Is IP Utilitarian or a Natural Right?

Competing ideas image.
Image by ivelinradkov

Usually, when we talk about copyright or patents, we focus on the utilitarian aspects of the law.  We’ll discuss the merits of specific arguments in a case or the need of the author or inventor to earn a living from her work relative to the social and economic value of that work to the market.  But an ongoing debate among academics, which occasionally seeps into the blogosphere and general reportage, is the question of whether IP law is grounded in natural rights or based exclusively on utility.  Is there a natural right of ownership in the “fruits of labor” that produces a photograph or a photographic invention? Or are copyrights and patents a purely functional bargain between the state and the author or inventor in order to reap the benefits of individual genius?

It would be a mistake to assume that everyone who takes a utilitarian view of IP is an IP critic and that everyone who takes a natural rights view is an IP advocate.  I know at least a few colleagues who passionately defend IP but who are skeptical of a natural rights foundation.  Among utilitarians, however, there are those who consider the IP bargain a “necessary evil” that should not extend one iota beyond the achievement of the desired outcome (i.e. the delivery of works into the market), and there are utilitarians who espouse a more elastic (and perhaps less cynical) view of these laws.  Suffice to say, those who hold the “necessary evil” view are unlikely even to entertain a natural rights perspective of IP and are the ones most insistent upon seeking empirical evidence of IP’s presumed value.

Professor Robert P. Merges of Berkeley Law recently published a paper entitled Against Utilitarian Fundamentalism.  It is primarily a work of self-defense in response to a paper written by Professor Mark A. Lemley of Stanford Law entitled Faith-Based Intellectual Property.  Lemley had proposed that some advocates of IP law’s status quo are apt to turn a blind eye to empirical data regarding efficacy, clinging instead to “faith” in IP akin to religious zealotry.  This accusation takes direct aim at Merges’s book Justifying IP, in which the author does use the word faith to affirm his belief in the purpose of IP law despite finding no conclusive evidence of its utility that would satisfy, as he says, “an unbiased jury of hardheaded social scientists.”

Of course, one problem with empiricists is that they often don’t admit to their own biases, or to the biases inherent in data (e.g. the overemphasis on standardized testing in American education); and this flaw is central to Merges’s rebuttal—that Lemley is guilty of exactly the same narrow-mindedness of which he accuses his colleague. Beginning with the premise noted above that IP law is a “necessary evil” with the purpose of producing a measurable outcome, Lemley makes a case for an empirical approach to potentially reshaping IP law as minimally as possible to achieve its utilitarian ends. He then accuses Merges (and others) of ignoring empirical evidence as follows:

“Merges refers to his “faith” in IP law, and that is exactly the right word. I call this retreat from evidence faith-based IP, both because adherents are taking the validity of the IP system on faith and because the rationale for doing so is a form of religious belief. The adherents of this new religion believe in IP.”

Careful not to accuse all religious people of being irrational, Lemley labels Merges and colleagues as irrational in a religion v. science context. Merges counters thus:

To compare nonconsequentialist IP theories to irrational, unscientific beliefs is to commit two very large errors. The first is to collapse all “opposing” theories—all those not empiricist/utilitarian—into a single derogatory category. The second and larger error is to raise the empirical/utilitarian theory to the status of the one and only true path, the sole road to enlightenment.”

Lemley’s paper reflects the view that there is no natural rights (pre-political) basis for IP, which means that there is something inherently immoral about departing from utility backed by evidence. He writes…

“If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first.”

Children painting.

To this, Merges cites empirical research into the ethical psychology of even very young children who reveal an understanding that the first “author” of some work or possessor of some object is indeed its “owner.” He quotes one study from 2008, which says, “[C]hildren (6–8 years old) determine ownership of both objects and ideas based on who first establishes possession of the object or idea.”

Photo by nullplus

Can any natural right be “proven” by science?

My own response would be to ask Lemley, or anyone, to provide “evidence” that the free speech, which he identifies as being in conflict with IP, is a natural right itself. Should we conclude that those Framers who initially considered the Bill of Rights to be redundant did not believe in the right of speech?  Or is it more accurate to say that the First Amendment is not evidence of this right so much as it is a written affirmation of what we, the descendants of western civilization, innately feel to be a natural right?

Similarly, John Locke’s 17th-century reflections on property are not evidence that modern IP should exist; they are one very smart guy’s articulation of a sensibility felt by many people other than Locke himself.  Coincidentally, Locke’s Two Treatises of Government are also a rebuttal—in that case to Robert Filmer’s over-reliance on the Bible as empirical “evidence” for the divine right of the monarch.

