NOVEMBER 3, 2019
I’VE BEEN AN intellectual property lawyer for over 30 years. As a result, I see intellectual property in a lot of places where others may not. I can’t read a “patent pending” label without thinking: “Hmm … patent claiming what?” I can’t watch a movie without wondering what clearances were sought, if any, for that artwork in the background, or whether there was a product placement deal for all those Apple computers in the corporate headquarters scene. I’m familiar with the more well-known fascinating IP conflicts, such as the trademark dispute between Apple computers and Apple Records when suddenly music and computers converged, and the seemingly endless copyright litigation over Led Zeppelin’s “Stairway to Heaven.” But those are the well-known ones, the ones you see in popular media. Fascinating IP stories abound in real-life things. There are IP stories in every piece of art, every invention, and every brand. Less known are the IP stories in the hidden, the antique, and the ordinary. A History of Intellectual Property in 50 Objects unveils those stories in a delightfully captivating and insightful way. Not since The Last Days of Night, Graham Moore’s wonderful fictionalized biography of Paul Cravath and the Edison/Westinghouse light bulb patent wars, has an IP book so charmed me. Authored by such IP law luminaries as Jane C. Ginsburg, Jonathan L. Zittrain, and Adam Mossoff (to name just a few), each chapter of 50 Objects explores the interesting IP claims attached to an “object,” as well as its ramifications and place in history.
Although titled a “history” of IP, the book is by no means an origins-to-present-day telling of the history of intellectual property law as so many other equally wonderful books are (The Illustrated Story of Copyright by Edward Samuels being one of my favorites). Instead, by recounting the objects’ individual stories, the book lets the reader connect the dots. The excellent introduction and user-friendly color-coded organization by editors Claudy Op den Kamp and Dan Hunter help enormously in this regard. What do Tempesta’s Map of Rome, Barbie, and the Post-It have in common? What’s the connection between the Kodak camera and today’s debate about deep-fakes and privacy rights? How did Uncle Tom’s Cabin propel the United States to embrace cross-border copyright recognition? How did the inventors of Viagra help identify a previously unidentified medical condition? What do Maori ta moko cultural experts think of Mike Tyson’s tattoo? Read this book and find out.
Op den Kamp and Hunter have brilliantly selected an array of authors who are each both highly knowledgeable and provocative when discussing their “objects.” Marie Hadley’s chapter on Mike Tyson’s tattoo is illustrative. Hadley is a law professor and PhD researcher in the Faculty of Law, UNSW Sydney, where she researches cultural appropriation claims and policies around traditional knowledge and indigenous visual imagery. Hadley has a background not only in law and intellectual property, but also in the fields of crime policy and social inclusion. From this rich perspective, she tells the story of the infamous Whitmill v. Warner Bros. copyright infringement lawsuit involving Mike Tyson’s tattoo in the movie The Hangover in a surprisingly fresh new way with new details unfamiliar to most IP practitioners and entertainment lawyers. Rather than re-tackle the legal debate about whether the use was a fair use, or whether the claim to the tattoo would violate the 13th Amendment (themselves interesting legal issues, no doubt about it), Hadley’s chapter instead explores the tension between cultural and traditional knowledge protection advocates and the claim of intellectual property in an allegedly original creative design. Under Hadley’s intriguing pen, she puts us face to face (no pun intended!) with the question of where to put an artistic copyright claim born of Western philosophical tradition protecting the rights of authors against its own colonial heritage. Complete with wonderful images of Tyson, The Hangover, and examples of Maori ta moko artistry, the chapter dives deep into the origins of the art form, traditional norms around sharing and exploiting it, and the debates within those topics, which serve to both educate the reader and inform in what direction future policies about traditional knowledge should follow.
Those of us with strong opinions on today’s “selfie” culture or the #MeToo movement will appreciate Professor Jessica Lake’s chapter on the Kodak camera. Like Hadley and many other authors included in the book, Lake’s take on Kodak’s breakthrough invention is less a traditional intellectual property law point of view but more a sociological commentary. Lake explores how the Kodak camera, suddenly in the 1800s portable, inexpensive, and thus accessible to the masses, became an instrument used by men to photograph unsuspecting females, even leading to the trafficking of doctored photographs consisting of the faces of young high society ladies pasted onto indecent images of naked women (sound familiar?). Lake explains how photography offered a radical new way of representing and defining people, particularly women. She writes:
No longer were individuals simply framed by the stories told or opinions held about them by others, by their social status or the conditions or circumstances of their labor; or with the manners or display they affected in public space. Now, visual images could define and determine a person.
This led, Lake argues, to strides in women’s liberation as well as to the recognition of a right of privacy under common law. The Kodak camera and the case brought by comic opera star Marion Manola against a photographer who had snapped a photo of her onstage wearing a revealing costume were cited by future Justices Warren and Brandeis in their seminal article “The Right to Privacy,” published in the Harvard Law Review in 1890. This article, warning of the societal dangers posed by modern innovation and technology, is credited by some as the most influential law review article ever published. We are all, to some extent, familiar with the continuing evolution of the right to privacy in American jurisprudence. To read how it was in part shaped by the Kodak camera in 50 Objects is a history lesson that should not be missed.
There is so much more in this wonderful collection. Its breadth is wide, and each chapter concise yet deep. “Fashion Law” gets a shout-out in Professor Jeannie Suk Gersen’s chapter on the Chanel bag, full of beautiful photographs, including those of Brigitte Bardot and Princess Diana with their Chanel bags. Gersen compares Coco Chanel’s tolerant attitude toward copyists: “Let them copy. I am on the side of women and seamstresses not the fashion houses,” with the change in attitude toward copyists (now called “pirates”) by Chanel, Inc. in the 1980s. Regarding piracy, the most copied painting in the world, da Vinci’s Mona Lisa, and the copyright protection it lacked, is explored in Professor Andrea Wallace’s chapter on the masterpiece. The internet, arguably one of the most complex technologies ever invented, is brilliantly compared to a simple hourglass by Professor Jonathan Zittrain in his chapter on the internet. The intellectual properties involved in apple (the fruit) and rose varieties are explored in equal measure in Professor Jeroen Scharroo’s and Professor Brad Sherman’s chapters on those “objects,” each coming from nature yet subjected to exclusive legal confines.
I’ve expounded only a few chapters of 50 Objects in the hope of whetting a reader’s appetite. I feel this book must be tasted. Organized into small, rich chapters, this book is a perfect small-bites intellectual satisfier. It is one to slip into at any time, to pick up and put down, to engage with, to share with others. It’s a “Did you know that…?” water cooler conversation starter. It is also a book for everyone, no law degree required. Whether you already know a lot about intellectual property or nothing at all, you will love this book.
Dale E. Nelson is a partner at Donaldson + Callif, a boutique firm that specializes in documentary clearance and fair use. Previous to that she spent over 20 years as in-house counsel to Warner Bros., most recently as vice president and senior intellectual property counsel.