millions of dollars in research and development without the carrot of a twenty-year patent monopoly 36 2. Economic Incentive/Efficiency rationales Economic incentive rationales have unquestionably become the dominant paradigm used to justify protection for all forms of IPR's in modern times.37As commentators have noted, [ Judicial, legislative and academic authorities routinely justify granting inventors, artists and business people property rights in their intangible creations on the ground that they need an incentive to engage in creative process. In copyright and patent law, for example, it is well established that Constitution's patent copyright clause exists to spur the production of creative and inventive works by providing compensation to individual authors and inventors. Incentive rationales are entrenched among courts, Congress and academics, notwithstanding the fact that there is little hard data to prove or disprove the assumption that property rights are needed as an incentive or that the amount of creative output in the United States would significantl decrease if property rights were reduced or denied. In the copyright area, particularly, 56 See e. g, KIMBERLY PACE MOORE, PAUL R MICHEL, RAPHAEL V LUPO, PATENT LITIGATION AND STRATEGY 4(1999 (noting that absent"the promise of exclusive rights, companies would not risk the capital expenditures in research and development and fewer inventions would reach the public.) See e.g.,K.J. Greene, Motion Picture Copyright Infringement and the Presumption of irreparable Harm: Toward a Reevaluation of the Standard for Preliminary Injunctive Relief, 31 RUTGERS L.J. 173 197(1999)(noting that "[a] consensus exists that economic considerations provided the primary theoretical basis of copyright law. See MARGRETH BARRETT, INTELLECTUAL PROPERTY: CASES AND MATERIALS 19(1995 See, e.g. Mazer v. Stein, 347 U.S. 201(1954) (discussing"economic philosophy "of patent-copyright clause). See also Raymond Shih Ray Ku, The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology, 69U. CHI. L REV. 263, 293(2002)(noting that copyright protection"is justified solely as an incentive for the creation and distribution of content)
10 millions of dollars in research and development without the carrot of a twenty-year patent monopoly.36 2. Economic Incentive/Efficiency Rationales Economic incentive rationales have unquestionably become the dominant paradigm used to justify protection for all forms of IPR’s in modern times.37 As commentators have noted, “[j]udicial, legislative and academic authorities routinely justify granting inventors, artists and business people property rights in their intangible creations on the ground that they need an incentive to engage in creative process.”38 In copyright and patent law, for example, it is well established that Constitution’s patentcopyright clause exists to spur the production of creative and inventive works by providing compensation to individual authors and inventors.39 Incentive rationales are entrenched among courts, Congress and academics, notwithstanding the fact that “there is little hard data to prove or disprove the assumption that property rights are needed as an incentive or that the amount of creative output in the United States would significantly decrease if property rights were reduced or denied.”40 In the copyright area, particularly, 36 See e.g., KIMBERLY PACE MOORE, PAUL R. MICHEL, RAPHAEL V. LUPO, PATENT LITIGATION AND STRATEGY 4 (1999)(noting that absent “the promise of exclusive rights, companies would not risk the capital expenditures in research and development and fewer inventions would reach the public.”). 37 See e.g., K.J. Greene, Motion Picture Copyright Infringement and the Presumption of Irreparable Harm: Toward a Reevaluation of the Standard for Preliminary Injunctive Relief, 31 RUTGERS L.J. 173, 197 (1999)(noting that “[a] consensus exists that economic considerations provided the primary theoretical basis of copyright law.”). 38 See MARGRETH BARRETT, INTELLECTUAL PROPERTY: CASES AND MATERIALS 19 (1995). 39 See, e.g. Mazer v. Stein, 347 U.S. 201 (1954)(discussing “economic philosophy” of patent-copyright clause). See also Raymond Shih Ray Ku, The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology, 69 U. CHI. L. REV. 263, 293 (2002)(noting that copyright protection “is justified solely as an incentive for the creation and distribution of content”)
