II. Personhood Interests from Creativity, Originality, and Personal Expression
In her classic analysis of "personhood" in property, Margaret Jane Radin drew upon familiar material objects - a wedding ring, a portrait, a family home. When Radin describes how these objects become "bound up with personhood," n14 we intuitively understand [*86] what she means. The individual probably had no role in the material object's design or creation; most of us neither designed nor constructed the houses, furniture, and clothes we live with. Nonetheless, we come to identify with these objects and they come to be imbued with our "personhood."
With a wedding ring, an individual's personality seems to move into an existing object. Years ago, a husband and wife could have chosen a completely different set of rings but now the rings have great sentimental significance. In fact, our "personhood" may often be wrapped up in external objects we consider imperfect, inconvenient, or even ugly. The table inherited from Aunt May has an honored place in the home not because it is pretty, but because it is imbued with family history. n15 The same kind of identification can happen with intellectual property: a poem learned while young can become particularly important to the individual, a piece of music first heard on an important occasion can become imbued with personal meaning.
Professor Radin gave us examples of situations where "commodification," treating a physical res as fungible property, disrupts a personhood interest. For instance, a tenant may lose an apartment for market reasons - like increasing rent or a decision to redevelop the property - even though that tenant has greater personal identification with the apartment than the landlord. However, commodification of intellectual property does not engender the same disruptive separation of person from (personhood embodying) res. Intellectual creations are "public goods" in the economic sense. n16 They are "non-excludable" n17 in that once one has had some access to the intellectual property res, one can [*87] not be completely separated from it. If a person were deprived of all his music and books, he would have a great sense of personal loss, but yet would still know Satie's "Gymnopedies" by heart, would still remember much of Faulkner, and could still go to the library to read or listen to these favorites. n18
Of course, commodification of intellectual property may, as with commodification of physical property, systemically prevent prospective personhood interests from developing. When Mr.Potter's ownership of all the buildings in town prevents Emily & Geoff from buying an affordable house in Pottersville, prospective personhood interests are frustrated. Similarly, when the high royalties demanded by authors keeps Curt from buying books (and curtails the library's acquisitions), Curt's prospective personhood interests are frustrated. He cannot identify with a book to which he is denied access.
So far this has been a discussion of personhood interests commonly linked to sentimental attachment or opportunity for personal growth. Intellectual property also brings to mind an intuitively different set of personhood interests. When we first encounter a res of intellectual property, instead of noting that an individual's personality has moved into an existing object, we may note that an individual's personality caused the object to come into existence. The object comes into the world already an embodiment or reflection of some particular individual. n19 So Delacroix called paintings "a bridge linking the painter's mind with that of the viewer," Solzhenitsyn said that literature "transmits incontrovertible condensed experience," and Thomas Jefferson called in- [*88] ventions "the fugitive fermentation of an individual brain." n20 Armed with this belief about the nexus between the individual person and the intellectual product, we believe that rights to these intellectual products are desirable because "they strengthen our sense of individuality." n21
But what does this have to do with our individuality? What is at stake? For example, "creativity" is a characteristic we cultivate in our children, linking it intimately with their development as autonomous individuals. We look at nearly indistinguishable finger paintings, praise them as original, make posters of them, and imagine that one of these children will be a new Pollock. Throughout our culture, we link, if not blur, our notions of creativity, originality, and personal expression. This linkage occurs whether we are turning our attention to kindergarten finger-painting or Carnegie Hall performances; whether our critical faculty is focused on intensely original work - like Picasso's Les Desmoiselles d'Avignon when it was first viewed n22 - or on works whose subtle variations are appreciated only by a few. In some situations, a work's origin may cry out to the whole world. It does not take much familiarity with modern painting to recognize most of Picasso's work as Picasso or most of Miro's work as Miro. However, the identification of some specific work with some specific individual occurs with subtler expression, similar to a particular defensive play in a chess tournament, a solution to a computer programming problem, the juxtaposition of a certain painting with another at an exhibition, a particular style of lighting scenes in a film, n23 or even the layout of sand traps and [*89] greens on a golf course. n24 A few years ago, a foreign affairs article appeared in a scholarly journal attributed to "Z". The speculation about the author included numerous people claiming it read like Ambassador JeanJ. Kirkpatrick or Zbigniew Braezinski. n25 In these latter, subtle cases, we may search for some new terminology like "critical judgment" or "intellectual insight." However, it is hard to deny that some sense of personal style is what lurks behind the terminology and, in turn, that this notion of "style" is some alloy of creativity and personal expression. n26
So it should be no surprise that the three ideas - creativity, originality, and personal expression - are so thoroughly alloyed in American case law that there may be no principled way to disentangle them, despite efforts by some courts and commentators to keep originality and creativity conceptually asunder. In the 1991 Feist decision, n27 the U.S. Supreme Court made it clear that "originality" as used in copyright law should be defined, in part, by means of creativity:
Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low, evena slight amount will suffice. n28
This "linkage" of creative-original-personal expression produces a complex or "multivalent" concept of creativity. One question is whether this linkage is inevitable or merely the result of historical accident; if the law developed at a time when these notions were culturally linked, although the cultural linkage might break down [*90] over time, the conceptual linkage in jurisprudence might continue.
