ABSTRACT
Individual Branding:
How the Rise of Individual Creation and Distribution of Cultural Products
Confuses the Intellectual Property System
By
Deven R. Desai
Much of the current intellectual property system can be explained as meeting the needs of
a cultural industry based on individual authors who look to corporate entities to mass
produce and distribute cultural products. Today, however, as digital technology decreases
the cost of both the production and distribution of cultural products, individuals have
taken on previously corporate roles. Authors now seek copyright and trademark
protection for their work in ways that expand authorial control at the expense of the
intellectual property system as a whole. This essay argues that these new modes of
generating value may require protection but that the current intellectual property system
is not fully equipped to provide such protection without upsetting the balance between
creators and users. As such this paper seeks to map authors’ new interests as a way to
show where the intellectual property system can meet these new needs or where it must
change. Last given the speed with which technology and this type of production evolves,
the essay suggests that the law may not best way to manage many of these interests at all.
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
Individual Branding:
How the Rise of Individual Creation and Distribution of
Cultural Products Confuses the Intellectual Property System
By
Deven R. Desai
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
1
Individual Branding: How the Rise of Individual Creation and Distribution of Cultural
Products Confuses the Intellectual Property System
By Deven R. Desai
Introduction
That we live in an age of information overload is already a cliché. Nonetheless, it
is true; for digital creation has changed the way we generate and distribute information.1
We now live in a world where large, complex creations such as Wikipedia and open
source software emerge through wide-spread individual efforts rather than through a
single firm choosing to invest in and create an information product. The production of
music and literature has changed as well. Instead of relying on the copyright industry to
manage the production, marketing, and distribution of creative works, artists can take
care of these functions by themselves. So although one could say that any artist is always
an entrepreneur in that she creates a product and tries to sell it, today artists can and often
do take on larger aspects of the business side of their work.2 Because artists are no longer
1
See e.g., YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS
MARKETS AND FREEDOM (2007); but see Paul DiMaggio and Joseph Cohen, Information Inequality and
Network Externalities: A Comparative Study of Diffusion of Television and the Internet, in THE ECONOMIC
SOCIOLOGY OF CAPITALISM (2005) (documenting that age, income, race, and other factors impact whether
all or just a portion of society has the ability to take advantage of these changing modes of production).
2
There is a range of possible business models artists can pursue. Musician and former record label owner
David Byrne’s description of options for musicians could apply to many artistic endeavors. As Byrne has
explained, musicians tend to have six general categories to exploit their work: 1) “the 360, or equity, deal,
where every aspect of the artist's career is handled by producers, promoters, marketing people, and
managers. … The artist becomes a brand, owned and operated by the label, and in theory this gives the
company a long-term perspective and interest in nurturing that artist's career.” 2) “the standard distribution
deal. … The record company bankrolls the recording and handles the manufacturing, distribution, press,
and promotion. The artist gets a royalty percentage after all those other costs are repaid. The label, in this
scenario, owns the copyright to the recording. Forever.”; 3) the “license deal [which] is similar to the
standard deal, except in this case the artist retains the copyrights and ownership of the master recording.
The right to exploit that property is granted to a label for a limited period of time — usually seven years. …
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
locked into a gate keeping world, previously hidden or barely circulated creations are
now available. In other words, it appears that the supply of creative goods (or perhaps
more precisely access to the supply) is less and less of an issue. Generating demand for
these goods now takes center stage. This essay explores two aspects of this new mode of
production: how it arose and the problems it generates. In short, it is precisely the factors
that allow for what Yochai Benkler has called The Wealth of Networks to emerge that
will cause this new system to collapse.
Two Cases To Illustrate the Shift in Value
To begin, consider two cases. In the first case, a company offers a $1,000,000
prize to solve a research problem. They post a specific data set and a specific metric as to
what will constitute a solution. Consulting firms, professors at research universities, and
individuals in their homes expend resources, time and money, to try and attack the
If a band has made a record itself and doesn't need creative or financial help, this model is worth looking at.
It allows for a little more creative freedom, since you get less interference from the guys in the big suits.
The flip side is that because the label doesn't own the master, it may invest less in making the release a
success.”; 4) “there's the profit-sharing deal. … [where] the artist receives a minimal advance from the
label, [assuming someone else covers the recording costs] and [the artist and label] share[] the profits from
day one. [The artist] retain[s] ownership of the master. [The label] does some marketing and press. [The
artist] may or may not have sold as many records as [she] would have with a larger company, but in the end
[the artist can take] home a greater share of each unit sold.” 5) “In the manufacturing and distribution deal,
the artist does everything except, well, manufacture and distribute the product. … [T]he artist gets absolute
creative control, but it's a bigger gamble. … ‘If it's done properly, you get paid quickly, and you get paid
again and again. That's a great source of income.’”; 6) “[A]t the far end of the scale, is the self-distribution
model, where the music is self-produced, self-written, self-played, and self-marketed. CDs are sold at gigs
and through a Web site. Promotion is a MySpace page. The band buys or leases a server to handle
download sales. Within the limits of what they can afford, the artists have complete creative control. In
practice, especially for emerging artists, that can mean freedom without resources — a pretty abstract sort
of independence. For those who plan to take their material on the road and play it live, the financial
constraints cut even deeper. Backup orchestras, massive video screens and sets, and weird high tech lights
don't come cheap.” David Byrne, David Byrne’s Survival Strategies for Emerging Artists – And Megastars,
WIRED MAGAZINE 16.01 December 18, 2007 available at
http://www.wired.com/entertainment/music/magazine/16-01/ff_byrne?currentPage=all.
