Property, Persona, Permission

Deven R. Desai, Thomas Jefferson School of Law

Abstract

Information overload confronts us everyday. In such a situation, attention is scarce and the ability to focus attention has value. In short, the explosion of information means we live in an attention economy. As theorist Richard Lanham has posited, the key assets in the attention economy (e.g. writings, images) are part of the cultural conversation which leads to and elevates the importance of intellectual property because intellectual property is the way our society manages such assets. Put differently, authors now have two interests: the copyrighted work and the reputation that travels with that creation as it enhances the author’s ability to focus future attention. In this view authors want credit, and they want control over how a work is used lest such use harm their reputations. Thus authors assert quasi-intellectual property interests (e.g., attribution and the right of publicity) to protect their non-copyright interests in the creations.

Accordingly this Paper examines the nature these interests in an attention economy. Probing the theoretical foundations of the interests shows that the claims are incoherent and unbounded. Indeed, they extend control over creations in much the same way as the Romantic view of authorship, but now this author-centered view expands into trademark or trademark-like claims. Recognizing such interests as legal rights is unnecessary. To do so upsets what Larry Lessig has described as the balance between fostering free (what this Paper calls unfettered) uses of culture and permission-based uses towards an even more permission-based system than is already in place. In addition the premise of these claims ignores historical and literary theory as well as economic theory as advanced by Professors Brett Frischmann and Mark Lemley regarding spillovers—positive externalities generated by access to ideas and information. All of these theories offer a view of creation where one draws on previous works to create and then one’s work fosters the next cycle of creation. Last the Paper finds that even if these quasi-intellectual property interests receive legal recognition, their theoretical foundations show that they are tied to the author and must end upon her death.

This Paper is part of a series of works aimed at investigating the nature and extent of control one may have and/or exert over a work. Previous work set forth the normative theories behind creators’, heirs’ and society’s interests in the works. It found that the nature of the attention economy in conjunction with labor-based and persona-based property theories support the position that in life a creator has strong claims for control over her intangible creations as copyrightable works but that after death such claims vanish. In short, it drew a line between life and death. This Paper examines a different dimension of potential rights during life: the growth of trademark-like claims offered by authors to perpetuate control beyond that which copyright recognizes. As such this Paper explains further the nature of author rights during life as balanced against the nature of creation and creative systems.