the personalities of their creators. Somehow, the law ought to take those variations into account.

One of the problems with the labor theory . . . is that some intellectual products have no apparent social value or require no labor to produce, leaving these pieces of property unjustified by the labor theory. The personality justification has the same problem with those intellectual products that appear to reflect little or no personality from their creators. As with the labor theory, we can overcome this difficulty with a utilitarian principle that justifies property rights on the grounds that they protect the "net gain" of personality achieved by the entire system. This avoids the question of whether or not personality is present in every case of intellectual property. Yet the personality justification has this same "coverage" problem at a "categorical" level. With a controversial exception mentioned below, there seem to be no categories of intellectual property that are especially more or less hospitable to the labor theory. This is not true with the personality justification. Some categories of intellectual property seem to be receptacles for personality; others seem as if they do not manifest any "personality" of their creators.
Poems, stories, novels, and musical works are clearly receptacles for personality. The same can be said for sculpture, paintings, and prints. Justice Holmes aptly characterized such works as "the personal reaction of an individual upon nature." Another receptacle for personality is the legal concept of an individual's "persona." The "persona" is an individual's public image, including his physical features, mannerisms, and history. In the U.S., it is debated whether or not the personal should be considered intellectual property at all. The answer to this question may turn on what justification we use for intellectual property.
The persona is the one type of potential intellectual property which is generally thought of as not being a result of labor. Even if the persona is considered to be a product of labor, people would work on their personas without any property rights being necessary to motivate them. Therefore, the instrumental labor justification is not necessary. In contrast, the persona is the ideal property for the personality justification. No intermediary concepts such as "expression" or "manifestation" are needed: the persona is the reaction of society and a personality. Property rights in the persona give the individual the economic value derived most directly from one's personality. As long as an individual identifies with his personal image, he will have a personality stake in that image.
The problems for the personality justification do not arise in justifying these obvious expressions or manifestations of personality, but with those kinds of intellectual property that do not seem to be the personal reaction of an individual upon nature. Even in the field of copyright these problems arise. While most of the personality-laden categories are protected by copyrights, copyrights protect more than just personality-rich objects. Atlases and maps are a good example. In the early days of oceanic explorations, mapmakers competed with one another on their claims of accuracy. Today, the same competition does not arise because the generic information is already there in the form of old maps and publicly held government materials. The result is that maps have a tremendous uniformity. There may be personality galore in a map of Tolkien's Middle Earth, but not much in a roadmap of Ohio. That does not mean maps are absolutely devoid of personality. Certainly a new form of map manifests personal creativity, as in the case of Peter Arno's revisions of the Mercator projections. Even in everyday maps, there can be artistic content or social commentary in the choices of color, identifying symbols, and information included.
More difficult problems for the personality justification are posed by copyrightable computer software and other technological categories of intellectual property: patents, microchip masks, and engineering trade secrets. These items usually embody strongly utilitarian solutions to very specific needs. We tend not to think of them as manifesting the personality of an individual, but rather as manifesting a raw, almost generic insight. In inventing the light bulb, Edison searched for the filament material that would burn the longest, not a filament that would reflect his personality. Marconi chose to use a particular wavelength for his radio because that wavelength could travel much farther than waves slightly longer, not because that wavelength was his preferred form of expression.
In a report related to the recently enacted microchip mask protection law, the House Judiciary Committee discussed attempts by some microchip inventors to protect chip designs by copyrighting photographs of the chips' layout as artistic designs. This clear attempt to use a system designed to protect personality-rich art for the protection of engineering designs exudes irony. The House Committee concluded, as most of us do, that engineering designs are characterless and without personality. As congressmen or consumers, we generally think that state of the art is not art.
Yet technology may not be categorically different from atlases and maps. The primary goal of computer programs is to produce a particular result using as little software and hardware as possible. But writing programs, like creating logical proofs, can involve a certain aesthetic vision. Within the constraints of efficiency, it is frequently possible to write a program a number of ways -- some simpler, some more byzantine; each depicts a particular style for resolving the problem. If there are ten ways to write a program of roughly the same efficiency, it seems perfectly reasonable to think that the choice among the ten may demonstrate personality.
It is an oversimplification to think that some genres of intellectual property cannot carry personality. This oversimplification avoids the true issue of the constraints of economy, efficiency, and physical environment which limit the range of personal expression. Such constraints exist to some degree in every genre. Few movies or plays can afford to ignore the average attention span of audiences or the limits of a budget; the artist in the plastic arts is constrained by the physical properties of the materials; the architect faces these material constraints with the additional limits of plot size, location, and zoning regulations. The computer programmer and the cartographer are further along the spectrum of constraint, but even they can embellish their works to suit at least some of their own predilections. The genetic researcher or the aerospace engineer are even more constrained; their slightest embellishments may be dangerous indeed.
The more a creative process is subject to external constraints, the less apparent personality is in the creation. At some point, these constraints on a particular form of intellectual property may be too great to permit meaningful expressions of personality. We may determine that the personality justification should apply only to some genres of intellectual property or that the personality generally present in a particular genre warrants only limited protection.
In the ideal situation, before we made such a determination we would ask the creator what personality she sees in her creation. As mere consumers we may think a genre of intellectual property too constrained to permit expressions of personality, while the majority of creators in that genre may think that their works do express personality. Subtle manifestations of personality may be visible only to people knowledgeable in that field. n230 Just as chess players can recognize particular moves as reflecting the personality of certain players, particular moves in a computer program or a chemical process may be characteristic of a particular inventor or group.
This subjective inquiry approaches personality stake as being a question of whether or not there is personality in the object. In other words, does the object show others an aspect of the creator's self? This aspect of the personality-property connection focuses on the expression of the creator's will through the medium of her creation. The creation itself is merely a conduit for the expression of personality. Another type of personality stake may exist, however.
A person may claim property so that others will identify him with the property. In this case, the creator claims his property in order to create (rather than express) a particular persona. This "externalization" accords with Hegel's theory. Hegel argues that recognizing an individual's property rights is an act of recognizing the individual as a person. That same reasoning applies to the externalization connection: if X owns a patent, people will recognize him as a particular person -- the inventor of a unique innovation.
There is a problem, however, with founding intellectual property rights upon such externalization. X can't just say "I want people to identify me with the World Trade Center" and expect this to justify his property claim to it. The individual must have some internal connection to the claimed property. This connection need not be that the object "expresses" the owner's personality. It may be simply that the owner identifies himself with the object. With inventions, the object may precede the personality stake, but with time the scientist or engineer comes to identify himself with his scientific or technological advances. Doppler became identified with certain principles of sound, Edison with the light bulb and gramophone, Bell with his telephone. The personality inquiry cannot just examine the object. The relationship between object and creator is where personality is visible.