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
1
problem. Whoever solves the problem will win the $1,000,000. In the other case,
someone writes, and writes, and writes some more. He writes on his blog. He writes
stories that appear in magazines but is paid very little. Finally, a publisher notices his
work and offers to publish his novel. If the author’s books sell well enough, he may be
able to earn a living as a full-time writer. At one level, these cases involve quite different
processes. The first case involves large-scale, coordinated (and possibly collaborative)
effort. That type of effort is usually done by concentrated entities that manage and direct
resources, i.e., firms. The second case requires that one person expend time and resources
to create. And, unlike the way in which a firm generates outputs, the artistic creation is
usually a solitary project (e.g., writing) or involves a small group of collaborators (e.g.,
composing music). Yet, when it comes to making money, the cases appear to have much
in common.
Both map to what one might expect in creative production contexts. Groups and
individuals labor to innovate or create. At the end of the endeavor, they will most likely
earn money based on some type of intellectual property protection. If these cases had
occurred just ten years ago, they would simply be two items lost in the mix of thousands,
if not millions, of creative endeavors. But, today these cases deviate from the classic
pattern.
The first case is based on the Netflix Prize. Netflix uses a system called
Cinematch to “predict whether someone will enjoy a movie based on how much they
liked or disliked other movies. [They] use those predictions to make personal movie
recommendations based on each customer’s unique tastes.”3 Netflix will pay the winner
3
Netflix Prize Rules, available at http://www.netflixprize.com/assets/rules.pdf.
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
2
of the competition $1,000,000, but Netflix requires competitors to share their information
not only with Netflix, but with other competitors.4 Furthermore, Netflix will not claim
exclusive ownership of the innovation and instead take a non-exclusive license.5 The
second case is based on author Cory Doctorow’s approach to making a living as a writer.
Although he managed to break through the first major barrier in the writing industry—
finding a publisher willing to publish one’s book, Doctorow and his publisher have
agreed to have a free version of his work available online in a digital format at the same
time as the publisher sold a traditional hard copy version of the work. As such, one could
pay a hard cover price that ranges from around $8 to $17.95,6 or one could download it
for free.7
In both cases rather than following a traditional approach to the production,
ownership, and distribution of a nonrivalrous good, a different approach is taken. In the
firm context, one firm has created a financial incentive but has shifted to a commonsbased production model. Furthermore, the firm has chosen to take only a non-exclusive
license and has taken away the winner’s ability to fully internalize the benefits of the
work by requiring that the winner “describe to the world how [it solved the problem] and
why [the solution] works.”8 In Doctorow’s case, rather than fight the claimed harms of
digital sharing of copyrighted goods, he has enabled and embraced such sharing. Beyond
that already startling change, Doctorow has encouraged people to remix his creations.9
4
Id.
Id.
6
See Amazon.com page for Cory Doctorow’s, Little Brother, at http://www.amazon.com/Little-BrotherCory-Doctorow/dp/0765319853 (last visited April 4, 2009).
7
See Cory Doctorow Little Brother Download page, at http://craphound.com/littlebrother/download/ (last
visited April 4, 2009).
8
See supra note 3.
9
See Cory Doctorow Little Brother Remix Page, at http://craphound.com/littlebrother/category/remixes/
(last visited April 4, 2009).
5
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
3
Benkler’s work helps understand what is happening in these two cases and the problems
that emerge from them.
Benkler’s World
For Benkler the networked world allows for social production which in turn leads
to enormous benefits. Wikipedia and open source software are two of his key examples
of the way in which a networked world offers new and better modes of production. These
large scale projects thrive because numerous individuals take small amounts of personal
and leisure time and contribute to a large project. In the aggregate a truly wonderful
product emerges. In this presentation of the networked world, creation is dynamic,
ongoing, shared, and small individual acts coalesce into a larger project. So how does
social production function?
Benkler argues that the economics of social production manage two scarce
resources. First, the human factor which encompasses creativity, time, and attention.
Second, the computation and communication resources needed to create and distribute
information products.10 Although there is evidence that computation and communication
resources are still costly to many people in United States let alone the rest of the world,11
this essay focuses on those people who have a decent computer and Internet connection
so that they can create and share information products. That leaves the other scarce
resource where creativity, time, and attention intersect and bound social production.
10
11
Benkler at 107
See DiMaggio and Cohen, supra note 1.
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
4
For many of the examples that Benkler cares about, creativity, time, and attention
pose little problem. Indeed, when one considers Benkler’s paradigmatic examples of
social production, Wikipedia and open source software, his insights map well. An
individual with great or limited creativity or time, can plug into ongoing projects and
contribute as much or as little as she is able. Others will examine the work, approve or
disapprove, and over time the aggregate efforts yield a robust and often better product
than if a firm or individual tried to build the information product using classic market
style production. This system works for large scale projects but leaves open important
questions that flow from the Netflix and Doctorow cases.
Those cases exist in part because of the networked world that Benkler celebrates.
But as examples of smaller, static projects that generate information products, the two
cases force one to ask, what motivates these acts and what constitutes value for these
types of work? Without understanding those questions, these types of production may
wither and die. For, as Benkler cedes:
Children and teenagers, retirees, and very rich individuals can spend most of their
lives socializing or volunteering; most other people cannot. … human creative
capacity cannot be fully dedicated to nonmarket, nonproprietary production all the
time. Someone needs to work for money, at least some of the time, to pay the rent
and put food on the table.
Discrete creations are absolutely reliant on a single individual or just a few of them
having the creativity and time to generate new works. In addition, as Benkler
acknowledges, the explosion of creations and sharing those creations means that the
ability to command attention becomes vital. As this essay argues, attention leads to
reputation which in turn leads to problems. The two cases bear out the relationship
between attention and reputation.
