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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Friday, February 16, 2007

Me Am Rite Good! So Gimme Patent!

I wanted to shamelessly promote my recent publication:

Manevitz, Ben D., What's the Story with Storyline Patents - An Argument Against the Allowance of Proposed Storyline Patents and for the Rejection of Currently Pending Storyline Patent Applications, 24 Cardozo Arts & Ent. L. J. 717 (2006).

SSRN Link:

Consider this post (and the comments thereto) space for feedback on the paper and its subject.

I understand if you don't want to read the whole paper. (The last section is a lot of fun, though the most narrow legally.)

Essentially, this guy has come up with a Brand! New! Idea! where he wants to patent storylines. Yeah, you read that right. Just to be clear, the website is As in patenting plots. He builds his argument on the foundation of software and method patents, and what he claims is the demise of the printed matter doctrine. Knight's gone so far as to apply for a number of patents under the theory.

My paper proceeds in three parts. First, I argue that plots are not (and can not be) proper subject matter - a storyline is not a "useful art" as required by the Constitution and a storyline can not satisfy the constitutionally grounded utility requirement of the patent statute. Second, I argue that storyline patents should be disallowed as a matter of policy; allowing such patents would do violence to the patent/copyright bargain, and allowing such patents would place an enormous burden on the courts and the PTO in exchange for only the slimmest possible benefit. Finally, I argue against the particular storyline patents that Knight has filed, looking at specific novelty/obviousness issues.

I also spend a little time talking about the printed matter doctrine, and the reports of its death.

I do have some ideas that didn't make it into the paper, and I've got some other thoughts on the subject that I'd like to poke at some more, but I'll do that some other time.

For now I just wanted recommend the article to you. Read it, know it, love it, cite it often, laminate it and put it under your pillow at night or otherwise fetishize it... whatever.

Have a good weekend.

--Ben D. Manevitz

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