Finally, Hughes turns his attention to the notoriously difficult topic of freedom of alienation. How many of the rights enjoyed by the creator of an intellectual artifact should he or she be allowed to give or sell to others? Margaret Radin has devoted an entire book to this topic. Hughes again relies on Hegel for a qualified guideline: Authors and inventors should be permitted to alienate copies of their works (thereby enabling them to earn respect, honor, admiration, and money from the public) but should not be permitted to surrender certain of their entitlements to their creations (most importantly, their right to prevent others from mutilating or misattributing their works).

III. Complexities and Problems

The foregoing accounts, we hope, are provocative and suggestive. Before you lean heavily on them, however, you must in some way come to terms with various objections that have been -- or could be -- deployed against each. We present them here, not for the purpose for discouraging you from seeking guidance from analyses of these sorts, but rather in hopes of prompting you to take the philosophic enterprise seriously.

A. Labor-Desert Theory

The most serious of the difficulties that confront devotees of Locke's argument is that it is not altogether clear that the argument supports any sort of intellectual-property law. The source of the problem is ambiguity in Locke's original rationale for property rights. Why exactly should labor upon a resource held "in common" entitle the laborer to a property right in the resource itself? Scattered in Chapter 5 of Locke's The Second Treatise can be found six related but distinguishable answers to that question.