lysts have contended that"much of what artists and innovators do in the arena, for example composing music, books, and works of art, is not generally motivated by Similarly, and notwithstanding widespread theoretical critiques of expanded protection of celebrity identity, the United States Supreme Court has posited that economic incentive theory best justifies the legitimacy of the right of publicity for individuals. Analysts have noted that in this connection that granting a property right in a person's identity results in the most efficient use of that identity because it induces the advertiser with the highest-valued use to purchase the right to use the identity at the market price. Commentators have argued conversely that both" the Lockean labor rationale [and] the economic incentive rationale may be an insufficient foundation upon which to base the right of publicity BARRETT supra note at 19. See also K.J. Greene, Copyright, Culture and black Music: A Legacy of Unequal Protection, 21 HASTINGS COMM. ENT L.J. 339, 358(1999)(contending that copyright law historically failed to protect works of African-American music artists, yet Black artists produced some of the most innovative and lucrative works in American music) 4 See e g. Steve P. Calandrillo, An Economic Analysis of Property Rights in Information: Justifications and Problems of Exclusive Rights, Incentives to Generate Information, and the Alternative of a Government-Run Reward System, 9 FORDHAM. INTELL. PROP. MEDIA AND ENT. L.J. 301, 312 (1998) For a pointed critique of the underlying rationales for right of publicity protection, see Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL L REV. 127(1993) See Zacchini v. Scripps-Howard Broadcasting Co, 433 U.S. 562(1977)(noting that television newscasters broadcast of entire human cannonball act posed"a substantial economic threat to that act.if act free on television, it will be less willing to pay to see it at the fair). See also Lugosi v. Universal Pictures, 25 Cal. 3d 813(Cal. 1979)(Bird, J. dissenting) contending that"the gravamen of the harm flowing from an unauthorized commercial use of a prominent individuals likeness is in most ases the loss of potential financial gain, not mental anguish") 4 Bruce P. Keller and David H Bernstein, The Right of Publicity: Toward a Federal Statute?,532 PRACT. L INST. PAT. 413, 417(1998) P See Note, Erika Paulstrde, Not the Last Dance: Astaire v. Best Film Video Corp. Proves California Right of Publicity Statutes and the First Amendment Can Co-Exist, 18 LOY. L A. ENT. L.J. 395, 404 (1998)
11 analysts have contended that “much of what artists and innovators do in the arena, for example composing music, books, and works of art, is not generally motivated by profit.”41 Similarly, and notwithstanding widespread theoretical critiques of expanded protection of celebrity identity,42 the United States Supreme Court has posited that economic incentive theory best justifies the legitimacy of the right of publicity for individuals.43 Analysts have noted that in this connection that granting “a property right in a person’s identity results in the most efficient use of that identity because it induces the advertiser with the highest-valued use to purchase the right to use the identity at the market price.”44 Commentators have argued conversely that both “the Lockean labor rationale [and] the economic incentive rationale may be an insufficient foundation upon which to base the right of publicity.”45 40 BARRETT supra note ___ at 19. See also K.J. Greene, Copyright, Culture and Black Music: A Legacy of Unequal Protection, 21 HASTINGS COMM. & ENT. L.J. 339, 358 (1999)(contending that copyright law historically failed to protect works of African-American music artists, yet Black artists produced some of the most innovative and lucrative works in American music). 41 See e.g. Steve P. Calandrillo, An Economic Analysis of Property Rights in Information: Justifications and Problems of Exclusive Rights, Incentives to Generate Information, and the Alternative of a Government-Run Reward System, 9 FORDHAM. INTELL. PROP. MEDIA AND ENT. L.J. 301, 312 (1998). 42 For a pointed critique of the underlying rationales for right of publicity protection, see Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 127 (1993). 