So, is Lemley being fair when he contrasts a “strictly utilitarian” legal principle (which he asserts IP is) with an “obvious” natural rights legal principle like free speech?  I’m not sure he is because neither IP nor speech can easily claim anything but a natural right foundation, depending on how far back one is willing to look for written precedent. And one need not go back very far before both IP and speech disappear from the record as protected rights in any modern sense. So, is it not reasonable to consider that the predicate for IP may be just as natural rights based as free speech, even if we generally prioritize the importance of the latter over the former?

This line of inquiry inspires me to ask a broader question that applies not only to IP law, but to all law:  Is it a science? Yes, law is practical and must rely substantially on relevant data; but unlike one aim of science, which is to discover origins, I would argue that it can be impossible to trace evidence back to the original rationale for a law unless one is willing to admit that the answer may be no more evidentiary than this:  because that’s how we feel about it.

Just because the application of law must stand up to the scrutiny of logic, that does not mean its predicate may not be emotion—or to use Merges’s more accurate word, deontological.* Legal scholarship looks for precedent, which even looks to Scripture in some cases. But there has to be a point at which precedent is unavailable, and the scholar, or legislator for that matter, is striving to intellectualize emotion rather than admit that collective emotion can be a perfectly valid rationale for creating a law.

What authority really dictates that “all men are created equal”? The American Declaration of Independence? Written long before all people in this country were remotely treated as equals?  The Bible? Hardly.  At this point in history, equality for all persons is an innate core value that is felt by hundreds of millions of people regardless of how diverse their religious, cultural, economic, and social views may be. And it is absolutely possible to feel a moral sense about such things without knowledge of any particular doctrine of record. Conversely, what if one were to assemble empirical data to reveal certain social benefits of inequality?  We have citizens who think this way, so why not follow their rationales? To quote Merges …

“There are ways of reasoning that are not based on strictly empirical data. And belief in these forms of rationality does not equate to “faith” in the pejorative sense. People reason in nonstrictly empirical ways about what is right, and what is wrong, and have done so for a very long time.”

Even the most mundane, utilitarian law can reflect some underlying moral principle. A local ordinance passed to install a traffic light at an intersection can begin with a communal agreement that safety, usually of children, overrides whatever inconvenience or cost will be incurred by the addition of the light.  Does the community, in this case, search for empirical evidence that supporting the safety of its children achieves a broader utilitarian end in the national interest? Probably not.

The traffic light is clearly utilitarian, but the underlying rationale for installing it is a mutually-felt sense of the right thing to do for its own sake.  And, as Merges points out in regard to IP law, it doesn’t actually matter if some people in the town council meeting have a completely different rationale for installing the traffic light, because they can still discuss and debate the best approach to installation with their neighbors.

Referring to what he calls “midlevel principles,” Merges uses two examples in which two IP attorneys, scholars, or legislators can easily debate and discuss all of the salient aspects of applying IP law—statutes, caselaw, etc.—without agreeing on the underlying rationale for IP’s existence in the first place.  “People with divergent foundational beliefs can and do engage each other in spirited and productive policy debates. They have, in other words, much to say to each other,” Merges writes in direct response to Lemley’s conclusion as follows:

“If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.”

Aside from provoking the above question as to what extent law can fairly be called a science, Lemley’s exclusionary statement seems to assume that the “evidence” that IP “reduces creativity by others” is conclusive. Given that scholars of equal merit passionately debate this very topic, how is Lemley’s view not a leap of faith in its own right?  Like religious scripture or artistic expression, the truth in empirical study is often in the eye of the beholder; and Merges’s point is based on his observation that the evidence to-date is “inconclusive,” which is not the same as rejecting data that points in a clear direction.

With regard to IP law, as with many areas of policy, there is always a danger in going too far in any one ideological direction.  Taking an overly-utilitarian view of IP can sap the spirit of the principle by treating the author or inventor as a machine to be tweaked and maximized toward his/her greatest efficiency of output. Likewise, an overemphasis of the natural right principle without empiricism could produce a kind of self-fulfilling maximalist framework—though I don’t know anybody who advocates such an approach.

Meanwhile, in the casual, public debate, people who are not trained in the law transition between the natural right and utilitarian perspective all the time without really noticing.  For instance, when fans show support for a musician who doesn’t want a politician using his songs, they’re reflecting a natural rights sensibility, and one that is—ironically enough—not generally supported by copyright’s utility. This suggests that even people who don’t give IP much thought innately feel that the author or inventor is indeed the natural “owner” of a work; and to Merges’s point, this in itself does not preclude reasonable debate on the application of IP law as a matter of utility.