  1. "Natural reason" tells us that men have "a right to their Preservation," and the only practicable way in which they can sustain themselves is by individually "appropriating" materials necessary to provide them food and shelter.
  2. Religious obligation reinforces the foregoing proposition. God did not merely give the Earth to man in common, but "commanded" him to "subdue" it -- i.e., "improve it for the benefit of Life" -- which man can do only by both laboring upon it and appropriating the fruits of that labor.
  3. Intuitions regarding self-ownership point in the same direction. Each person plainly has "a Property in his own Person," including the "Labour of his Body, and the Work of his Hands." It seems only natural that whatever he mixes that Labour with should belong to him as well.
  4. The moral value of work reinforces the foregoing insight. God gave the World to "the Industrious and Rational, … not to the Fancy or Covetousness of the Quarrelsom and Contentious." It is thus fitting that the former acquire, through their labour, title to that which they labor upon.
  5. A sense of proportionality and fairness also figures in the inquiry. Most of the value of things useful to men derives not from the value of the raw materials from which they are made, but from the labour expended on them. It is thus not "so Strange" that, when determining whether ownership should be assigned to the worker or the community, the individual "Property of labour should be able to over-balance the Community of Land."
  6. Finally, Locke relies throughout the chapter on an imagery of productive transformation. By labouring upon unclaimed land or other resources, the worker changes them from wild to domestic, from raw to cultivated, from chaotic to ordered, from pointless to purposeful. The self-evident desirability of that transformation supports a reward for the worker.

Whether Locke's theory provides support for intellectual property depends upon which of these various rationales one regards as primary. If, for example, one sees arguments 4 and 5 as the crux of the matter, then The Second Treatise would seem to provide strong support for most sorts of intellectual property. After all, most authors and inventors work hard, and their intellectual labor typically is a far more important contributor to the total value of their creations than the raw materials they have employed. On the other hand, if arguments 1 and 2 are stressed, the case for intellectual-property rights is far weaker. As Seanna Shiffrin has shown, crucial to those two arguments is the proposition that certain articles essential to life (such as food) cannot be enjoyed in common; "their use must, of necessity, be exclusive." But intellectual products plainly are not like that. Not only is access to them typically not necessary for survival, but they can be used by an infinite number of persons, simultaneously or in sequence, without being used up.

Whether Locke's theory provides support for any intellectual-property rights is thus indeterminate. It depends on which aspects of Locke's original theory is dominant. Locke did not say, and we have no way of knowing. Assume, however, that we somehow surmount barricade identified by Shiffrin and conclude that intellectual labor does give rise to a natural entitlement to its fruits -- an entitlement that the state must recognize and enforce. Other difficulties await us.

Perhaps the most formidable is the question: What, for these purposes, counts as "intellectual labor"? There are at least four plausible candidates:

  1. time and effort (hours spent in front of the computer or in the lab);
  2. activity in which one would rather not engage (hours spent in the studio when one would rather be sailing);
  3. activity that results in social benefits (work on socially valuable inventions);
  4. creative activity (the production of new ideas).

The first of the four is probably closest to Locke's original intent, but he was not focusing on intellectual labor. Justin Hughes has shown that serious arguments can be made in support of the both the second and the third. And Gary Becker reminds us how important the fourth is to our images of deserving authors and inventors. No grounds on which we might select one or another are readily apparent.

Unfortunately, our choice among these four options will often make a big difference. The third, for instance, suggests that we should insist before issuing a patent or other intellectual-property right, that the discovery in question satisfy a meaningful "utility" requirement; the other three would not. The second would counsel against conferring legal rights on artists who love their work; the other three point in the opposite direction. The fourth would suggest that we add to copyright law a requirement analogous to the patent doctrine of "nonobviousness"; the others would not. In short, a lawmaker's inability to choose among the four thus will often be disabling.

Similar troubles arise when one tries to apply Locke's conception of "the commons" to the field of intellectual property. What exactly are the raw materials, owned by the community as a whole, with which individual workers mix their labor in order to produce intellectual products? At least seven possibilities come to mind:

(a) the universe of "facts";
(b) languages -- the vocabularies and grammars we use to communicate and from which we fashion novel intellectual products;
(c) our cultural heritage -- the set of artifacts (novels, paintings, musical compositions, movies, etc.) that we "share" and that gives our culture meaning and coherence;
(d) the set of ideas currently known to someone but not owned by anyone;
(e) the set of ideas currently known to someone;
(f) the set of all "reachable" ideas -- i.e., all ideas that lie within the grasp of people today;
(g) the set of all "possible ideas" -- i.e., all ideas that someone might think of.