43 See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)(noting that television newscaster’s broadcast of entire human cannonball act posed “a substantial economic threat to that act…if the public can see the act free on television, it will be less willing to pay to see it at the fair”). See also Lugosi v. Universal Pictures, 25 Cal.3d 813 (Cal. 1979) (Bird, J. dissenting)(contending that “the gravamen of the harm flowing from an unauthorized commercial use of a prominent individual’s likeness is in most cases the loss of potential financial gain, not mental anguish”). 44 Bruce P. Keller and David H. Bernstein, The Right of Publicity: Toward a Federal Statute?, 532 PRACT. L. INST. PAT. 413, 417 (1998). 45 See Note, Erika Paulstrde, Not the Last Dance: Astaire v. Best Film & Video Corp. Proves California Right of Publicity Statutes and the First Amendment Can Co-Exist, 18 LOY. L.A. ENT. L.J. 395, 404 (1998)
1. Misappropriation rationales Unlike economic efficiency rationales, misappropriation rationales posit that th inherent wrongfulness of some acts requires intervention by the state to prevent undesirable outcomes and deter socially reprehensible acts. At a basic level, misappropriation of intellectual property resembles theft or conversion. Much like other tort-based rationales, the misappropriation notion sets duties of commercial morality. In the context of intellectual property, the misappropriation doctrine has long prohibited the use by a competitor of the fruits of anothers efforts Commentators have noted that the misappropriation doctrine is traditionally traced to the Supreme Courts decision in International News Service v. Associated Press held that a competitor's appropriation of news from early editions of Associated Press newspapers constituted unfair competition under federal law. The heart of a misappropriation claim is that a taker of intellectual property has"reap[ed] where it has not sown. For decades, the INS-style misappropriation claim had been a backwater The parameters of such conduct are necessarily murky: it has been noted that"courts reach for misappropriation when the competitive situation seems unfair according to the readings of their personal internal, fairness barometers. See Maya Alexandri, The International News Quasi-Property Paradigm and Trademark Incontestability: A Call for Rewriting the Lanahm Act, 13 HARV. J. L. TECH 303, 333 (2000 Robert C Denicola, Freedom to Copy, 108 YALE L.J. 1661, 1680(1999). Professor Denicola's perceptive article outlines IP scholar Ralph Browns view on the misappropriation doctrine Id. citing the INS case, 248 U.S. 215, 239(1918)
12 1. Misappropriation Rationales Unlike economic efficiency rationales, misappropriation rationales posit that the inherent wrongfulness of some acts requires intervention by the state to prevent undesirable outcomes and deter socially reprehensible acts. At a basic level, misappropriation of intellectual property resembles theft or conversion. Much like other tort-based rationales, the misappropriation notion sets duties of commercial morality.46 In the context of intellectual property, the misappropriation doctrine has long prohibited the use by a competitor of the fruits of another’s efforts. Commentators have noted that the misappropriation doctrine “is traditionally traced to the Supreme Court’s decision in International News Service v. Associated Press, held that a competitor’s appropriation of news from early editions of Associated Press newspapers constituted unfair competition under federal law.”47 The heart of a misappropriation claim is that a taker of intellectual property has “reap[ed] where it has not sown.”48 For decades, the INS-style misappropriation claim had been a backwater 46 The parameters of such conduct are necessarily murky: it has been noted that “courts reach for misappropriation when the competitive situation seems unfair according to the readings of their personal, internal, fairness barometers.” See Maya Alexandri, The International News Quasi-Property Paradigm and Trademark Incontestability: A Call for Rewriting the Lanahm Act, 13 HARV. J.L. & TECH. 303, 333 (2000). 47 Robert C. Denicola, Freedom to Copy, 108 YALE L.J. 1661, 1680 (1999). Professor Denicola’s perceptive article outlines IP scholar Ralph Brown’s view on the misappropriation doctrine. 48 Id., citing the INS case, 248 U.S. 215, 239 (1918)