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
5
Netflix has “46872 contestants on 38472 teams from 182 different countries. [It]
has received 38393 valid submissions from 4437 different teams; 56 submissions in the
last 24 hours.”12 How did Netflix harness this type of social production? The Netflix
Prize offers a classic incentive, money, but there is another part to the prize that relates to
attention and better explains why the prize has as many entrants and much activity as
enjoys. One million dollars is of course a good sum of money. Yet, when one considers
that Netflix openly states that the competition focuses on improving the company’s core
business—“connecting people to the movies they love”—and that the company has a
market cap of $2.5 billion, receiving a one million dollar reward while fueling an ongoing
multi-billion dollar business seems ludicrous. Part of the answer as to how this prize
system can work lies in Netflix’s taking only a non-exclusive license for the winning
solution. That allows the winner to exploit the solution at the same time as Netflix. But
the contest also requires that the winner must share the solution with the world and that
requirement undercuts the standard internalization model one might expect to see in this
context. This openness leads to the other part, the key part, where the Netflix Prize rules
state that part of the reward is “the bragging rights.” Participants are gaining reputation as
the contest moves forward. When Netflix awards an annual Progress Prize of $50,000 for
the entry that has made the most progress towards a solution but has not reached the
solution, the results must be shared. When the Grand Prize is awarded for the winning
solution, the results must be shared. It is the bragging rights or reputation that drives a
large piece of the process.
12
See Netflix Prize, Leaderboard, at http://www.netflixprize.com//leaderboard (last visited at April 5,
2009).
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
6
A similar and perhaps more obvious appeal to attention and reputation can be
seen in the Doctorow case. Technologist Tim O’Reilly has described the problem:
“Obscurity is a far greater threat to authors and creative artists than piracy.” The ability to
command attention addresses that problem. Doctorow gives away his work, because that
practice hopefully spreads the word and cuts through the problem of being found. Unlike
many copyright holders, Doctorow even allows others to use his material in fan fiction or
in mashups as long as they do so for noncommercial purposes and attribute the material
to Doctorow. According to Doctorow, people become his evangelists by either sharing
the work or remixing it. In other words, these acts fit within a strategy aimed at furthering
his name recognition and building a reputation which leads people to his work. In the end
this reputation allows Doctorow to earn a living. Doctorow earns a decent sum from his
novels and online writing, but for him those lead to larger income opportunities:
[H]aving my books more widely read opens many other opportunities for me to
earn a living from activities around my writing, such as the Fulbright Chair I got
at USC this year, this high-paying article in Forbes, speaking engagements and
other opportunities to teach, write and license my work for translation and
adaptation. My fans' tireless evangelism for my work doesn't just sell books--it
sells me.13
As Doctorow sums, “I’ve been giving away my books ever since my first novel came out,
and boy has it ever made me a bunch of money.”14
So far it seems that Benkler’s world works well. Benkler’s exemplary large-scale,
ongoing social production endeavors thrive because of contributions from groups and
individuals. And thus far, discrete projects such as specific research goals and writing
like the Netflix and Doctorow cases, seem to tap into Benkler’s world rather well. Yet,
13
14
©ontent (emphasis added)
©ontent
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
7
both cases have the seeds for the potential destruction of Benkler’s social production
model. To understand this point, one must be clear about Benkler’s claims regarding
social production as opposed to market production and his view of what is dangerous.
Benkler is not saying that social production will replace market production. He
does argue, however, that social production is often superior to market production.
Furthermore, according to Benkler, we must be vigilant lest old style, concentrated
control over information re-emerge. In that scenario, large companies find new ways to
assert property rights and control the production, flow, and use of information goods.
Centralized production and powerful information intermediaries re-emerge and shut
down the openness vital to social production. This picture ignores the role individuals and
small groups play in social production. The very same elements that currently offer
creations for free and collaborate across a range of projects are now rising to assert rights
in the value they generate from their work. In other words, those who embrace social
production want some return. The problem is that the law’s mechanisms to protect a key
value in this world are likely to undercut the openness at the core of Benkler’s world.
Indeed, Benkler points to this new value when he describes the scarce resources in social
production.
Recall that Benkler identifies creativity, time, and attention as scarce resources in
social production. Creativity and time are familiar problems in the production of
information goods. This essay argues, however, that in a world with an abundant supply
of information goods, attention as it relates to reputation is of growing importance and
poses serious problems for the future of social production.
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
8
Attention and Reputation
In both the Netflix and Doctorow cases, attention underlies and explains why
production proceeded as it did. The Netflix participants have varying levels creativity and
time to dedicate to the contest. Some spend an hour or so of personal time to compete;
some are at universities and have made the task part of their research; some are at
consulting firms which see the contest as another project among the rest of their business.
And, it is not always the largest team or most academic one that does well. At least one
lone participant managed to take the lead over some of the larger team efforts.15 In the
writing context, Doctorow is competing against the thousands, if not millions, of writers
who have not obtained a publishing deal or who have one but languish in obscurity. Yet,
whereas those without a publisher once had no outlet, today they can put their material
online and try to build an audience. Even after having a publisher, few authors can earn a
living based solely on their writing income.16 Enter attention.
The Netflix prize explicitly calls out “bragging rights” as part of the reward for
winning the Grand Prize. Yet, participants receive some of those benefits for winning the
annual Progress Prize and for placing well on the Netflix Prize Leaderboard.
Furthermore, even without being required to do so, some participants have published
15
See Jordan Ellenberg, The Psychologist Might Outsmart the Math Brains Competing For the Netflix
Prize, 16.03 WIRED MAGAZINE, February 25, 2008, available at
http://www.wired.com/techbiz/media/magazine/16-03/mf_netflix
16
See Tim O’Reilly, Search and Rescue, NEW YORK TIMES, A27, September 25, 2005 (“only 2 percent of
the 1.2 million unique titles sold in 2004 had sales of more than 5,000 copies.”); Sathnam Sanghera, It's not
always good to let the novel out, TIMES U.K., Business 53, February 16, 2008 (“The United Kingdom has
similar numbers: “of 200,000 books on sale last year, 190,000 titles sold fewer than 3,500 copies. More
devastating still, of 85,933 new books, as many as 58,325 sold an average of just 18 copies.”); Martin
Kretschmer and Philip Hardwick, Authors’ earnings from copyright and non-copyright sources: A survey
of 25,000 British and German writers, December, 2007 available at
http://www.cippm.org.uk/publications/alcs/ACLS%20Full%20report.pdf (finding that the majority of
authors must maintain non-writing jobs to supplement their writing income).