*Deontic – of or relating to duty and obligation as ethical concepts.

CORRECTION:  This post as originally published mistakenly identified Mr. Lemley as a professor at UCLA. His paper was published in the UCLA Law Review.

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Reality Check – H.R. 1695

Photo by stefanocarocci

H.R. 1695, The Register of Copyrights Selection and Accountability Act, passed in the House of Representatives last week with a vote of 378-48.  As the bill moves to the Senate, many of the usual suspects in anti-copyright circles have vowed to fight its full passage into law. By “fight,” I assume these groups will repeat a bit louder the same fictions they began saying when the bill was introduced.  I have already responded to the assertion that this organization change will adversely politicize the role of Register; but there is also at least a muttering insinuation out there that 1695 is somehow a rebuke of Librarian Hayden herself.  And because politics breeds narratives that often have little to do with the issues or the record, I thought a review of the record as a simple timeline might be helpful.

1897 —  As indicated in at least two posts, the creation of the Copyright Office within the Library of Congress dates back 120 years and was predicated on a function very different from the role of the office in a modern—let alone digital—world.

1970s—Present — Unofficial discussions among policymakers and copyright experts about the proper structure and location of the USCO have been happening for decades.

Summer 2013 — The House Judiciary Committee begins preliminary hearings as part of its comprehensive review of copyright in the United States.

Fall 2014 — The Committee accepts recommendations on restructuring the Copyright Office, and among these are proposals to make the Register a presidential appointee just like the Librarian.

June 4, 2015 — Representatives Judy Chu (D-CA) and Tom Marino (R-PA) present a discussion draft of the CODE Act, which includes a provision to make the Register a presidential appointee.

June 10, 2015 — The LOC announces that Librarian James A. Billington will step down as of January 1, 2016.

February 24, 2016 — President Obama announces his intention to nominate Dr. Carla Hayden as Librarian of Congress. Anti-copyright voices respond almost immediately with ebullient expectations that Hayden might reshape copyright policy.

August 2016 — Anti-copyright organizations declare that the FCC’s “Set-Top” Box proposal has “nothing to do with copyright.” Because this view does not square with Register Pallante’s testimony on the matter, these groups cite this difference of opinion as “more evidence” that Pallante is beholden to corporate rights holders.  Neither Pallante’s remarks on the FCC proposal nor her official testimony on a wide range of issues supports these criticisms.

September 2016 — Dr. Hayden assumes her position as Librarian of Congress. In that same month, Public Knowledge appears to be leveraging the FCC-related momentum when they release a “report” comprising innuendo, anecdote, and opinion to accuse Pallante and the entire USCO of “regulatory capture” by major rights holders.

October 2016 — Register Pallante is effectively fired by Dr. Hayden, sparking much speculation in the blogosphere. Regardless of what really occurred at the LOC, Pallante’s ouster is portrayed by anti-copyright organizations and pundits as Dr. Hayden “cleaning house.”

December 2016 — Dr. Hayden announces plans to use Survey Monkey to crowdsource input regarding the next Register of Copyrights. In all likelihood, this move is not well-received by Congress in light of the fact that the House Judiciary Committee had begun to consider making the Register a presidential appointee at least sixteen months prior to Dr. Hayden’s nomination.

March 23, 2017 — Co-sponsors Rep. Bob Goodlatte (R-VA) and Rep. John Conyers (D-MI) along with 29 bi-partisan cosponsors introduce H.R. 1695.  The bill passes out of committee with a vote of 27-1 then passes the full House 378-48 on April 26, 2017.


Following their standard MO, institutions and individuals opposed to copyright—and who might have been hoping that Dr. Hayden would reshape policy—have tried to portray 1695 as a fast-track, Trumpian power-grab from the new Librarian. This false narrative is further distorted by the optics—namely that Dr. Hayden is the first African American woman to hold the position.

But the record is what it is. There is nothing fast-track about reorganizing an office that opened more than a century ago under radically different circumstances.  And the on-record discussions and plans now manifest as H.R. 1695 predate by more than a year both the nomination of Dr. Hayden and any clear expectation that Donald Trump would become President.

The bill was introduced by a 26-term Representative who was present at Selma, was a founder of the Congressional Black Caucus, and who introduced the legislation to make Martin Luther King, Jr’s birthday a national holiday; so any implications of racism in some kind of Trump v Hayden story are as ideologically absurd as they are chronologically impossible.

