Working with Intellectual Property: Legal Histories of Innovation, Labor, and Creativity
Conference Panel Abstracts
Working with Intellectual Property: Legal Histories of Innovation, Labor, and Creativity
Third Annual Conference of the Stanford Center for Law and History
Virtual Event: April 23, April 30, May 7, 2021
Cosponsored by Stanford Program in Law, Science and Technology and Program in History & Philosophy of Science, Stanford University
Note: titles of papers and abstracts subject to change closer to the event
Day 1: April 23, 2021
Welcome: 9:25 – 9:30 AM (Pacific)
Panel 1: Histories of Creation, Practice, and Intellectual Property, 9:30 – 10:45 AM (Pacific)
Commentator: Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Professor, by courtesy, English, Stanford
Shusterman Professor of Business & Transactional Law
Temple University Beasley School of Law
Copyright And Curation: Zora Neale Hurston, John Lomax And Visions Of Black Culture
African American music is deeply woven in the fabric of twenty-first century global culture. The rise of African American music reflects profound shifts in musical tastes in the United States and elsewhere since the late nineteenth century. As a hybrid music form that emerged at the intersection of varied cultural crossroads, African American music reflects various types of borrowing. African American culture has also more generally become a major source for borrowings in myriad contexts. Cultural hierarchies can impact perceptions of modes of acceptable borrowing. The socioeconomic status of many African American musicians was a factor enabling appropriation and exploitation that occurred as African American music became more broadly disseminated in the twentieth century. African American music has far too often been treated as part of the public domain, which has made it freely accessible for all to use. Varied substantive legal frameworks, including copyright law, and formal and informal laws and legal processes, have reflected distinct modes of curation. Pulling together, sifting through, and selecting materials for presentation and representation evident in curation of art and music are also pervasive in law. The shaping of black music as a category owes much to curation by varied actors at different points in time. Consequently, what is thought to constitute black music is closely related to societal conceptions and individual understandings of what African American culture should be. The body of works that came to be categorized as black music constitutes a malleable category that has changed with time, place, and circumstance. Folklorist John Lomax was a powerful curator of African American culture who illustrates the interaction of curation and copyright. In addition to collecting African American folklore, including music, John Lomax accumulated copyright ownership rights in the material he collected. Lomax’s career underscores the role of power relationships in shaping cultural authority to curate and, more particularly, to represent African American culture at a time when African Americans and were typically not granted institutional authority to represent their own culture and identity. African Americans thus essentially lacked both cultural ownership and copyright ownership rights in their cultural production. The vision underlying Lomax’s curation activities is important for conceptions of both copyright law and culture. Lomax viewed African American culture in part as a vehicle for exploitation and personal profit. His copyright dispute with Huddie Ledbetter (Lead Belly), evidences exploitative uses of African American culture. Lomax’s views of black culture were rooted in a museum-like approach, which was not atypical for a folklorist of his era, that sought to collect, profit from, and preserve “authentic” vanishing cultural forms. In contrast, folklorist and writer Zora Neale Hurston had a conception of African American culture that reflected an understanding of culture as a living and dynamic force. The competing visions of Lomax and Hurston have implications outside of the cultural sphere. Dominant conceptions of copyright today may be based on a view of culture that reflects the Lomax vision but which does not sufficiently take account of living cultures and varied cultural communities. This may facilitate exploitation, particularly of cultural production of marginalized communities, and give insufficient recognition to the broad range of creativities that may exist.
Mario Biagioli
Distinguished Professor of Law and Communication, UCLA
Expressionless Copyright
Authorial expression has been placed at the roots of modern copyright — a conceptual move that has been traced to (and critiqued in) 18th sources. Here I argue that readings of 18th-century English and German sources (mine included) may have mistaken forensics (expression construed as a way to tell two texts apart) with causality (unique authorial expression as that which creates literary property). After reviewing this ambiguity, I discuss Kant’s proposal for protecting authors and publishers from the harm of reprinting without the invocation of any new concept of literary property or copyright. Part of an ongoing book project with Alain Pottage, an analysis of Kant’s proposal shows that “expression” can simply be treated as the specific pattern of distinctive characters that make up a book. Rather than expressive, expression may be an artifact of the medium of print.