DRAFT – 04/17/09
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
9
papers and held a conference about the mathematics behind the contest; all of which has
increased participants’ reputation. Other participants have used the Leaderboard to link
back to their Web sites and build their reputation. Drawing attention to one’s work builds
one’s reputation which can lead to other projects and income. The reputational value does
not immediately generate income. The idea is that as one’s reputation grows, income will
flow, and at a greater rate, later. Doctorow’s case further illustrates attention’s
importance. His understanding of information overload drives his willingness to give
away his work. His commitment to allowing remixes aligns with Benkler’s view of a
dynamic cultural system where creators take from other creators to generate new
information goods.
Thus, the ability to command attention generates value. This fosters a reputation
driven economy. And although it appears that social production eschews intellectual
property protection, intellectual property will not go away. Indeed, as this essay argues, it
will play just as central if not larger role but in new forms.
As rhetorician and theorist Richard Lanham has posited, once focusing attention
becomes vital, intellectual property interests come to the fore, because the key assets in
directing attention are part of the cultural conversation, and intellectual property is the
way our society manages such assets. In other words, there are two ways that a reputation
economy explains the creator’s interest in her works. First, the substance of the work
itself matters for capital consists of “the literary and artistic imagination … [the capacity
to] spin new patterns for how we live and to think about how we live. Capital in this view
DRAFT – 04/17/09
10
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
lies in the “cultural conversation.”17 This capital in the cultural conversation can be
understood more concretely as that which falls under copyright—writings, music, videos,
films, and so on. Second, creators have capital as those who build a brand, reduce search
costs, and capture one’s attention based on one’s reputation. In sum, authors look wellbeyond the copyright interest in a creation to trademark and trademark-styled claims such
as publicity, attribution, and integrity rights as ways to protect the reputational value of
their work. It is this drive to protect reputation that poses problems.
Musicians, athletes, authors, and publishers now invoke trademark rationales to
control, limit, or prevent use of creations in a range of areas. For example, Senator John
McCain’s recent presidential campaign had several problems when it obtained licenses to
use music as part of the campaign, but artists such as John Mellencamp and Heart argued
that the use harmed them as matters of endorsement and false association.18 In the online
context, a soccer player has sued FaceBook because a profile claiming to be his profile
links to a Nazi propaganda site and the player claims that the page presents a false image
17
RICHARD LANHAM, THE ECONOMICS OF ATTENTION 7 (2006). Although Lanham develops the idea of the
Attention Economy, the question of the ownership of information and related questions regarding attention
have received analysis by others. See e.g., Julie Cohen, Examined Lives: Informational Privacy and the
Subject as Object, 52 STAN. L. REV. 1373, 1400 (discussing the idea of an attention economy and claims
that such an economy requires access to personal information to target consumers); Wendy Gordon, On
Owning Information: Intellectual Property and the Restitutionary Impulse, 78 VA. L. REV. 149, 150-157
(1992) (noting the shift from narrow intellectual property rights to broader rights in intangibles and
connecting the shift to the change from a manufacturing based economy to service based economy in which
intangibles play a larger role in wealth); Margaret Jane Radin, Property Evolving in Cyberspace, 15 J.L. &
Com. 509, 517 (1996) (“One ‘thing’ that comes to mind is our attention. Information overload means that
our attention is scarce. Communicators - advertisers and ideologues - desire it. What are the implications
for intellectual property of information overload? Could we make our attention property? Could we meter
our attention and make information providers pay us to listen to them?”). The idea is not lost on those who
command attention. See e.g., Chuck Salter, GiRL POWER, FAST COMPANY, 104, September 1, 2007
(documenting the Web site Whateverlife’s popularity and the creator, Ashley Qualls’ perspective: “‘I have
this audience of so many people, I can say anything I want to,’… ‘I can say, “Check out this movie or this
artist.” It's, like, a rush. I never thought I'd be an influencer.’”).
18
See Mellencamp Asks McCain To Stop Using Tunes, ROLLING STONE: ROCK AND ROLL DAILY, February
8, 2008 (available at http://www.rollingstone.com/rockdaily/index.php/2008/02/04/mellencamp-asksmccain-to-stop-using-tunes/); Chris Wilson, Will McCain’s Heart Stop?, SLATE, Sept. 5, 2008 (available at
http://www.slate.com/id/2199492/).
DRAFT – 04/17/09
11
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
which harms his carefully developed public persona.19 In addition, new creative
endeavors such as mash-ups and non-commercial fan fiction uses are often stopped on
the grounds that such uses threaten brand value.20 All these claims can be understood as
reputational.
In addition, these claims focus solely on the author and neglect society’s interest
in access to and use of the creations. To be clear, as reputation grows in importance, it
appears that some of these claims, especially attribution, serve a vital function.
Nonetheless, given the powerful, individual nature of these claims, it is necessary to
recognize the dangers each may pose by over-extending author’s rights.
Attribution Rights Illustrate the General Flaw in Reputation Rights
To restate, attention and reputation play a large role in the networked world.
Creative work, which normally falls under patent or copyright, commands attention and
as such has a reputation component. One’s work becomes one’s brand or trademark.
Those who use a work in a way the author does not like arguably harm the author’s
reputation or brand. Although an author can obtain a trademark in her name, trademark
does not fully cover the use of an author’s work without the name. As such, one sees
various calls to protect reputation. Whether they are styled as moral rights, attribution,
integrity, or publicity claims, all of these reputational claims create chaos, because they
19
See Chris Matyszczyk, Italian Soccer Star to Sue FaceBook, CNET.COM, February 7, 2009 (available at
http://news.cnet.com/8301-17852_3-10159147-71.html).