Finally, the primary motivation for making the USCO independent of the LOC is that they simply perform two distinct functions.  Any hope on the part of anti-copyright interests that Dr. Hayden–or any Librarian–would dramatically reshape copyright policy solely by virtue of the organization chart, is whimsical at best.  Such an incoherent approach would undermine both the Copyright Office and the Library of Congress.

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Yelp Claims Contradictory Rights

Chameleon photos by leisuretime70

Imagine Elizabeth Proctor runs a corner café in a small town and that Abby Williams has held a grudge against Elizabeth ever since the former beat her out for cheerleader captain back in high school.  So, feeling especially vindictive one afternoon, Abby writes a nasty review of Lizzy’s café on Yelp, complete with invented details about bugs and other health violations.  In response, Elizabeth sues Abbigail for defamation and wins her case, and the court issues an injunction that includes an order for Yelp to remove the libelous reviews.  But the website refuses to remove the reviews even though they’ve been held to be defamation under the law …


Perhaps it’s folly to contradict the opinions of I don’t know how many attorneys who filed a dozen amicus briefs on behalf of Yelp in a case now heading to the California Supreme Court, but I’m gonna.  Because I believe the concerned parties—and this includes news media publishers whom I consistently support—may be overstating the hazardous implications of the California Appeals Court decision in the case of Hassell v Bird.

In 2013 Ava Bird posted negative reviews about San Francisco attorney Dawn Hassell on Yelp. Hassell believed the reviews to be defamatory rather than honest criticism. She sued Bird and won on a default judgment because Bird failed to appear in her own defense. Whether the reader would agree or not that Bird’s reviews were defamatory is immaterial at this point for two reasons: 1) the default judgment settles the matter as far as the law is concerned; and 2) in the context of what this case is now all about, let us at least agree that online reviews can easily be abused by a bad actor, or a competitor, to defame a person or business.  (On a side note, Hassell’s firm has a lot of positive reviews on Yelp.)

In its judgment, the court issued an injunction, which included an order for Yelp to remove Bird’s reviews.  This is a standard form of relief provided by courts in such cases. When an entity is not a named party in a litigation (i.e. they bear no liability for any harm), but this non-party is indirectly supporting some harm being done, the non-party can be prevented from continuing to support the harmful conduct. (See earlier post about Equustek v. Google.)

A typical example would be a court order that Visa and MasterCard stop processing payments for a named defendant in a case, regardless of the fact that these companies bear no liability for any harm that may have been done to a named plaintiff.  If you were harmed by defamatory statements on a web platform, and proved defamation in court, you would naturally want the material removed even if you would not—and could not—hold the platform responsible for the harm you received.

But when it comes to complying with this type of injunctive relief, the owners of web platforms get a little antsy; and this includes the news media platforms, who filed an amicus brief in this case emphasizing the importance of comment sections to the overall vibrancy of journalism in the digital age.  Other amici, including the EFF, the ACLU, and several web platforms, all assert that if the injunction ordered by the California Court of Appeals is upheld, this will harm due process, free speech, and the liability shield in Section 230 of the Communications Decency Act (1996) that is accorded to online service providers.

Although it is a habit of many site owners to behave as though the removal of any content is a slippery slope toward censorship, let’s remember that in just this one case, the plaintiff had to prove defamation in court and pray for injunctive relief—and that was in 2013, which is about 730 trillion tweets ago, just for perspective.  But the real complication in this story comes when websites assert their interests under both the First Amendment and Section 230, because the two are fundamentally at odds.

First Amendment or Section 230:  Pick One

In simple terms, Section 230 of the CDA protects websites and other service providers from liability stemming from the actions of its users.  The underlying premise for this protection is that the platforms and providers are not “publishers” of the content (i.e. they are not the speakers).  Section 230 is an important protection and one that indeed enables sites to function without undue risk of litigation.  But the amici filing on behalf of Yelp also claim that Yelp and all web platforms have First Amendment rights at stake in Hassell, and the problem is this:  if you’re not the speaker, you can’t claim a First Amendment right of speech because you’re not speaking! (read that as Lewis Black).

Yelp wants it both ways.  They want the liability shield afforded by Section 230 on the basis that it is not the speaker but also want to claim First Amendment rights as if it were the speaker.  Sometimes, web platforms claim to be protecting the free speech rights of their users, and this can be a valid claim in many instances.  In fact, this concern appears central to the news media sites, who unquestionably have a right to support the free speech inherent in the dialogue between their journalists and the readers who write comments.  These parties even point to several intriguing statistics suggesting that reader comments can, in many ways, improve the quality of their own reporting; and this should not be undervalued.