When applying the Lockean argument to intellectual property, it will often make a difference which of these options one selects. For example, option (c) is difficult to reconcile with contemporary copyright and trademark law, under which much of our cultural heritage (Mickey Mouse; "Gone with the Wind"; the shape of a Coke bottle) is owned, not by the community, but by individual persons or organizations; options (a) and (b) present no such difficulty. Patent law is consistent with option (d) but not (e) -- insofar as it permits ownership of many extant "ideas"; copyright law, which (at least formally) does not allow the ownership of any "ideas" (only distinctive ways of "expressing" them) meshes comfortably with either. As Justin Hughes has shown, the Lockean "sufficiency" proviso can be satisfied fairly easily if one chooses option (f) -- on the theory that the deployment of most ideas enable other people to "reach" an even larger set of ideas and thus enlarges rather than subtracts from the commons. By contrast, if one adopts option (g) -- as both Wendy Gordon and Robert Nozick appear to do -- the sufficiency proviso becomes a good deal more constraining (a topic to which we will return in a minute). Which is the correct approach? Who knows?

Suppose we arbitrarily select one interpretation -- say, option (d). Trying to fit it into the Lockean analytic quickly gives rise to three additional, related problems. First, the act of mixing labor with a piece of the commons does not, under any of the various extant intellectual-property regimes, work the way Locke supposed real-property law works. When one mixes one's physical labor with a plot of virgin land, one should acquire, Locke suggested, a natural right not merely to the wheat one produces but to the land itself. By contrast, when one mixes one's intellectual labor with an existing idea, one acquires a property right only to the "original" or "novel" material one has generated, not to the idea with which one began. Second, the set of entitlements one acquires do not have the kind of exclusivity Locke apparently attributed to real-property rights. For example, the issuance of a patent on a better mousetrap prevents others from making that mousetrap, but not from reading the patent and using the information contained therein to make a even better ("nonequivalent") mousetrap. The issuance of a copyright on a novel prevents others from copying it but not from reading it, discussing it, parodying it, etc. (Closely examined, real-property rights also lack the exclusivity Locke attributed to them, but the difficulty is more apparent in the case of property in ideas.) Finally, Locke suggested that the property rights one acquires through labor upon resources held in common do and should last forever -- i.e., are alienable, devisable, and inheritable indefinitely. Most intellectual-property rights, by contrast, sooner or later expire.

One might respond: but none of these observations indicate that the application of labor-desert theory to intellectual property is indeterminate; they indicate merely that intellectual-property law would have to be radically revised to conform to the Lockean scheme. Perhaps. But the scale of the necessary revision is daunting. Is it plausible -- on Lockean or any other premises -- that by working to express in distinctive form the idea that infidelity usually corrodes a marriage, one would acquire ownership of the idea itself? Is it plausible that, by registering the trademark "Nike," one could prevent others from using it in any way (including reproducing it in an essay on intellectual property)? If not, then what set of more limited entitlements would satisfy the obligation of the state to "determine" and "settle" natural property rights? Locke's argument contains few clues.

We have not exhausted, unfortunately, the difficulties associated with the "sufficiency" proviso. Some of the commentators who have sought to harness Locke's argument to intellectual property have seen little difficulty in the requirement that a laborer leave "as much and as good" for others. Justin Hughes, for example, emphasizes the myriad ways in which the expansion of the set of available ideas stimulated by intellectual property improves the lot of everyone -- either immediately or soon. Robert Nozick, as suggested above, sees the sufficiency proviso as somewhat more constraining, but has identified to his satisfaction a way of structuring patent law that avoids violating it. Wendy Gordon, by contrast, construes the proviso as a much more serious limitation on the scope of intellectual-property rights. Conferring monopoly privileges on the creators of intellectual products, she claims, can hurt more than help the public. Take the word "Olympics," for example. If the term did not exist, we would have contrived other ways to communicate the notion of periodic amateur international sports competitions untainted by ideology or warfare. But because the word does exist, we have become dependent on it. No other word -- or collection of words -- quite captures the idea. Consequently, if we now prohibit "unauthorized" uses of the word -- e.g., in connection with the "Gay Olympics" or on a T-shirt highlighting the hypocritical way in which the ideal has been applied in recent years -- we have left the public worse off than if the word never existed. Fidelity to the Lockean proviso (and to a more general "no-harm" principle that runs through Locke's work), Gordon insists, requires that we withhold property rights in situations such as these. Once again, a wide range of interpretations of an important component of Locke's theory are available, and no one member of the set seems plainly superior to the others.