20
See e.g., Rebecca Tushnet, Naming Rights: Attribution and Law, 2007 Utah L. Rev. 781, 808 (2007)
(noting how fan fiction may or may not impact an author’s reputation and value); Anupam Chander and
Madhavi Sunder, Everyone’s a Superhero: A Cultural Thoery of “Mary Sue” Fan Fiction as Fair Use, 95
CAL. L. REV. 597 (2007).
DRAFT – 04/17/09
12
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
lack normative foundations and, insofar as they are styled as property claims, reduce to a
demand for more author control. Further, even in cases where a theory tries to limit the
problems of control, the reputation rationale behind much of these claims opens the door
to broad claims of harm without a good countervailing balance. Although moral rights,
integrity, and publicity claims are part of my larger project, given that attribution is a key
way to understand the Netflix and Doctorow cases and seems benign as a simple call to
provide someone with credit, the rest of this essay focuses on attribution to illustrate how
reputational rights undermine the social production that Benkler lauds.
The Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film
Corp.21 has garnered much attention22 and is important to this essay, as it reveals how one
moves from copyright to trademark and attribution. In Dastar a President’s writings were
at issue (though he wrote the material in question a few years prior to being elected
President).23 A publisher, Doubleday, acquired the rights to the work.24 Doubleday then
sold the television rights to a different corporate publisher, Twentieth Century Fox Film
21
539 U.S. 23 (2003).
Accord Rebecca Tushnet, Naming Rights: Attribution and Law, 2007 Utah L. Rev. 781, 783 (2007) (“In
recent years attribution has received susbstantial attention from copyright scholars and activisits, in part
because of the Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp.”). For
examples of such attention see e.g., id.; Tom W. Bell, Misunderestimating Dastar: How The Supreme
Court Unwittingly Revolutionized Copyright Preemption 65 MD. L. REV. 206 (2006) (arguing that the way
in which the decision has been interpreted by lower courts has impacted unfair competition and copyright
law in ways well beyond the matter the decision addressed); Mary LaFrance, When You Wish Upon a
Dastar: Creative Provenance and the Lanham Act, 23 CARDOZO ARTS & ENT. L.J. 197 (2005) (arguing that
“The ultimate holding of the case - that section 43(a) cannot be used to create a quasi-copyright claim in
works with respect to which the statutory copyright has expired - is consistent with the overall federal
intellectual property regime, and is arguably consistent with the current language of section 43(a)” but that
the decision’s failure to address reverse passing off and offers a solution recognizing authors “the right to
prevent others from using an author's name and reputation as a marketing tool to attract customers for
works to which the author did not in fact contribute”; Jane C. Ginsburg, The Right to Claim Authorship in
U.S. Copyright and Trademarks Law, 41 HOUS. L. REV. 263 (2004) (examining U.S. law after Dastar and
finding no room for attribution under either copyright or trademark but proposing such a right be adding to
the Copyright Act); Laura Heyman, The Birth of the Authornym: Authorship, Pseudonymity, and
Trademark Law, 80 NOTRE DAME L. REV. 1377 (2005); and Greg Lastowka, Digital Attribution: Copyright
and the Right To Credit, 87 B.U. L. REV. 41 (2007).
23
Dastar, 539 U.S. at 25.
24
Id.
22
DRAFT – 04/17/09
13
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
Corporation (Fox) which in turn used another corporate entity, Time, Inc., to create the
series.25 Time then assigned its rights in the television series back to Fox. Doubleday
renewed the copyright in the book; Fox, however, did not renew the copyright in the
television series.26 After Fox’s copyright expired, another publisher, Dastar, produced its
version of the series based on the work covered by the expired copyright. In short, the
publisher sought a way to prevent others from publishing of a work once its copyright
had expired. The Supreme Court denied that Dastar needed to attribute the work once it
passed into the public domain.27 In a perhaps curious twist, after the decision, some legal
academics have raised the cry that Dastar neglected the importance of a right of
attribution and that such a right is necessary as a trademark or trademark-like interest.28
Still, the arguments offered to support such a right vary. Even before Dastar,
Professor Roberta Kwall has argued an attribution right is required. 29 The important
distinction for understanding the problems with attribution and reputation addressed in
this essay comes from the way in which Kwall explains attribution interests. Kwall is not
addressing a property interest. Her project argues that copyright and trademark law fail to
address personality or other non-monetary interests with which an attribution interest is
concerned and explicitly grounds the call for an attribution right in “the dignity and
personality interests of the author, and the ability of the author to command her
25
Id. at 26.
Id.
27
Id. at 33.
28
See generally Heymann, supra note 22; Lastowka, supra note 22; but see Ginsburg, supra note 22
(finding that neither copyright nor trademark provide a viable way to offer attribution rights). In contrast,
Rebecca Tushnet examined attribution rights thinking that such a right was necessary and could function,
but upon reflection argued that it does not fit well within U.S. copyright law. See Tushnet, supra note 22.
29
See Roberta Rosenthal Kwall, The Attribution Right in the United States: Caught in the Crossfire
Between Copyright and Section 43(A), 77 WAS. L. REV. 985 (2002).
26
DRAFT – 04/17/09
14
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
reputational due.”30 In addition, Kwall tries to cabin the right and explicitly states that
such rights must be limited to the life of the author.31 Thus Kwall’s view offers a nonproperty way to understand reputational interests. That approach seems to present less of
a problem regarding downstream creation for an author might only be able to claim the
right to credit. Nonetheless, given that the view talks of integrity and reputation, one
might envision a right that allowed an author to restrict use of creative works based solely
on the idea that one’s reputation was harmed because of an affiliation with the new
creator’s work.