Lauren van Haaften-Schick
PhD Candidate in the History of Art and Visual Studies, Cornell University
Remedies for Inequity 1971-2021: Resale Royalties to Redistribution via ‘The Artist’s Reserved Rights Transfer and Sale Agreement’ (1971)
During the 1960s-70s as artists in the United States challenged traditional aesthetic forms, they also questioned property and power relations in art by protesting inequality, advocating for artists’ rights laws, and experimenting with contracts, testing how legal regulations and ownership relations could be reconceived. One of the most iconic products of this moment was The Artist’s Reserved Rights Transfer and Sale Agreement drafted by conceptual art dealer-curator Seth Siegelaub and lawyer Robert Projansky in New York in 1971. This “Artist’s Contract” was intended to become the standard agreement for all artwork sales, and granted artists many rights not available through U.S. copyright law at the time, including moral rights, the right to approve exhibitions of one’s work, and most controversially, a 15% royalty of collectors’ profits at every resale. While its main purpose was to “remedy some generally acknowledged inequities in the art world” that privileged the interests of art buyers over those of artists, it was also designed to account for the needs and motives of all parties, recognizing the extraordinary connection between artists and collectors as both influence and are impacted by the changing value of artworks over time.
But amidst the activist fervor from which the Artist’s Contract sprang, a series of more radical proposals also emerged that focused not only on how artists’ rights frameworks could benefit individuals, but how the wealth produced through the art market could be redistributed. These included plans for an “Artists’ Survival Fund” that would support living artists through studio and exhibition space, and by meeting more general needs like legal defense and even health care. Supporters of these plans were quick to criticize the Artist’s Contract for abandoning redistribution as a goal, and for potentially re-entrenching the art market’s severe imbalance of resources and power by rewarding only those rare artists whose work was already profitable. Legislation for resale royalties, which the Artist’s Contract inspired, has been similarly criticized.
While research demonstrates that the Artist’s Contract and resale royalty legislation have benefitted artists at all economic levels, they remain no panacea for the problems of the art economy today. Since 1971, speculation in the art market has ballooned, as has its wealth gap, mirroring broader economic inequities. Against this backdrop however, a younger generation of artists and curators have recently revised it towards redistributive ends. This paper considers these historical countermodels and emergent proposals to ask: What can we glean from the shaky history of the Artist’s Contract and resale royalty legislation to theorize – and perhaps even draft – “remedies for inequity” today?
Nora Slonimsky
Assistant Professor and Director of the Institute for Thomas Paine Studies (ITPS), Iona College
“to save the Benefit of the Act of Parliamt”: Mapping an Early American Copyright Claim
When Lewis Evans attempted to secure a “copy-right” in the spring of 1755, he was about twenty years too early. A formalized intellectual property regime did not exist until 1790 and even then, it was extremely difficult to enforce. In colonial America, there was no comprehensive legislation for copyright or any other form of IP, a term that was just coming into use. And yet Evans sought compensation for his geographic labor through copyright recognition. A poor but respected émigré to Philadelphia, Evans was a mapmaker and surveyor whose bestselling work in A General Map of the Middle British Colonies in America became one of the most copied images of the eighteenth century.
Conscious of the law, of commerce, and of cartography, Evans’ pursed dual literary property protection in Pennsylvania and in England. While A General Map was not solely the innovation of Evans – like most geographic texts of this period, it relied heavily on Indigenous knowledge and collaborative work – he was able to secure the political support and public reputation necessary to create his own extra-legal form of copyright. In doing so, Evans recognized separate legal, political, and economic jurisdictions across the British empire, nearly twenty years before the American Revolution. Those same boundaries, illustrated in A General Map, intersected with, and even exacerbated, conflicting understandings of colonial and imperial authority. In that same twenty year period between the publication of A General Map and its piracy around the Atlantic world, a dispute over ownership and originality developed outside the courtrooms of London or Philadelphia.
Break, 10:45 – 11:00 AM (Pacific)
Keynote: 11:00AM – 12:00 PM (Pacific)
John F. Nickoll Professor of Law, University of Michigan Law School
What counts as authorship and who counts as an author?
The Copyright Office and Patent Office have launched investigations into how copyright law should treat artificial intelligence. Responses to the requests for comments illustrate something that we often fail to attend to: repeat copyright players maintain longstanding assumptions about implicit constraints that copyright law imposes on both the expression that copyright protects and the persons entitled to claim it. Those assumptions are not and have never been as widely shared as copyright insiders believe, and many of them are not and have never been embodied in statutory language. Until forty years ago, the copyright statutes’ formal requirements offered courts and copyright lawyers tools to manage collisions between their expectations and what the statute might say or fail to say. Congress relaxed or eliminated most of those formalities in 1976. At the same time, it reformulated the law in broadly phrased and open-ended provisions. That has complicated the resolution of disputes about who counts as an author and what counts as authorship. Those disputes reveal tension between implicit assumptions and broad general statutory language, and have generated both poorly reasoned court opinions and sneaky legislative maneuvers to reaffirm or restore what proponents believe to be the natural order.