We come, finally, to the well-known problem of proportionality. Nozick asks: if I pour my can of tomato juice into the ocean, do I own the ocean? Analogous questions abound in the field of intellectual property. If I invent a drug that prevents impotence, do I deserve to collect (for 20 years) the extraordinary amount of money that men throughout the world would pay for access to the drug? If I write a novel about a war between two space empires, may I legitimately demand compensation from people who wish to prepare motion-picture adaptations, write sequels, manufacture dolls based on my characters, or produce T-shirts emblazoned with bits of my dialogue? How far, in short, do my rights go? Locke give us little guidance.

B. Personality Theory

Private property rights, argue personality theorists, should be recognized when (and only when) they would promote human flourishing by protecting or fostering fundamental human needs or interests. The first step in the application of this perspective to intellectual property is identification of the specific needs or interests one wishes to promote. As Jeremy Waldron has argued, a wide variety of interests might be deemed fundamental, each of which arguably could be advanced by a system of property rights:

  1. Peace of Mind. An exclusive right to determine how certain resources shall be used might be thought essential to avoid moral exhaustion -- the sense of guilt that arises from awareness that one's actions, one's use of the commons, disadvantages countless other people.
  2. Privacy. Property rights may be necessary to provide persons "refuge[s] from the general society of mankind" -- places where they can either be alone or enjoy intimacy with others.
  3. Self-Reliance. An exclusive right to control certain resources may be thought necessary to enable persons to become independent, self-directing.
  4. Self-Realization as a Social Being. The freedom to own and thus trade things may be necessary to enable persons to help shape their social environments and establish their places in communities.
  5. Self-Realization as an Individual. Ownership of property may be necessary to enable a person to assert his or her will and to be recognized as a free agent by others.
  6. Security and leisure. Control over a certain amount of resources may be necessary to free a person from obsession with obtaining the means of survival, the "impulsion of desire," and thus to enable them to attend to higher pursuits.
  7. Responsibility. Virtues like "prudence," self-direction, and foresight may be cultivated by the opportunity and obligation to manage one's own resources.
  8. Identity. Selfhood may be thought to depend upon the ability to project a continuing life plan into the future, which is turn is fostered by connection to and responsibility for property.
  9. Citizenship. Ownership of a certain amount of resources might be thought necessary to put a person in an economic and psychological position to participate effectively in the polity.
  10. Benevolence. Property rights may be thought essential to enable a person to express ideas of what is beautiful or to enact benevolent wishes.

Six of these ten arguments -- 1, 3, 4, 6, 7, 9 -- provide, at most, weak support for a system of intellectual-property rights. To the extent that intellectual-property rights have economic value and may be bought and sold, gained and lost, they may contribute to their owners' abilities to avoid guilt, become autonomous, engage in independent political action, etc. But those values could be promoted equally well by providing persons property interests in land or shares in private corporations. Nothing turns on the fact that the entitlements pertain to intellectual products.

Personhood-based justifications for intellectual-property rights thus must be found, if anywhere, in some combination of themes 2, 5, 8, and 10: the interests of privacy; individual self-realization; identity; and benevolence. But the writers who have sought to extract from those sources answers to specific questions have come to widely divergent conclusions. Some examples:

When an author has revealed her work to the world, does it nevertheless continue to fall within the zone of her "personhood" -- so that she may legitimately claim a right to restrict its further communication? Neil Netanel, relying on an exploration of the ideal of "autonomy," thinks yes. Lloyd Weinreb, reasoning that, "once the individual has communicated her expression publicly, it takes on a 'life of its own' and . . . its further communication does not involve her autonomous self," thinks no.

Assume the answer is to the previous question is yes. May the author alienate his right to control the copying of his work? Kant, reasoning that "an author's interest in deciding how and when to speak [is] an inalienable part of his personality," thought no; Hegel, reasoning that expressions of mental aptitudes (as opposed to the aptitudes themselves) were "external to the author and therefore freely alienable," thought yes.

Should an artist's investment of his self in a work of visual art (say, a painting or sculpture) prevent others from imitating his creation? Hegel thought no -- on the ground that the copy would be "essentially a product of the copyist's own mental and technical ability." Justin Hughes seems to take the opposite position.

Is the protection of trade secrets necessary to protect privacy interests? Edwin Hettinger thinks no -- on the ground that most trade secrets are owned by corporations, which do not have the "personal features privacy is intended to protect"; Lynn Sharp Paine, disagrees, arguing that the right to privacy includes the freedom to reveal information to a limited circle of friends or associates without fear that it will be exposed to the world -- a freedom that trade-secret law shields.