In other words, the level of control starts to make the right look like a propertybased right. This problem of property rights and control is seen in attempts to ground
attribution in trademark. For example, two recent calls for a right of attribution have
looked to trademark law to explain the right as a way to fulfill the traditional explanation
for trademark law: reducing consumer search costs and protecting the good will of the
producer of the goods.32 One such call offers a limited trademark approach33 while the
other offers an unlimited and dangerous trademark approach.34
Under a limited trademark approach, attribution acts as an incentive because
authors will gain more for their work as they increase their reputation and that will lead to
greater economic gains.35 In addition, that approach argues that non-economic interests
30
Id. at 996.
See Kwall, Inspiration and Innovation, Inspiration and Innovation: The Intrinsic Dimension of the
Artistic Soul, 81 NOTRE DAME L. REV. 1945, 2003 (2006).
32
See Heymann, supra note 22, at 1383; Lastowka, supra note 22, at 1188; but see Mark McKenna,
Schechter’s Triumph? The Real Shift in Trademark Law’s Normative Foundation, 82 NOTRE DAME L. REV.
1839 (2007) (examining the history of trademark doctrine and arguing that its roots begin in a natural rights
understanding of property and that the modern search costs approach to trademarks cannot claim to draw
on trademark law’s origins for legitimacy but rather must be evaluated on its own terms).
33
See generally Lastowka, supra note 22.
34
See generally Heymann, supra note 22.
35
See Lastowka, supra note 22, at 1176.
31
DRAFT – 04/17/09
15
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
such as fame and a desire to control the quality of the body of work, even if that required
destroying otherwise valuable creations but of inferior quality from the author’s view, are
furthered by attribution as the creator will allow only the works she deems worthy to be
offered to the public.36 Thus attribution seems to further incentives to create and respects
a creator’s choice regarding what will bear her name. Furthermore, attribution may
operate to reduce consumer confusion.37
As such the author argues that trademark law should offer a limited right of
attribution and only apply when attribution marks “meet three criteria: 1) they should be
prominently placed (or deserve to be placed) on the exterior of the work; 2) they should
be placed (or deserve to be placed) there with the hope of establishing goodwill and
driving sales of the product; and 3) they should serve to designate creative authorship to
readers who would care about this authorship.”38 This approach seeks to distance itself
from the moral rights, persona approach to attribution and takes a utilitarian approach39
that “focus[es] on the manner in which authorial attribution practices benefit society, [so
that] we can move beyond” the “zero-sum game in which authors and artists must find
some foothold (ethical, legal, or rhetorical) by which to obtain entitlements from society
that are currently lacking.”40 Nonetheless, the underlying logic of author control is
present in this approach but as an economic claim.
Another commentator argues for an unlimited trademark approach to attribution
that recognizes the creator’s choice in affixing her name to a work or choosing to use a
36
Id.
Id. at 1179-1180.
38
Id. at 1233.
39
Id. at 1180.
40
Id. at 1175-1176.
37
DRAFT – 04/17/09
16
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
pseudonym or perhaps creating under several different names.41 But that commentator
explicitly denies the connection with the author per se. Instead, the idea is that authorship
has a copyright component addressing the fact of the creation of the work (“where the
question is who holds the rights to exploit the text, to what degree, and for how long”)42
and a trademark one, the branding choice regarding what name is affixed to the
creation.43 Under this argument it is the trademark component that justifies attribution, as
under this view the author is “dead” and secondary to the reader; 44 the author is reduced
to a non-being and is merely a mark affixed to a work so that the reader knows what she
has chosen to read.45
At this point one can see that attribution is important to authors. But one can also
see that exactly what grounds such claims and the way they should operate is unclear.
One possibility is a personality-based argument that draws on moral rights theory and is
cabined by duration. Another possibility is a property, trademark-based approach that
tries to draw on a utilitarian model to cabin the claims. Yet another approach attempts to
fit attribution into trademark law and embraces an unlimited understanding of attribution.
If one considers attribution as a subset of reputation, one can see that the confusion about
attribution exemplifies a key problem in the reputation economy. New value and new
interests exist but the law lacks a coherent way to understand and manage just one aspect
See Heymann, supra note 22, at 1394-1412; (“A writer can write under her own name or under a
pseudonym; if she chooses a pseudonym, she can choose one that is plain or exotic, gender neutral or
gender suggestive.” Id. at 1396.).
42
Id. at 1379.
43
See id. at 1379-1380. Elsewhere Heymann has further posited that the interests of copyright and
trademark are separate and that the law can cabin each interest so that copyright will address copyright
interests and trademark will address trademark interests. See generally Laura Heymann, The
Trademark/Copyright Divide, 60 S.M.U. L. REV. 55 (2007).
44
See Heymann, supra note 22, at 1389-1391.
45
See id. at 1414-1432 (presenting trademark law and arguing that an author’s name functions just as a
trademark does with source not being an issue).
41
DRAFT – 04/17/09
17
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
of them let alone the other reputational interests being asserted. In short, as Rebecca
Tushnet has observed there may be strong moral reasons support attribution, but because
there are several perspectives about what the right is, the law may not be equipped to
manage the right.46 In addition, in the social production model several people work
together to create or wish to allow others to remix. Those practices raise large questions
about to whom the attribution goes, the possible related integrity claims, and what
remedies are proper, such that a coherent law-based solution for attribution is
unattainable.47 As this essay argues, so too for reputation in general.
The Problems with Recognizing New Rights to Protect Reputation
Reputational interests have growing and continued importance. Online
communities argue about proper credit. Yale Law School has conferences about
reputation. Dan Solove writes a book on the subject. Performers, artists, and athletes
claim reputational interests are harmed. Articles about publicity, moral rights, and
attribution proliferate. Something is happening here. This essay offers that the emerging
world of individual creation and free sharing explains this focus on reputation. As one
Netflix Prize competitor has stated, “The 20th century was about sorting out supply. []
The 21st is going to be about sorting out demand.”48 Reputation sorts demand. As such
reputation’s value will increase. When that happens, people look to the law for ways to
protect that value. Given that reputation is intangible and in these contexts flows from
creation, intellectual property is a likely place to look for ways to understand and manage
46
See Tushnet, supra note 20, at 792-796.