laim of sorts, however it has re-emerged in recent years with value of time-sensitive information rising, and the Internets as perfect vehicle to exploit such information The misappropriation principle includes broad prohibitions against overreaching by IP owners, such as the patent misuse doctrine, which exists to"ensure that the patentee does not prosper from an impermissible broadening of the physical or temporal scope of the patent grant. In the copyright context, copyright law provides both civil and criminal sanctions for willful and systematic piracy of copyrighted material. 52 2. Personality/Moral rights rationales Personality or moral rights rationales recognize that creators of works have non- pecuniary interests in preventing the distortion or misattribution of those works by others Moral rights, unlike purely economic regimes, concern how the artist presents his work to the public, and the way he preserves his identification with the work. " 53Moral rights spring from a belief that an artist in the process of creation injects his spirit into the 49 See J THOMAS MCCARTHY. MCCARTHY'S DESK ENCYCLOPEDIA OF INTELLECTUAL PROPERTY (2 Ed. )273 (1995)(noting that many courts, including the Second Circuit Court of Appea limited the INS case to it facts for decades, and that Supreme Court decisions "cast a pall of federal preemption over the misappropriation doctrine. See Bruce P. Keller, Condemned to Repeat the Past: The Reemergence of Misappropriation and Other Common Law Theories of Protection for Intellectual Property, 11 HARV.J. L& TECH 401(1998) See In Re recombinant DNA Technology Patent and Contract Litigation, 850 F Supp. 769, (SD.IND.1994) 02 See 17U. S.C. 506(a)(1999)providing that"a]ny person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain shall be punished.. under federal criminal law). The problem of IP piracy is serious, pervasive and expensive, both domestically and internationally See e. g, Susan Tiefenbrun, Piracy of Intellectual Property in China and the Former Soviet Union and Its Effects Upon International Trade: A Comparison, 46 BUFF. L REV.1,(1998) noting that"It]otal losses to the [U.s. economy due to intellectual property piracy continue to range from $20 billion to $40 billion annually") 13
13 claim of sorts,49 however it has re-emerged in recent years with value of time-sensitive information rising, and the Internets as perfect vehicle to exploit such information.50 The misappropriation principle includes broad prohibitions against overreaching by IP owners, such as the patent misuse doctrine, which exists to “ensure that the patentee does not prosper from an impermissible broadening of the physical or temporal scope of the patent grant.”51 In the copyright context, copyright law provides both civil and criminal sanctions for willful and systematic piracy of copyrighted material.52 2. Personality/Moral Rights Rationales Personality or moral rights rationales recognize that creators of works have nonpecuniary interests in preventing the distortion or misattribution of those works by others. Moral rights, unlike purely economic regimes, “concern how the artist presents his work to the public, and the way he preserves his identification with the work.”53 Moral rights “spring from a belief that an artist in the process of creation injects his spirit into the 49 See J. THOMAS MCCARTHY, MCCARTHY’S DESK ENCYCLOPEDIA OF INTELLECTUAL PROPERTY (2nd Ed.) 273 (1995)(noting that many courts, including the Second Circuit Court of Appeals, limited the INS case to it facts for decades, and that Supreme Court decisions “cast a pall of federal preemption over the misappropriation doctrine.”). 50 See Bruce P. Keller, Condemned to Repeat the Past: The Reemergence of Misappropriation and Other Common Law Theories of Protection for Intellectual Property, 11 HARV. J.L. & TECH. 401 (1998) 51 See In Re Recombinant DNA Technology Patent and Contract Litigation, 850 F. Supp. 769, ____ (S.D.IND. 1994). 52 See 17 U.S.C. 506(a) (1999)(providing that “[a]ny person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain shall be punished…” under federal criminal law). The problem of IP piracy is serious, pervasive and expensive, both domestically and internationally. See e.g., Susan Tiefenbrun, Piracy of Intellectual Property in China and the Former Soviet Union and Its Effects Upon International Trade: A Comparison, 46 BUFF. L. REV. 1, ___ (1998)(noting that “[t]otal losses to the [U.S.] economy due to intellectual property piracy continue to range from $20 billion to $40 billion annually”)