This is the spirit of the deconstructionist's observations about the
single "author" and the immutable "text." The deconstructionists reason
that the solitary author-genius is a creation of Romanticism that became
embedded in American jurisprudence in the nineteenth century. Now, the
argument continues, in a world of high technology and collaborative creative
work, this construct needs to be replaced. There is much that is interesting,
but also much that is dissatisfying about these deconstructionist observations.
Assuming the "author" reflects the creative process of another time, the
deconstructionists give us little real evidence of how our creative process
is different. The evidence the deconstructionists do marshal is as much
evidence of a benign, complex notion of creativity as it is evidence that
the "author" lurks beneath intellectual property decisions. Instead of
being a historical accident, there is good reason to think that the linkage
between creativity, originality, and personal expression is both historically
rooted and, at a deeper level, inevitable. That linkage, in turn, raises
the issue of what I will tentatively call the "moral shop right."
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n14. Radin, supra note 1, at 959.
n15. Another possibility in the case of existing objects
is that the personality does not "move into" the object so much as
the object "moves into" the personality. Consider some of Milan Kundera's thoughts on personal development:
There are two methods of cultivating the uniqueness of the self: the method of addition and the method of subtraction. [One character] subtracts from herself everything that is exterior and borrowed ... [another character], she keeps adding to it more and more attributes and she attempts to identify herself with them .... This method of addition is quite charming if it involves adding to the self such things as a cat, a dog, roast pork, love of the sea or of cold showers. But the matter becomes less idyllic if a person decides to add love for communism, for the homeland, for Mussolini, for Catholicism or atheism, for fascism or antifascism.
Milan Kundera, Immortality 100-01 (Peter Kussi trans., 1991).
n16. A "public good" is a good for which "it is possible at no cost for additional persons to enjoy the same unit." Harold Demsetz, The Private Production of Public Goods, 13 J.L. & Econ. 293, 295 (1970). Put another way, the public good is subject to "non-rivalrous consumption." Stephen L. Carter, Owning What Doesn't Exist, 13 Harv. J. L. & Pub. Pol'y 99, 102 (1990). The sweep of a lighthouse beam is a public good that can be enjoyed by any and all ships along the coast; a clock atop city hall offers a public good - accurate information on the time - to all who pass nearby. The subjects of intellectual property are the prototypical public good; indeed, the lighthouse and the city hall clock are not far from intellectual property since the commonly shared public good is information.
n17. Carter, supra note 16, at 102.
n18. A distinction should be clear here: the difference between the intellectual property res and the particular, physical manifestation of that res. The copy of Lady Chatterly's Lover on my shelf belonged to my grandmother; it is that copy, not the novel, which has personal significance for me. Personhood interests in a physical object, whether a book or a wedding ring, were the subject of Radin's initial inquiries. While the intellectual propertyres is distinct from the object, it is also true that access to a poem, symphony, or fictional story is made much easier by owning physical objects. On that account, it might be noted, for example, that the bankruptcy laws of most states allow a bankrupt person to retain their home (often the greatest repository of personhood interests) and a dollar amount of personal effects; within that amount, the individual can choose the optimal personhood-preserving mix of family heirlooms, library, etc.