Id. at 808.
48
See Ellenberg, supra note 15.
47
DRAFT – 04/17/09
18
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
reputational interests. Yet, given how quickly the technology and practices around this
world of social production evolve, offering new IP rights threatens social production’s
dynamic nature. In short, new property rights would ossify and harm the system. Michael
Heller’s work helps understand this point.
Given that reputation has a clearer and increasing value, society may decide to
extend property rights to protect that value. Yet as Heller observes, “[I]f we protect
ownership too much, we reach gridlock.”49 This idea runs contrary to the standard model
offered when examining a commons resource. Usually one looks to “ownership,
competition, and markets—the guts of modern capitalism” to manage such resources.50
As Heller shows that system can also foster wasteful underuse, what he calls the tragedy
of the anitcommons.51 Furthermore, regardless of whether one considers reputation to be
a commons resource, the key insight here is that underuse can occur even with clear
property rights because the content of those rights matters: “Gridlock arises when
ownership rights and regulatory controls are too fragmented.”52 In such situations private
ownership can reach a point where it “destroys rather than creates wealth.” 53 As
intellectual property law is a likely way to protect an intangible asset such as reputation,
one can see that an unquestioned extension of property rights in reputation could lead to a
problem of underuse. Indeed, Heller’s work on anti-commons and gridlock shows how
copyright alone damages a dynamic creative system, because “The fear of copyright
lawsuits casts a shadow far beyond what the law grants—or should grant.”54
49
Id. at 16.
Id. at 17.
51
Id. at 18.
52
Id. at 18-19.
53
Id. at 19.
54
Id. at 15.
50
DRAFT – 04/17/09
19
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
This situation, underuse and new strangling control, is what Benkler worries
about when he speaks of the older copyright industry re-emerging and harming social
production. As this essay argues, however, the same effect follows from giving protection
to the individual and small creator in the form of reputational rights. Remember that both
copyright and trademark interests are at stake in the networked world. Trademark and
trademark-like approaches to reputation exacerbate the problem that Heller identifies in
copyright. Understanding how copyright operates in contrast to trademark helps explain
why.
Copyright can be understood as “a semicommons arrangement--a complex mix of
private rights and commons.”55 The private side “enables rightsholders to appropriate
some of the surplus generated by their investments in creation, development, and
dissemination.”56 The commons side “promotes spillovers. Through a variety of leaks
and limitations on the private rights granted, copyright law sustains common access to
and use of resources needed to participate in a wide variety of intellectually productive
activities.”57 Key aspects of copyright law such as “limited duration” so that work enters
the public domain,58 its “limited scope” including the exclusion of ideas from copyright,59
and defenses such as fair use60 facilitate the semi-commons. But the picture is not perfect.
For example, the contours of one’s ability to discern what is or is not fair use is
not always clear in copyright.61 Indeed, the multiple ways that copyright facilitate semicommons poses a problem because “Users may know that a particular work is
55
Id. at 284.
Id. at 285.
57
Id.
58
Id.
59
Id. at 285-286.
60
Id. at 286-287.
61
See id. at 274-275.
56
DRAFT – 04/17/09
20
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
copyrighted, but that knowledge gives them little sense of whether a particular use of the
work is legal or not, because the idea-expression dichotomy, the filtration of facts and
scenes-a-faire, the merger doctrine, and the fair use doctrine make it hard to tell whether
a surprisingly wide range of uses are permissible.”62 With these points in mind, one can
better understand Heller’s conclusion that “The fear of copyright lawsuits casts a shadow
far beyond what the law grants—or should grant.”63
Trademark and reputational claims such as attribution, integrity, and publicity
present larger problems. Unlike copyright they do not foster the semi-commons as they
lack “leaks and limitations on the private rights granted.”64 This lack poses a threat to the
spillover use of ideas. For example trademark’s temporal restraint is thin as trademark
rights persist as long as the mark is in use. As discussed above, attribution appears
rudderless and unworkable. The right of publicity is a state doctrine with inconsistent
rules regarding the length of its term.65 And some assert integrity claims well after death
of author.66
Furthermore, the reputational claims currently lack theoretical grounding that
might offer limits. As one author has shown the right of publicity is incoherent and seems
to reduce to the idea of a right of autonomous self-definition67 or more simply, control.
62
Id. at 275.
Id. at 15.
64
Id.
65
See e.g., Mark McKenna, The Right of Publicity and Autonomous Self-Definition, 67 U. PITT. L. REV.
225, 271 n. 203 (2005) (discussing varying degrees of protection and duration for right of publicity claims
depending on which state law governs the claim); see also Edward H. Rosenthal, Rights of Publicity and
Entertainment Licensing, 879 PLI/Pat 273, 283-284 (2006) (detailing 17 states recognize a descendible
right of publicity and that the terms are set by either common law or statute and range from 10 years to
potentially unlimited with use).
66
See D.T. Max, The Injustice Collector, THE NEW YORKER, June 19, 2006, at 34 (detailing the how James
Joyce’s estate views Joyce’s legacy and the grounds offered, including integrity, in support of control over
the work)
67
See generally, McKenna, supra note 65.
63
DRAFT – 04/17/09
21
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
That analysis may be accurate, yet it evades what the contours of such control should be
and explicitly leaves issues such as the First Amendment and other conflicts for others to
“resolve.”68 Attribution’s incoherence is seen in debates regarding whether it belongs
under copyright or trademark to whether it is a separate right to what should shape the
right in general. Integrity rights suffer from the same problems. This foundational
incoherence and lack of temporal limits demonstrates that reputational rights threaten
intellectual property’s balance precisely because of the way they can be used to expand
and extend control.