Day 2: April 30, 2021
Panel 2: Histories of Labor and Intellectual Property, 9:30 – 10:45 AM (Pacific)
Commentator: Paul Goldstein, Stella W. and Ira S. Lillick Professor of Law, Stanford Law School
Miranda Banks
Associate Dean of Academic Affairs of Film and Television and Associate Professor, Department of Film, Television, and Media Studies, Loyola Marymount University
Creative/Agency: A Brief History of Hollywood Writers and Their Take on The Current Landscape of Creative Labor
In April 2019, seven thousand American film and television writers fired their agents. With no end in sight to this stand-off between the Writers Guild of America and the Association of Talent Agents, the battle between these organizations serves as a touchstone to examine questions about the changing nature of creative labor in Hollywood, of the development of content creation for the screen, and of professional roles in Hollywood. My focus here will be on examining how writers perceive these changes within the industry and how by examining key flashpoints in the history of writers and their guild, we can better see how this off-screen drama between agents and writers is impacting on-screen content in the months and years to come.
Catherine Fisk
Barbara Nachtrieb Armstrong Professor of Law, Berkeley Law
Brent Salter
Stanford Center for Law and History, Stanford Law School
The Power of Assumptions and the Fragility of Labor Relations in the American Theatre
As we look for examples of collective self-regulation in a gig economy, commercial theatre offers a century of experience with freelance work. Yet the Dramatists Guild and commercial theatre producers have negotiated collectively for nearly a century under a cloud of legal uncertainty created by the intersection of antitrust law and labor law that dates to the pre-New Deal era. As theatre begins to rebuild after the catastrophe of the pandemic, it is worth considering whether the crisis of 2020 could provide an opportunity to reconsider the four longstanding but unnecessary assumptions about antitrust, labor law, and copyright law that have shaped the organizational structures that mediate relations between producers and writers for the stage:
Assumption #1: Playwrights, unlike actors or directors, cannot unionize under the National Labor Relations Act because playwrights are independent contractors.
Assumption #2: Playwrights must have the legal status of independent contractors under federal labor law, lest they lose control of the copyrights in their work under the work for hire provisions of the 1976 Copyright Act.
Assumption #3: Unionization of playwrights is not merely unprotected by the National Labor Relations Act (see Myth #1), but it is affirmatively prohibited by federal antitrust law.
Assumption #4: The precarious legal status of playwrights as outlined in Assumptions 1-3 is necessary to protect their creative autonomy. Whatever economic security and stability writers could attain if the Dramatists Guild were a union and if there were real collective bargaining would be at the cost of dramatists’ creative freedom, independence, and ability to prevent the rewriting of their work. In short, to be a real artist, a dramatist necessarily must run the risk of being impecunious.
This article offers a detailed history, based on previously unavailable archival sources, of the origin of these assumptions, how writers, producers, and various intermediaries struggled to create a functional system in the face of legal doubt, and why it is time to abandon the assumptions about the significance of antitrust and copyright law in structuring relations between writers and producers.
Peter Labuza
Postdoctoral Fellow, University of Southern California
The Art of the Deal Maker: David Susskind and Contracting Postwar Artist Culture
Lorraine Hansburry’s play A Raisin in the Sun was a rare achievement for an African American playwright in the 1950s, as her Broadway play on race made her well known in drama circles and beyond. It was only natural for a producer to ask Hansburry to transform her play into a film. But in the trailer for the adaptation, you won’t find Hansburry’s name anywhere near it. Instead, the first person on screen is David Susskind, a man whose role in making the film, for all intents and purposes, came down to “buying the rights.”
This paper explores the strange affair of David Susskind’s attempts to become a Hollywood artist, not through his own craft as a laborer but essentially as a rights poacher. Susskind was a talent agent turned television producer and on screen personality, known to almost every American with a set for his interviews with Nikita Khrushchev and Martin Luther King, Jr. But he dreamed of Hollywood and tried to break into the industry in the most curious way: trying to latch a ride onto the interest of other creative television writers. As writers like Paddy Chayefsky and Rod Serling managed to transition from television to Hollywood, Susskind targeted their contemporaries to convince them to turn their rights over to him.
The late 1950s period of film and television became a fickle ground for rights negotiations, as scholars like Miranda Banks and Catherine Fisk have demonstrated. This paper examines one of the legal fictions of the era: how qualification as an artist had little to do with the actual production of labor. Susskind used control of contractual rights and publicity agencies to ensure that his voice became the artistic identity of works where his role was largely informal. In many ways, he became a representative of the industry’s new kind of artist: the deal maker. The fact that Susskind—who seemingly never once performed production work—made Hollywood films this way suggests the pervasiveness of this new regime. By following some of his early productions through the early 1960s, I argue for understanding that the key transformation of postwar creative labor was not just one of rights and employment but of a new kind of deal making culture that emerged.