n19. Many physical objects also come into the world imbued with someone's personality, like a hand-built cabin or a hand-made Christmas wreath. But if we continue this line of thinking, the distinction between material property and intellectual property starts to blur because the material objects that most obviously come into the world imbued with personhood interests are also more likely to be objects of intellectual property laws, i.e., paintings or art pottery.
n20. Letter from Thomas Jefferson to Isaac McPherson, in The Writings of Thomas Jefferson 333 (Saul K. Padover ed., 1967). See also, William Kingston, Innovation, Creativity, and Law 89 (1990) ("Legal protection of disembodied information thenceforward reflected the view that the work of writers and inventors is an extension of their personalities, and consequently in some sense, 'theirs.'"); JohnH. Merryman& AlbertE. Elsen, Law, Ethics, and the Visual Arts 145 (2d ed. 1987) ("The primary justification for the protection of moral rights is the idea that the work of art is the extension of the artist's personality, an expression of his most innermost being. To mistreat the work of art is to mistreat the artist ... to impair his personality.").
n21. Lynn S. Paine, Trade Secrets and the Justification of Intellectual Property: A Comment on Hettinger, 20 Phila. & Pub. Aff. 247, 252 (1991).
n22. Discussing this painting one commentator said, "the consequences of one individual act of perception were and remain incalculable .... This individual act of perception is recorded in a painting by Picasso, now called Les Demoiselles d'Avignon." Herbert Read, A Concise History of Modern Painting 67 (1974). The painting was "recognized instantly" as a "summit of achievement." Pierre Daix, Picasso Life and Art 65-78 (Olivia Emmett trans., Harper Collins 1993).
n23. In discussing the development of a few leading cinematographers from the Hollywood studio system of the 1930s, John Bailey said: "Coming out of that [studio system were] some really stellar people ... who had such strength and such individual voice that they kind of transcended whatever studio they happened to be working for. Today you can look back and very easily recognize their films from the look irrespective of the director." Visions of Light (Arnold Glassman, director, 1994).
n24. For example, the Southern California courses designed by George C. Thomas (including the Riviera Country Club) show his particular style of fairway and green architecture. Steve Springer, The L.A. Open Not The Retiring Kind: George Clifford Thomas Jr. Thought He Was Through Designing Golf Courses Before the L.A. Athletic Club Persuaded Him to Build Riviera in Santa Monica Canyon, L.A. Times, Feb. 22, 1993, at 3.
n25. Z, To the Stalin Mausoleum, 119Daedalus, Winter 1990, at 295. See also David Warsh, Was It Daedalus or Icarus? Mystery Essay May Prove to be a Jape Gone Awry; The "Z" Affair, Boston Globe, Feb.18, 1990, at A25; The Mysterious Mr.-or Ms.- Z, Time, Jan. 15, 1990, at 33 (speculating on author's identity because of stilted prose).
n26. This remains true whether one adopts a "modern" or "post-modern" view of personality. For an interesting discussion of this problem with photographic images, see Jeffrey Malkan, Stolen Photographs: Personality, Publicity, and Privacy, 75 Tex. L. Rev. 779 (1997). Malkan observes that "style" is a matter of what's "on the inside" and quotes Cocteau's observation that "decorative style has never existed.... Style is the soul ... ." Id. at 833.
n27. Feist Publications, Inc. v. Rural Tel. Serv. Co.,499 U.S. 340 (1991).
n28. Id. at 345. In the statutory grant that "copyright
protection subsists ... in original works of authorship," 17 U.S.C. 102(a)
(1988 & Supp. IV 1992), "original" is interpreted as having "originality"
or meeting the "requirement of originality...." See Key Publications v.
Chinatown Today Publications, 945 F.2d 509, 512 (1991).