Nevertheless, I would argue that a site like Yelp, which trades substantially in consumer reviews of businesses on a local level, is already a very different forum from the comments section of a news site. More to the point, it is a forum that is uniquely vulnerable to someone acting with malicious intent to defame a specific proprietor. It seems that it would be far easier to demonstrate how a libelous review might meet the standard of “defamation” under the law than it would be to prove that a comment on a news story rises to this level of harm.

Still, if a comment on a news site were to spark events akin to a “Pizzagate,” the party who wrote the comment can be sued; and the site(s) hosting the defamatory content should be ordered to remove it—though I would think they’d want to do so voluntarily for the sake of their own reputations.  What if Bird had said that Hassell was running a child porn ring through her law firm? Would we still be seeing the same response from Yelp and the other petitioners? Because from a purely legal standpoint, she might as well have written something equally outrageous since free speech does not protect defamation, regardless of how extreme or mild the defamation may be.  And although it is true that websites often rightly defend the speech of their users, that motivation simply does not apply in this case because Bird’s reviews became unprotected speech the moment they were held to be defamatory.

Section 230 is Not a Blank Check

The due process piece of this puzzle gets a little deep into the weeds, and I will admit that there may be procedural complaints at play of which I am unaware; but as a general observation, the crux of Yelp’s due-process argument here appears to be based on the same paradoxical premise that the site can be both a speaker and a non-speaker at the same time.  For instance, I offer the following from Yelp’s brief filed in 2016:

“The court reached its conclusion only by pretending that Yelp is nothing more than the ‘administrator’ of its website, ignoring Yelp’s role as a publisher of third-party authored speech and its First Amendment right to control its own website. [Emphasis added]

The court of appeal combined its unwarranted rejection of Yelp’s due process and First Amendment rights, with an unprecedented narrowing of the previously robust protection provided by the Communications Decency Act, 47 U.S.C. § 230 (“Section 230”), to deny Yelp the federal immunity it would have received if Hassell had sued it. The court exalted the form of the action–namely, the fact that Yelp was tactically not named as a party—over the plain language of Section 230 and Congress’ clear intent in enacting it to protect websites from actions that treat them as publishers or distributors of third-party content.” [Emphasis added]

In paragraph one, Yelp is a publisher; and in paragraph two, it is not a publisher. Yelp asserts its First Amendment right to control its own website, which is certainly the case; but the liability shield provided by Section 230 is still predicated on the assumption that said control does not place them in the role of publisher (or speaker). But  Yelp seems to be implying that if Hassell had named them in the suit–something she had no reason to do–they would then be defendants accorded a hearing and consequently have been able to argue their Section 230 right to not remove Bird’s reviews.

But nowhere in the statute is there any implication that a website does not have to comply with a court order to remove specific content, whether the site is a party or non-party to a litigation. In fact, the CDA actually began as an enforcement provision—a legislative effort to keep online pornography away from kids. Make of that what you will, but the addition of Section 230 was designed solely to limit the liability of service providers from any harm that may stem from content posted by third-party users. Neither its language nor its intent appears to excuse web companies from complying with generally applicable law; and an injunction directed at a non-party is a generally-applicable, standard form of relief. Website owners have no more right to ignore these orders than the payment processors mentioned hypothetically above.

While I sympathize with some of the principles being argued by Yelp and the other petitioners–particularly those of the news media sites who are both publishers and hosts of third-party content–I believe the arguments being made are seeking a decision that would be unbalanced. Any party that is held in a court of law to be harmed by some conduct should have access to the same remedies in the digital age as in the pre-digital age. Moreover, the cost of causing harm via the web is virtually zero while the cost of proving harm under the law still requires a substantial investment of time and financial resources.  This alone should allay the fears of site owners that the decision of the appeals court in this case potentially swings the pendulum toward greater censorship online.

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Can “Charging Bull” Artist Have “Fearless Girl” Removed?

When the story first broke about the “Fearless Girl” statue, I didn’t pay it much more attention than I had ever given to the “Charging Bull” that the girl now faces in her defiant, wind-blown pose.  I always assumed the bull simply represents the financial industry the same way I assume “The Garment Worker” statue on Seventh Avenue represents the fashion industry.  Then, when “Fearless Girl” arrived, I figured somebody was making a dual statement—one about women in business, the other about voracious capitalism—and my reaction was somewhere between ambivalence and supportive amusement. I liked the spirit of “Fearless Girl” on first impression but had little interest in all the discussion about it.

