Despite its intangibility and occasional comic aspect, intellectual property’s history tells the tale of real events that shaped the lives not only of artists, but of their audience as well. Every reader who wonders if he can lend a book to a friend is affected by copyright law, as is every writer who borrows from Shakespeare, every musician who sits down to play a concerto, every teenager who burns a CD for his girlfriend, and every artist who samples from his field. Though the epic battles waged over counterfeiting the novels of Charles Dickens and Mark Twain did not provoke bloodshed, they were real battles nonetheless, and today we see their echoes all around us — from the unauthorized hacking of the latest Harry Potter novel pre-release, to the retelling of Holden Caulfield’s story via an unauthorized sequel, to David Shield’s new model of literature comprised entirely of sentences taken from other artists and repurposed for a new day.
Today, with the weight of so much history bearing down upon us, we are surrounded by the ghosts of millions of stories we have never heard of, but that would — if we heard them — inevitably remind us of something else. When the library of Babylon holds all the stories that will ever be told, intellectual property law strives to tell us how an artist can still lay claim to originality, and how we must negotiate the tension between an artist’s right to protect his work and another’s right to mine it for inspiration.
In its ideal form, the practice of intellectual property law is a calling intended to ensure the survival of the creative spark. In its less intellectual moments, it concerns such absurd questions as whether a particular shade of blue, or the shape of Mick Jagger’s mouth, can be trademarked. Occasionally, we get to puzzle over whether the form of an object has a meaning independent of its function (e.g., is the ball merely a ball, or does it stand for something else?), or whether a a sound is so distinctive that we associate it with a particular source (e.g., the MGM lion’s roar). And sometimes we engage in fights so seemingly superficial — such as the recent dust up between Christian Louboutin and Yves Saint Laurent over whether red soles for women’s shoes were aesthetically functional and therefore not protectable as a trademark — that we can only shake our heads in despair.
But enough drama.
My intention is to entertain, and this blog is intended to tell tales from the far reaches of intellectual property law. If I manage to put a smile on your face while telling you something you didn’t know before, then that’s as much (or more) than I can hope for. If you like what you see, stick around, because more is on the way.