10 December 2004

One of my principle theoretical concerns in intellectual property is a very minor extension of droit morale: Who is the "author" or "inventor" of a creative work or invention? Photography provides some particularly pointed examples, since its history is clouded by almost interchangeable treatment as creative and scientific. Professor Madison notes an example that further blurs the boundary.

Part of the concern I have is that photographs have, historically, been particularly prone to abusive use of the work-for-hire doctrine. (In fact, copyright ownership formerly vested in the physical holder of the master negative!) Then, on the other hand, we have the controversy over whether photographs of public-domain works of art are themselves in the public domain if they merely attempt to accurately reproduce the work of art. The distinction between sculpture and so-called "two-dimensional" art, such as paintings, isn't all that persuasive. Much "painting" depends upon surface textures for its effect, which itself begs the question before we introduce mixed-media works.

Now throw in the incompatible (and insane, for that matter) differences between "inventorship" and "authorship" under US law; mix in some WTO, European, and Japanese variations; and put yourself in a rubber room for the weekend. The distinctions really are insane. Inventorship, for example, is far more vested in individuals than is authorship, while the "market identity" of the products of their intellectual labor is more strongly identified through authorship than through inventorship. Perhaps an example will make this clear: George Eastman invented the first consumer-oriented camera, and received a patent for it (U.S. Pat. No. 388,850, 04 September 1888). He sold it as the "Kodak" camera; and that name, with all of the innovations since, are the identifier for the camera and its film. On the other hand, the recent LOTR films are identified by reference to the author (J.R.R. Tolkein) or director (Peter Jackson), not the production company (Wingnut) or distributor/studio (New Line). Now throw in considerations of trademark and unfair competition, which govern the "real" nature of "branding", and… oh, you already went to the rubber room? Good for you.