Of course, one of the most intriguing aspects of art—and perhaps this is even more pronounced with public art—is that context changes everything.  Appropriation art is usually meaningless without context, and there is an extent to which “Fearless Girl” is an appropriation. Credit for making me think about this goes to author/photographer Greg Fallis, who wrote a blog post after getting some social-media flack for saying that “Charging Bull” sculptor Arturo DiModica “has a point” in requesting that “Fearless Girl” be removed from its installation.

This is of course the outer layer of context:  once a work is in the public eye and has been imbued with a particular significance (in this case feminism tinged with anti-corporatism), then any complaint or comment about the work is apt to be distorted by that lens. And woe to the critic as a result.  Mayor DeBlasio’s office, in response to DiModica’s request to remove the new statue, tweeted “Men who don’t like women taking up space are exactly why we need the Fearless Girl.” On this point, I agree with Fallis that the Mayor’s statement is both true and perhaps entirely beside the point with regard to the nature of DiModica’s complaint.  You may not be surprised that it has something to do with copyright. (And spoiler alert:  I don’t think he has a case.)

I didn’t know until reading Fallis’s blog that Arturo DiModica owns “Charging Bull” and that he produced and initially installed the work at his own expense of roughly $350,000.  An Italian immigrant, inspired by the kind of patriotism unique to immigrants, DiModica began working on the bull in response to the malaise that followed a major financial markets crash in 1986.

The bronze, three-and-a-half-ton work took more than two years to produce; and in the early morning of December 15, 1989, DiModica and his friends “dropped” the bull on Broad Street in front of the New York Stock Exchange—a gift to the city that was, as Fallis eloquently writes, “…maybe the only significant work of guerrilla capitalist art in existence.” The NYSE did not appreciate the gift and had the bull removed; but citizens, the Parks Commissioner, Mayor Koch, and the Bowling Green Association worked to place the “Charging Bull” where it has stood ever since, at the northern end of Bowling Green.

For DiModica, “Charging Bull” was not so much a statement about the swaggering bronze balls of capitalism but was meant, according to the artist’s website, as a “gift of encouragement to New York and the world.”  As symbols go, one might consider that the southern tip of Manhattan—originally colonized by the Dutch—is the birthplace of America’s more entrepreneurial, culturally diverse, and free-spirited nature.  So, the bull charging northward out of this part of the city can certainly be considered in a broader context, but let’s face it:  an eighteen-foot bronze bull standing in the heart of the Financial District can no more escape its capitalist connotations than it can run to the Upper West Side to shop at Zabar’s.

Enter “Fearless Girl,” which was made under very different circumstances.  In short, she is an advertisement for a socially-conscious investment product called SHE, offered by State Street Global Advisors with over $2.4 trillion in assets under management.  The girl standing up to the bull was commissioned by this Wall Street firm, conceived by advertising giant McCann, and purposely “dropped” in front of the bull the night before International Women’s Day.  So, it’s guerrilla art-ish—if corporate backing, ad-agency planning, and city permits count as guerrilla.

What Are DiModica’s Rights?

The commercial nature of “Fearless Girl” may or may not sully her relevance in the eyes of the public, but it is central to DiModica’s complaint and desire to have her removed.  Placed in defiance of the bull, DiModica contends, that the girl changes the meaning and intent of his work from something positive to something negative. In this regard, “Fearless Girl” is appropriating “Charging Bull” by changing the context of the original work; but because this appropriation has been done to promote a product sold by SSGA, attorneys for DiModica are considering whether or not to file suit under a law known as the Visual Artists Rights Act (VARA).

Passed in 1990, the VARA is part of the Copyright Act, §106(A), and it primarily concerns the right of an artist to protect his/her reputation by preventing the misuse of his/her name.  Rights pertaining to reputation of the artist rather than those solely focused on the works are referred to as “moral rights,” and they are a particular subset of intellectual property.   The part of the VARA statute that would theoretically pertain to DiModica’s complaint would be the artist’s right to the following:

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right.

According an article by Isaac Kaplan about this possible legal case, attorneys for DiModica will look at both the commercial aspect of “Fearless Girl” and at the fact that the city apparently allowed for an extension of the cobblestone foundation to accommodate the new statue.

If the cobblestone base can be considered part of the original work, this would potentially implicate the VARA statute prohibiting “modification,” but that modification has to be “prejudicial to [the artist’s] honor or reputation,” which sounds unlikely to prevail to this layman’s ear.  Moreover, the original circumstances pertaining to the installation of “Charging Bull” in 1989 appear to indicate that only the bull itself belongs to DiModica but not any vision of placing it on a cobblestone base at the tip of Bowling Green.