Is a celebrity's persona a sufficiently important repository of selfhood that other persons ought not be permitted to exploit that persona commercially without permission? Justin Hughes suggests yes, reasoning that "[a]s long as an individual identifies with his personal image, he will have a personality stake in that image." Michael Madow, insisting that the "creative (and autonomous) role of the media and the audience in the meaning-making process" are at least as important as the "personality" of the celebrity, sharply disagrees.

Two related problems underlie these and many other disagreements among personality theorists. First, the conception of the self -- the image of "personhood" that, through adjustments of intellectual-property doctrine, we are trying to nurture or protect -- is too abstract and thin to provide answers to many specific questions. Either a more fully articulated vision of human nature (that would forthrightly address such grand questions as the importance of creativity to the soul) or a conception of personhood tied more tightly to a particular culture and time seem necessary if we are to provide lawmakers guidance on the kinds of issue that beset them.

Second, no personality theorist has yet dealt adequately with what Margaret Radin calls the problem of fetishism. Which of the many tastes exhibited by current members of American culture should be indulged, and which should not? The quest for individuality? Nationalism? Nostalgia for a real or imagined ethnic or racial identity? The hope that audiences will treat one's creations with respect? The hunger for fifteen minutes (or more) of fame? Yearnings or orientations of all of these sorts are implicated by intellectual-property disputes. Deciding which merit our deference is essential to determining how those disputes should be resolved.

IV. The Exercise

Return, now, to the case of The Rock and Roll Hall of Fame -- with which we began. Have your views on who should prevail in each of the three related disputes been altered at all by the foregoing discussion?

Here is how current American law would handle each dispute:

(a) The construction of a Rhythm & Blues Hall of Fame identical in shape to The Rock and Roll Hall of Fame would violate the copyright in the original building. (The question of who owns that copyright -- the architect or the museum -- would turn in part on the content of the contract under which the architectural work was done.) Before 1990, architectural works were not shielded by copyright law. Architectural plans were protected, but only in the narrow sense that they could not be copied without permission. If a builder lawfully obtained a set of blueprints for a building (or determined how to build it without blueprints), he was free to build an identical structure. A 1990 federal statute (prodded by the American ratification of the Berne Convention) extended copyright protection to "the design of a building as embodied in any tangible medium of expression" and made clear that the building itself constituted such a "medium of expression." The upshot is that, as long as a building contains original design elements that are not functionally required, its "overall shape" may not be imitated without permission. Admirers may photograph, draw, or paint the building (as long as it is "visible from a public place") but cannot build an identical structure or even (it seems) a scale model of it.

(b) The dispute between the Museum and Gentile is real. The Museum did not (and could not) rely upon copyright law, because section 120 of the statute mentioned in section (a), above, excuses "the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place." Trademark law, however, provided an alternative line of attack. The District Court found the Museum's claim persuasive and granted a preliminary injunction against continued sales of Gentile's poster, reasoning that the building design functioned as an indicator of the Musuem's product (i.e., as a trademark) and that Gentile's poster was crafted in way that would likely (i) mislead consumers into thinking that it was either produced or sponsored by the Museum or (ii) "dilute" the power of the Musuem's mark. A divided panel of the Sixth Circuit reversed. The opinion of the court [from which the quotations in the original "exercise" were taken] -- including the dissenting opinion of Chief Judge Martin -- are well worth reading. (The case is not over yet, and many organizations are watching closely its evolution.)

(c) The outcome of the dispute between the Museum and Acme is harder to predict. It is not clear, to begin with, that the safe haven for pictures, paintings, photographs, or other pictorial representations of the work, mentioned in section (b), above, would extend to three-dimensional models. If not, then Acme would be in trouble on copyright grounds. In addition, the Museum might well have a stronger trademark claim against Acme than against Gentile. That seems to be the view of the New York Stock Exchange, which (as Felix Kent explains) recently brought a trademark case against "the New York, New York Hotel and Casino (of Las Vegas) for building a one-third scale model of the Exchange's facade on the gambling floor."

The hotel and casino is a melange of copies of famous buildings in New York, capped by a copy of the Statue of Liberty that makes her look like a showgirl. The NYSE complains that, among other things, the public will be deceived and confused as to source, that the building constitutes a false designation and that the NYSE's trademarks will be tarnished."

The case -- New York Stock Exchange v. New York, New York Hotel and Casino No. 97 Civ. 2857, SDNY, filed April 21, 1997) -- has not yet been resolved.