work and that the artists personality, as well as the integrity of the work, should therefore be protected.. Even assuming full economic compensation for use of a work, personality rationales permit creators to enjoin uses of their works that creators would find offensive the" essence of a moral-rights injury lies in the damage caused to the authors personality, as that personality is embodied in the fruits of her creation. 22 In French copyright law, moral rights include the right to attribution, the right to integrity, the right to divulgation, and the right to modification. In contrast to U. S copyright law, for example, the right of integrity"gives a creator the legal power to exercise control over a work, even after it has been sold or transferred, and to prevent its alteration, distortion or mutilation".However, U.S. law has long been remarkably resistant to directly incorporating moral rights into intellectual property law. The Visual Artists Rights Act of 1990, which protects limited edition works of fine art"is the only recognition of noneconomic based artist's rights by Congress since the United States Joined the Berne Convention 59 Further, it has been noted that there is significant 53 See Cheryl Swack, Safeguarding Artistic Creation and the Cultural Heritage: A Comparison of Droit Moral Between france and the United States, 22 COLUM.-VLA J L. ARTS 361(1998) 54 See Carter v Helmsley-Spear, Inc, 71 F3d 77,_(2d Cir. 1995), cert. denied.S.(1996) See roberta rosenthal Kwall, Preserving Personality and Reputational Interests of Constructed Personas Through Moral Rights: A Blueprint for the Twenty-First Century, 2001 U. ILL. L. REV. 151, 158 (2001) 56 See Michael B Reddy, The Droit De Suite: Why American Fine Artists Should Have a Right to a Resale oyalty,15LoY.L.A.ENT.LJ.509,513-15(1995) See e.g. Note, Carl H Settlemeyer, Between Thought and Possession: Artist's "Moral Rights"and Public Access to Creative Works, 81 GEO. L.J. 2291, 2306(1993) (noting that"[]he American copyright system has, until quite recently, refused to recognized the moral rights of authors per se." ). As a result, protection of personality interests has been forced to come in through the"backdoor", via private agreement or through contrivance of 43(a)of the Lanham Act prohibiting false endorsement and sponsorship
14 work and that the artist’s personality, as well as the integrity of the work, should therefore be protected…”54 Even assuming full economic compensation for use of a work, personality rationales permit creators to enjoin uses of their works that creators would find offensive: the “essence of a moral-rights injury lies in the damage caused to the author’s personality, as that personality is embodied in the fruits of her creation.”55 In French copyright law, moral rights include the right to attribution, the right to integrity, the right to divulgation, and the right to modification.56 In contrast to U.S. copyright law, for example, the right of integrity “gives a creator the legal power to exercise control over a work, even after it has been sold or transferred, and to prevent its alteration, distortion or mutilation”.57 However, U.S. law has long been remarkably resistant to directly incorporating moral rights into intellectual property law.58 The Visual Artists Rights Act of 1990, which protects limited edition works of fine art “is the only recognition of noneconomic based artist’s rights by Congress since the United States joined the Berne Convention.”59 Further, it has been noted that there is significant 53 See Cheryl Swack, Safeguarding Artistic Creation and the Cultural Heritage: A Comparison of Droit Moral Between France and the United States, 22 COLUM.-VLA J.L. & ARTS 361 (1998). 54 See Carter v. Helmsley-Spear, Inc., 71 F.3d 77, __(2nd Cir. 1995), cert. denied ___ U.S. ___(1996). 55 See Roberta Rosenthal Kwall, Preserving Personality and Reputational Interests of Constructed Personas Through Moral Rights: A Blueprint for the Twenty-First Century, 2001 U. ILL. L. REV. 151, 158 (2001). 56 See Michael B. Reddy, The Droit De Suite: Why American Fine Artists Should Have a Right to a Resale Royalty, 15 LOY. L.A. ENT. L.J. 509, 513-15 (1995). 57 Id. 58 See e.g. Note, Carl H. Settlemeyer, Between Thought and Possession: Artist’s “Moral Rights” and Public Access to Creative Works, 81 GEO. L.J. 2291, 2306 (1993)(noting that “[t]he American copyright system has, until quite recently, refused to recognized the moral rights of authors per se…”). As a result, protection of personality interests has been forced to come in through the “backdoor”, via private agreement or through contrivance of 43(a) of the Lanham Act prohibiting false endorsement and sponsorship