I suspect the commercial nature of “Fearless Girl” would also be unlikely to persuade a court that the work infringes DiModica’s rights under VARA, though this argument certainly gets into an area that could theoretically harm an artist’s reputation.  In this case, DiModica’s attorneys would presumably have to demonstrate that the appropriation negatively alters the original “meaning” of the work to the extent that it reflects negatively on the artist himself.

On the one hand, it seems like a difficult argument to make that VARA can protect any artist’s originally-intended meaning in any work; and this seems especially tricky with “Charging Bull.” Once a work is placed into public view, the artist no longer gets to decide how it is perceived; and as indicated above, I think any reasonable person who first encounters “Charging Bull” will make the same assumption I always have—that it is very much a celebration of unbridled capitalism.

If this were not the case, “Fearless Girl” would probably never have been conceived as either “pure” art or advertisement.  SSGA, artist Kristen Visbal, and McCann are all clearly relying on a general interpretation of “Charging Bull” as a symbol of aggressive capitalism in order to provide a context for “Fearless Girl” to be saying anything at all. And it seems clear from public response that this is the context in which “Fearless Girl” has been interpreted.

On the other hand, DiModica’s reputation is linked to how people perceive “Charging Bull,” and it would be tough to argue that “Fearless Girl” is not at least a bit of a fuck-you as well as an ad for a corporation But, commercial or not, is the work truly a gesture at the meaning DiModica originally intended, or is it a gesture contemporaneous with evolving feelings about capitalism and the role of women in the market?  I would argue that it’s the latter and that any artist who puts a sculpture into a public space cannot hope to control how that sculpture may be viewed against the backdrop of history.

Still, if another corporation were to make a more outlandish alteration of the bull for commercial purposes—like a steakhouse chain paints the classic cuts of meat outlines on the bull’s bronze skin and photographs it—that would certainly seem to be actionable under both traditional copyright infringement and VARA statutes. Not to mention city ordinances prohibiting vandalism.

As Fallis points out, DiModica could take his bull and go home; it is his physical property as well as his intellectual property.  This would leave “Fearless Girl” standing up to the southern tip of Manhattan for no apparent reason, although the fun part of that hypothetical scenario is that viewers would begin to apply new and various meanings to the work as a stand-alone piece.  So, in this regard, “Fearless Girl” is not purely a work of appropriation.

For all the fuss, there is at least a whiff of (yep) bullshit about the fact that “Fearless Girl” is defiantly marketing a product for a giant investment firm. Of course, advertising can be art and vice versa, especially in America; and one could make an argument that, for better or worse, this blend of culture and commerce is part of the same spirit DiModica was tapping into with “Charging Bull.” I can certainly sympathize with the artist’s feelings even while I am dubious about his legal standing under VARA.  Moreover, it turns out that I had a lot to say about a story that didn’t initially grab my attention.  Context changes everything.

Posted in Advertising, Art, Copyright | Tagged , , , | Leave a comment

Copyright is Not About Defending Old Models

Photo by DelmasLehman

Pretty much since Napster (1999), tech pundits have been presumptuously lecturing pro-copyright creators about economist Joseph Schumpeter’s principle of “creative destruction.”  This is the observation that the market will naturally produce innovations which will displace existing products or services, often rendering the older models obsolete.  Take Schumpeter, add hubris and piles of money, and you get the “disrupt everything” culture of Silicon Valley—one that is so arrogant that it treats anyone who won’t join the disrupt rodeo as a Luddite and a fool.

Typically, anti-copyright pundits like to repeat the buggy whip cliché, claiming that the individuals and institutions who defend copyright are “clinging to the buggy whip industry while automobiles wiz by them on the highway.”  It’s an effective talking point if nobody’s paying much attention.  And since the internet itself hasn’t exactly helped in the paying attention department, the buggy whip analogy became an even easier pitch with the arrival of social media and the 140-character debate.

It’s a message that even many creators and artists bought up to a point; but the misdirection in the analogy distracts many observers from noticing the false comparison being made.  Because if we stick with the metaphor, then it is accurate to say that copyright advocates do not argue the cause of buggy whips in a world of automobiles; they merely assert that transportation is still in demand, regardless of how people and goods are to be conveyed.

The hidden truth in this faux-Schumpeter exercise is the fact that nothing has actually displaced consumer desire for creative works. We still want movies, books, TV shows, music, etc.  What has changed—and only for a segment of the market—is the means of conveyance for these products. The copyright proponent doesn’t really care whether the CD or vinyl album remains relevant—only that music itself is still in demand.  The principle of creative destruction doesn’t even belong in this conversation (though one could argue that a destructive form of creative thinking is at play.)