Minh-Ha T. Pham
Associate Professor, Humanities & Media Studies, Pratt Institute
#BalenciagaThailand: How Thai Social Media Users Made Balenciaga Pay for Copying the Sampeng Bag
My paper discusses one example of a larger phenomenon in which consumers are using social media to police and adjudicate incidences of fashion copycatting. As I explain in my book-in-progress, fashion trials by social media tend to reproduce hegemonic and racialized property relations through the unpaid informational labor of social media users. However, the case I will be discussing is unique in that Thai consumers’ online actions resulted in counter-hegemonic outcomes that challenged “the regime of the global brand.” As I’ll explain, Thai consumers deployed memes and hashtags to exact informational, cultural, and economic costs from Balenciaga for the uncredited and uncompensated use of a Thai design.
Break, 10:45 – 11:00 AM (Pacific)
Book Talk: 11:00AM – 12:00 PM (Pacific)
Anjali Vats
Associate Professor of Communication, African and African Diaspora Studies, Boston College
The Color of Creatorship: Intellectual Property, Race, and the Making of Americans
Commentators:
Myisha Eatmon, Assistant Professor of History, University of South Carolina
Sonia Katyal, Chancellor’s Professor of Law, Berkeley Law
Shobita Parthasarathy, Professor of Public Policy and Women’s Studies, University of Michigan
Fei-Hsien Wang, Associate Professor, Department of History, Indiana University Bloomington
Day 3: May 7, 2021
Panel 3: Legal Histories of Innovation , 9:30 – 10:45 AM (Pacific)
Commentator: Lisa Larrimore Ouellette, Professor of Law and Justin M. Roach, Jr. Faculty Scholar, Stanford Law School
Haris A. Durrani
JD/PhD Candidate, Columbia Law School and Princeton University (Department of History, Program in History of Science)
Winner of the 2020 Stanford Center for Law and History Graduate Student Annual Conference Paper Prize
The Recent History of Free Space: Law, Technology, and the US Administrative State in the Global Cold War
In summer 1963, Syncom II became the first communications satellite to reach geosynchronous orbit, “irretrievably located 22,000 miles in space and over South America,” via a network of command stations in the United States, Nigeria, and South Africa. Around these technological practices, attorneys and other decisionmakers formulated a capacious legal idea with an apparently deep history in the so-called western legal tradition: “free space.” In 1968, NASA attorney Robert F. Kempf articulated a version of the idea to a room of engineers, lawyers, and policymakers at the Fifth Space Congress in Washington, DC. Addressing a dispute about the patent on the method and apparatus which placed Syncom II in orbit, he described “a free space concept”: Extraterritorial areas were free spaces in which all nations held rights to exercise “jurisdiction and control” over technological activities without interference. These areas included not only outer space and the high seas but also foreign territories and the electromagnetic spectrum. Kempf responded to a broader quandary that troubled US agency and industry decisionmakers as they operated technologies abroad during the Global Cold War: What was the relationship between jurisdiction, sovereignty, property, and territory beyond the perceived boundaries of the United States?
The articulation of the free space concept within the US administrative state raises a fundamental question about the midcentury relationship between law, history, and imperialism. The concept invoked stories of property and territory that have occupied US legal historians since the origins of their discipline in this period. Historians have understood postwar legal approaches to “global governance” and the administrative state as shaped by apparently deep-rooted western legal traditions: property and regulation in the American “frontier”; the “commons” of Anglo-American waters, pastures, forests, and wastes; the “freedom of the seas” and res communis in the oceans; and terra nullius and “effective occupation” in US and European imperialism. The midcentury articulation of the concept alongside its histories invokes a genealogical inquiry: Did lawyers and others formulate the concept at the same time as they invented its past?
I argue in the affirmative. I track genealogies of the free space concept by exploring legal practices and discourses leading to and following Kempf’s articulation of it in 1968. His presentation followed work across the decade on disputes about whether NASA or Hughes Aircraft Company held title to the aforementioned patent. I suggest historians have inversely periodized the free space concept and its homologies. The history of empty, shared, or claimable resources on land and in watery spaces did not influence midcentury American approaches to global governance. Rather, the development of novel technologies in the Global Cold War, alongside reframed imperial ambitions and the rise of institutionalism, informed Americans’ understanding of the western legal tradition. These developments led lawyers and others in US agencies and industry to imagine global governance with the abstract, spatial language of control over closed systems. They subsequently wrote the free space concept into the past, eliding the historical prevalence of variegated, diffuse approaches to property, jurisdiction, sovereignty, and territory.
