Journal of Civil & Legal Sciences
Open Access

Centralization; Influential Courts; Communication; Society; New York

Introduction

From a utilitarian standpoint, the right seems senseless. It is not necessary to induce people to cultivate distinctive identities. It encourages people, once they have become celebrities, to coast on their endorsement incomes rather than continue to provide the public the services that made them famous. And it wastes social resources by inducing excessive numbers of adolescents to seek fame. Nor is the right justified as a reward for labour. Often, fame results from luck, fickle public tastes, or the efforts of third parties more than it does from the efforts of the celebrity. In any event, celebrities are adequately remunerated in other ways for their labour. If protecting personhood were one's goal, the right of celebrity would be a poor way to achieve it. The right protects the ability of celebrities to make money from their personal ability not particularly close to the heart of personality development and does nothing to prevent disclosure of intimate details concerning celebrity’s lives. Last but not least, the right of celebrity exacerbates the centralization of semiotic power in the United States and undermines popular control over popular culture. A few influential courts have begun to take notice. For example, in a recent decision, the Court of Appeals for the Tenth Circuit relied explicitly on this emerging body of critical commentary to turn aside a challenge by the Major League Baseball Players to the sale of a set of baseball cards that parodied the league's stars. Because celebrities are an important part of our public vocabulary, a parody of a celebrity does not merely lampoon the celebrity, but exposes the weakness of the idea or value that the celebrity symbolizes in society. In order to effectively criticize society, parodists need access to images that mean something to people, and thus celebrity parodies are a valuable communicative resource [1]. Restricting the use of celebrity identities restricts the communication of ideas. A federal District Court recently employed a similar approach in rejecting a claim by Mayor Rudolf Giuliani that an advertisement describing New York Magazine as possibly the only good thing in New York Rudy hasn’t taken credit for violated Giuliani’s right of publicity. If this style of analysis becomes more popular, the doctrinal tide may well turn.

Discussion

Another example of the deployment of theory to suggest solutions to specific problems comes from my own work. When it is feasible, producers frequently try to market their wares in this fashion. Various doctrines in current intellectual property law limit their ability to do so [2]. For instance, some kinds of patent license terms, though highly effective price discrimination tools, are currently treated as patent misuse. The first-sale doctrine in copyright law prevents a seller from prohibiting low-margin consumers from reselling the copies they purchase to high-margin potential consumers, thereby limiting the power of the seller to exploit the latter. And some aspects of current trademark law concerning parallel imports discourage trademark owners from charging less for their products in poor countries than in rich countries. One's initial reaction is likely to be: no. Charging whatever the market will bear has an unsavoury favour. It smacks of greed and has no obvious social benefit. Immersion in intellectualproperty theory, however, suggests a different answer. At least two of the four approaches reviewed in this essay utilitarianism and socialplanning theory converge to suggest that price discrimination in the sale of intellectual products may in some contexts be a good thing. Recall that one of the objectives of economic theorists is simultaneously to increase incentives for creative activity and to reduce the associated welfare losses [3]. Price discrimination by enabling producers to charge eager consumers more than less eager consumers makes such an unlikely combination possible. By discriminating among subgroups of consumers, a producer is able both to increase his or her own monopoly profits and to reduce the number of consumers who are priced out of the market. In combination, these two effects sharply increase the ratio between incentives for creativity and welfare losses. Finally, price discrimination makes possible greater approximation of the ideal of distributive justice discussed briefly [4]. Usually, the consumers able and willing to spend substantial sums for an intellectual product are more wealthy that the consumers able and willing to spend only a little. Because of that circumstance, price discrimination often enables a larger group of poor consumers to gain access to a product and to pay less than their wealthy counter parts. Widespread adoption of this marketing strategy would thus enable us to approach the goal of providing all persons equal access to works of the intellect. To be sure, price discrimination in some contexts may have substantial disadvantages. The resources expended in establishing and administering price discrimination schemes represent social losses that at least partially offset the efficiency gains described above [5]. Price discrimination sometimes requires the producer to obtain information about the tastes or habits of potential consumers, and the gathering of that information may invade their privacy. In the patent context, the gathering of analogous information concerning the business practices of licensees may facilitate the formation of cartels. Finally, price discrimination might sometimes result in pricing out of the market consumers interested in making transformative uses of intellectual products. Only through careful analysis of the markets for specific sorts of intellectual products can it be ascertained whether these drawbacks exceed the economic and social benefits reviewed above. But a combination of utilitarian and social-planning theory creates a nonobvious prima facie case for the expansion of opportunities for price discrimination. The other reason why intellectual-property theory retains value is that it can catalyse useful conversations among the various people and institutions responsible for the shaping of the law [6]. More specifically, continued explicit discussion of the kinds of themes addressed in this essay would be valuable in three contexts. First, interaction among Congress, the courts, and administrative agencies would be improved. Congress, when it adopts or amends intellectual-property laws, frequently fails to anticipate difficult interpretive questions. If the courts, when compelled in the context of individual disputes to resolve those questions, articulate a general theory they are using to guide their decision making, they increase the likelihood that Congress, during the next general revision of the relevant statute, will be able thoughtfully either to endorse or to reject the courts judgments. Much the same can be said of decision-making by administrative agencies that are then appealed to the courts. Second, explicit reliance upon intellectual-property theories will improve conversations between lawmakers and their constituents [7]. Because the additional time is necessary to encourage additional creativity, Because authors deserve greater rewards for their labours, Because the culture would be worse off if works like Steamboat Willie were released to the public domain, Why should it be possible to register as a federal trademark the sound made by motorcycles bearing a particular brand thereby preventing other manufacturers from making motorcycles that sound the same, Because otherwise consumers will be confused concerning the manufacturers of the motorcycles they are buying, Because a culture in which motorcycles can be recognized from a distance by the noise they make is better than a culture in which they cannot, Because employees of the first company deserve a reward for the effort they invested in constructing a muffler that emits a distinctive guttural sound, By articulating and defending a theoretical rationale for each innovation, Congress or the courts would increase the ability of the public at large or, more plausibly, affected interest groups critically to appraise the change [8]. Lawmakers, in short, would become more accountable. Finally, through continued conversations among scholars, legislators, judges, litigants, lobbyists, and the public at large, there may lie some hope of addressing the inadequacies of the existing theories. For the reasons sketched above, the analytical difficulties associated with the effort to apply the Lockean version of labor theory to intellectual property may well prove insurmountable, but there may be some non-Lockean way of capturing the popular intuition that the law should reward people for hard work. Only by continuing to discuss the possibility and trying to bring some alternative variant of labor theory to bear on real cases can we hope to make progress [9]. Much the same can be said of the gaps in personality theory. The conception of selfhood employed by current theorists may be too thin and a contextual to provide lawmakers much purchase on doctrinal problems. But perhaps, through continued reflection and conversation, we can do better. Conversational uses of intellectual-property theories of the sort sketched above would be different from the way in which such theories most often have been deployed in the past [10].

Conclusion

Instead of trying to compel readers, through a combination of noncontroversial premises and inexorable logic, to accept a particular interpretation or reform of legal doctrine, the scholar or lawmaker would attempt, by deploying a combination of theory and application, to strike a chord of sympathy in his or her audience.

Acknowledgement

None

Conflict of Interest

None

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