Apropos of my recent post When Copyright Criticism is Something Else, it is easy to confuse the subject of intellectual property rights with the efforts of an industry or business to “cling” to market share tied to a fading product. That some record labels sought to squeeze every dollar out of CD sales before their obsolescence is to be expected, but this has little to do with the principle that copyright should continue to protect the makers of music—and should be revised wherever it is failing to do so.  Even the mistakes made by the recording industry, through its stumbling adaptation to the internet, should be viewed as separate from a broad defense of copyright’s purpose.

The buggy whip analogy, in this context, is a lie.  And what’s most galling about this particular lie is that it is still aggressively evangelized by the one industry best suited to exacerbate the non-competitive trends that have shaped (or mutated) the American economy since at least the 1980s. The internet industry promises Schumpeter-like results—a vow to repeal and replace, if you will—for authors of creative works, if they are willing to abandon traditional notions of a property interest in their work. Not only has this proven to be a con in the world of creative arts, but the industry’s influence, even among tech entrepreneurs, hardly makes a compelling case for fostering competition and innovation.

A recent article in The Economist reports on a summit held at the University of Chicago, where academics have begun to rethink the state of competition in the American market resulting from the trend away from regulatory influence that began nearly 50 years ago. “Those that make a high return on capital can sustain their returns for longer, suggesting that less creative destruction is taking place. The number of new, tiny firms being born is at its lowest level since the 1970s,” the article states.  A little later, the article says the following about Big Tech:

“An analysis by The Economist in 2016 suggested that about half the pool of abnormally high profits is being earned by tech firms. The big five platform companies—Alphabet, Amazon, Apple, Facebook and Microsoft—earned $93bn last year and have high market shares, for instance in search and advertising. They are innovative but sometimes behave badly. They have bought 519 firms, often embryonic rivals, in the past decade, and may stifle them. The data they gather can lock customers into their products. They may also allow firms to exert their market power “vertically” up and down the supply chain—think of Amazon using information on what consumers buy to dominate the logistics business. Investors’ sky-high valuations for the platform firms suggest they will, in aggregate, roughly triple in size.” [Emphasis added]

The internet industry presents its products and services—and frankly its ideology—as the antidote to decades of competition-killing in the market; and a big bullet point in this message is that a legal framework like copyright is an obsolete barrier stifling your potential. It’s an economic fairy tale meant to imply that if it weren’t for copyright being wielded by big corporations, you would have an easier time becoming the next YouTube star or killer-app developer. If that sounds like an exaggeration, I’ll remind readers of the time Julie Samuels of the EFF said in context to the “future of copyright” (2013) that “We want a thousand more YouTubes.”  I’m not repeating this silly declaration to pick on Samuels per se, but to highlight the fact that copyright advocates are frequently accused of standing in the way of absurd projections dressed up as legitimate market potential.

It is a political tactic—not a serious economic discussion—to predict an impossible outcome and then blame a group or a particular legal regime for preventing that outcome.  And I am intrigued by the extent to which so-called progressives fall for this narrative given how similar it is to the false argument that “all regulation is a barrier to jobs and prosperity.”  There seems to be a blind spot to the reality that the industry, which insists that copyrights are stifling opportunity in the digital age, comprises the companies with some of the worst track records for fostering any innovation they do not own.

It would be wrong not to include global media conglomerates (i.e. major copyright holders) in the universe of entrenched corporations that have benefitted from this trend of consolidation.  No question they have–even to the extent of self-parody as when Tina Fey’s series 30 Rock (2006-2012) consistently lampooned the relationship between product giant GE, its network NBC, and the late-night comedy show Fey’s character writes. But the deregulatory policies, dating back at least a half-century, which have resulted in some of the ill-effects of mega-mergers and massive consolidation, cannot be blamed on copyright law, even if copyright plays a small role in that larger narrative.

For individuals—especially artists and creators—to abdicate copyright in response to  corporate domination is as irrational as giving up the right of free speech because we don’t like the SCOTUS ruling in Citizens United.  Copyright is one of many policy areas in which we must decide either to continue tweaking the system or to abandon the underlying principles altogether.  By inappropriately invoking Schumpeter in this debate, the internet industry seeks to disguise the fact that it has roughly the same attitude toward copyright’s protection of creators as the extraction industries have to environmental law’s protection of the biosphere.  Perhaps it’s time for copyright skeptics to recognize that the most outdated aspect of this whole conversation is their stupid buggy whip analogy.

Posted in Copyright, Economics | Tagged , , , , | 3 Comments