Aileen Robinson
Assistant Professor, Theater and Performance Studies, Stanford
Possessing Illusions: Ownership and the Patent in 19th Century Performance Magic
Performance magic has long, since the 18th century, been a wellspring of innovative tricks, illusions, and inventions. Magicians drew upon burgeoning scientific theories (microscopy, mesmerism) and new technologies (magnetism, electricity) to create haunting images and compelling shows. While the inherent wonder of a new technology, the strength of the magnet, for example, formed the core of many tricks, the entire enterprise of magic often traded on secrecy. By the mid-19th century, many magic tricks were copies and editions of one another, changing the entire illusion through a mirror, a cloth, or a simple lever. Patents, and subsequent battles over intellectual property rights, formed a large part of internal wars between magicians from the 1860’s through the 1930’s. Patents and lawsuits became an essential component of performance magic as performers attempted to retain their illusions for themselves. This talk explores the relationship between secrecy, technology, and possession through two significant illusion-makers, John Henry Pepper, the creator of the eponymous Pepper’s Ghost, and John Nevil Maskelyne, the oft-reviled head of the Egyptian Hall. Stemming from research into the cultural history of popular performance and science, I explore the relationship between intellectual property, legality, and ownership in the mid-Victorian era.
Kara W. Swanson
Professor of Law and Affiliate Professor of History, Northeastern University
Race, Gender, and the True Inventor
United States patent law has limited patents to true inventors since 1790, sanctioning false inventors with patent invalidity. This Article uncovers the surprising use of false inventors to obtain patents in defiance of this requirement, arguing that some true inventors chose to risk this sanction as the best means of monetizing their invention. They did so in the context of systemic racism and sexism, using white male false inventors as a form of covering, a strategy to hide their identity in order to increase their chance of patents and profits. The Article argues that the true inventor requirement was originally interpreted loosely, allowing white businessmen to develop the practice of using false inventors as a convenient means of allocating patent ownership. The practice was then adopted by white women and Black women and men to reduce bias and stigma that hindered invention commercialization. Using historical methodology to read the silences of the archive – the true inventors missing from the patent record – the Article demonstrates how some marginalized inventors strategically interacted with the patent system in ways that covered their identity in the patent records, the most official and prominent record of American inventiveness. It further argues that the resulting overrepresentation of white men in the patent record facilitated appropriation by patent from marginalized inventors, a practice with origins in slavery and coverture. This raced and gendered history, encompassing both covering and appropriation, has had consequences that reverberate to the present, in the form of depressed participation in invention and patenting and losses to marginalized communities, measured in the current severe underrepresentation of white women and BIPOC in patenting.
Steven Wilf
Anthony J. Smits Professor of Global Commerce, University of Connecticut School of Law
What We Talk About When We Talk About Fictional Characters (and Copyright)
What do pictures want? Echoing the famous question posed by art historian W.J.T. Mitchell, this article interrogates that query within the skein of copyright law. The creation of a fictional character means seeing a possibly singular, inert image as having a past and a future, a panoply of emotional responses and, significantly, desires. Fictional characters are not copyrightable per se. Rather, protection stems from expression of those characters in copyrightable works. To determine whether fictional characters have reached the threshold of complexity worthy of copyright, courts inquire how well a character has been delineated.
For nearly a century, copyright has relied upon traditional round character literary analysis which looks at a character’s distinguishable features from the audience’s point of view. Recently, flat protagonist criticism examines whether the character serves as a proper vehicle for the author’s story. This article takes another approach—asking what the image is trying to tell us about its own absences, needs, and emotional lacunae. Beyond establishing protection, we need to query what protagonists are unworthy of copyright. I argue that stereotypes should be held to stricter scrutiny as creating insufficiently desiring characters.
Break, 10:45 – 11:00 AM (Pacific)
Book Talk: 11:00AM – 12:00 PM (Pacific)
Gerardo Con Díaz
Assistant Professor in Science and Technology Studies, UC Davis
Software Rights: How Patent Law Transformed Software Development in America
Commentators:
Christopher Beauchamp, Professor of Law, Brooklyn Law School
Mark Lemley, William H. Neukom Professor of Law, Stanford Law School
Xiaochang Li, Assistant Professor, Department of Communication, Stanford
Kara W. Swanson, Professor of Law and Affiliate Professor of History, Northeastern University
© Stanford University. Stanford, California 94305.