Put differently, by trying to stretch the law to fit these new issues, the law may
protect author’s interests but at the high cost of harming society’s interests. Authors’
rights expand without any counterbalance for society’s interest. And from here Benkler’s
world returns.
Pitfalls and Possibilities to Manage Reputation in a Social Production World
When it comes to culture, Benkler wants to have an open cultural system where
individual and folk creations come to exist alongside and possibly displace the large role
the centralized, copyright industry model currently enjoys. The irony is that now that the
power is shifting or has shifted from the copyright industry to individuals, individuals can
easily ask for the same property rights or new ones as way to protect both the copyrighted
work and the somewhat new value that travels with that work, namely the reputation
value.
Id. at 293 (noting that “other interests” including First Amendment ones may “outweigh the individual’s
autonomy interest” and “leav[ing] to others the job of determining how to resolve the conflicts.”)
68
DRAFT – 04/17/09
22
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
In a social production model, attribution and control over how a work is used can
be enforced. The social production world thrives based on the network and easy transfer
of information. For Benkler that sharing should be unencumbered. Yet, given reputation’s
value and the belief in attribution—let alone other reputational rights—technology could
provide a solution that looks like sharing but has new strings. In that world, one
establishes a digital tracking system for the work. In a benign setting, someone who
failed to attribute would be found and simply told to attribute the work. A more
malignant possibility exists, however, and recent history shows it is more likely to occur.
Because attribution is often understood as a trademark-based doctrine regarding source
and association, attribution protection can be stretched to permit one to demand that
someone remove material because it allegedly associated one with material one did not
like. In short, the mere association harmed the reputation. A similar problem is seen in
recent copyright history.
When faced with free distribution of copyrighted works, the copyright industry
mounted a massive campaign against such sharing. Having seen how technology opened
the door to its problem, the industry looked to technology to close it. The Digital
Millennium Copyright Act allowed for digital rights management systems to be used as a
way to stop downstream uses of copyrighted material. The technological possibilities
offered to police attribution would likely present problems similar to the way DMCA
harms the free flow of information and non-infringing use.69 In its worst form the
tracking technology would be part of a world of perfect enforcement of intellectual
69
See e.g., Andrew W. Appel and Edward W. Felten, Technologcal Control Interferes with Noninfringing
Scholarship, February 17, 2000 (available at ftp://ftp.cs.princeton.edu/techreports/2000/617.pdf)
DRAFT – 04/17/09
23
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
property rights to the detriment of society’s interests in a more open information
system.70
In short, the rise of individual creation and social production leads to a world
where reputation is a vital asset. One should expect and can already see instances where
creators assert not copyright interests but trademark-like reputational interests regarding
the use of their work. Ironically, the same thing that allows for these new modes of
production and new sources of value presents the most dangerous way to protect them:
technology. Once reputational interests come to the fore, especially in a digital context,
policing and enforcing reputational rights requires a low-cost solution. A DMCA-like
tracking system would allow one to provide full information about what rights traveled
with a creation and what uses were permitted. In this world, one could establish a system
where one made continual micropayments and obtained continual permissions to use a
work. Such a solution has a dark side. It leads to what to what Jonathan Zittrain has
called a world of perfect enforcement. Relatively low transaction costs would lead to
almost seamless licensing and control over access and use of a work.
Yet continual licensing and negotiation, even if highly efficient, is not likely the
best way to proceed. For one, it doesn’t map to what Benkler shows is a powerful way to
understand creation. In addition, given that current fair use doctrine over-emphasizes the
market aspect of fair use, a perfect or near–perfect enforcement system for reputational
rights opens new questions regarding what fair use would be for those rights as well as
for copyright.
70
See JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT (2008).
DRAFT – 04/17/09
24
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
Conclusion
Thus we are left with a conundrum. The new world of networked production is
the foundation for highly entrepreneurial activities. As Benkler documents, the twentieth
century model for information production is giving way to fascinating large group efforts.
In addition it empowers individuals and small groups to engage in creation and take
entrepreneurial steps to market and distribute those creations. Yet, rather than corporate
entities recapturing the system which is the fear Benkler identifies, it appears that the
very individuals who were part of overthrowing the old system are demanding old and
new rights so they can capitalize on the value they create. This shift presents problems
regarding the contours of the new, more powerful rights and how to enforce them.
As a general matter, whenever a new value is identified, people will seek ways to
exploit and protect that value. Asking the law to protect that value can lead to new
dominance by one group so that a previously open, competitive, and dynamic system is
captured by one group. The networked world has unleashed creative, entrepreneurial
forces and turned reputation into a key currency in that world. As people seek to exploit
and protect that value, they will understandably look to the law. Whether the law is the
best way to manage a new source of value is questionable. One must understand the
system within which the value operates and understand what happens if the law provides
rights and recourse regarding that value. Without such analysis, the law can privilege one
interest within the system to the detriment not only of others in the system but the system
itself.
DRAFT – 04/17/09
25
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION
As such this essay has sought to identify a key factor in the social production
systems: attention and how it leads to reputation. Given that technology and value shift
rapidly in the networked world, using the law to recognize and entrench rights seems to
be an error. That move could easily calcify what so far has proven to be a source of
productive and evolving business models. In this context, enforcement mechanisms
backed by law, although seeming to protect a previously disempowered group in the
information production system, namely individuals and smaller creators, will likely only
result in a shift in power from a concentrated copyright industry to a diffuse one.
Furthermore the path to that result will require a technological solution with large
consequences both for whether social production systems can continue as they do today
and whether broader interests such as fair use and the free flow of information will be
met. In short, society will be asked to and may have to find a way to protect value in the
networked world. Nonetheless, society should be cautious before using the law in this
context for such a move could easily destroy the very system it is asked to protect.
DRAFT – 04/17/09
26
PLEASE DO NOT CITE OR CIRCULATE WITHOUT AUTHOR’S PERMISSION