Monday, March 5, 2007

When Copyright is like Trademark is like Moral Rights

Last week I spent a nice evening at the Arts and Entertainment Law Journal's 25th Anniversary party. My invitation was by dint of my having had an article published therein.

At some point during the festivities the current editors of the journal approached me with a waiver allowing them to put the article (full text) online. (No link, because I don't think the site's up yet.) I had already granted the necessary permissions by email, but they - wisely in my opinion - wanted a signed document to the effect.

I signed off with only a cursory glance at the (admittedly short) document to make sure nothing was being made exclusive. And I joked to my neighbor that as an IP lawyer, signing something so blithely should have sent up some red flags.

But further discussion brought out an interesting point. With regard to "regular" writings, the value the Constitution and the copyright laws protect is essentially a sort of traditional sales value made intangible. That is, I have something, you want it, and I want to get paid for it; in a situation where you're unwilling to pay, I'd be fine with you not being able to get it.

With regard to legal scholarship (and a few other contexts), however, I thought it interesting that the model is flipped. I have something, and I'd love it if you'd read it. Really, please. And if you think it's smart or interesting or worthwhile, pass it on!

The value to the author inheres in the connection of the author's name to the article and the ideas in it. An author doesn't expect you to get paid for the right to read the article, or even to riff on the article. But he or she would like to get paid for being the person who thought those thoughts and expressed them, presumably because it indicates an ability to think other, similar thoughts and express them similarly well.

As long as properly cited and not otherwise passed off as another's, an author generally won't be husbanding the six exclusive rights so exclusively.

What is important to an author, though, is the source-identification aspect of the article and its use. That is, I really want the article connected to me and my name/identity.

And in that sense, it's neat how copyright concerns fold into trademark concerns; particularly the traditional (non-dilution) sorts of trademark concerns.

Taking that a step further, though, I thought it was cool how that sort of copyright/trademark overlap led directly to a set of concerns that look very much like moral rights.

An author's interest in having his or her name identified as the source of an article, and no one else's incorrectly identified tracks nicely to Attribution/Paternity; the author's interest in having that work represented in such a way as to accurately reflect its original meaning tracks similarly to Integrity. (See, Berne article 6bis.)

I thought it was interesting to see the flow as copyright implicated trademark implicated moral rights.

--Ben D. Manevitz

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