An intellectual property trifecta

Look to these three books for a balanced history of disputes

Intellectual Assets

Kevin Parks

Kevin Parks is a member of Leydig Voit & Mayer and represents clients in a wide range of copyright and trademark matters. He teaches as an adjunct professor at The John Marshall Law School and is the author of “Music & Copyright in America: Toward the Celestial Jukebox” (ABA).

Compelling legal historical writing is hard to come by, but for intellectual property buffs, the cup has recently runneth over.

First, legal historian and UCLA law professor Stuart Banner has authored a brilliant overview of property law, “American Property: A History of How, Why and What We Own” (Harvard University Press). A dogged researcher and lucid, plain-English writer, Banner moves capably among a broad range of subjects, exploring types of property, concepts of ownership and the manner in which they have come in and out of fashion over the course of American history.

The author’s engaging narrative style brings typically mundane topics to page-turning life as he recounts historical developments in the ownership and regulation of land itself, the progression in types of “home” ownership as well as the recognition of intangible property, from traditional intellectual property to the more nebulous notions of rights in “good will” and personal fame and celebrity. Along the way, Banner establishes a foundation for exploring the property-rights issues confronting us today: Are plants, living organisms, or our own DNA subject to private ownership? Will the explosion of information in cyberspace lead to “the end” of intellectual property?

In addressing these quandaries, Banner sidesteps theories of God-given or “natural” property rights in favor of a more practical approach, positing that “property is not something that has a true nature. It is a human institution that exists to serve a broad set of purposes.” Banner convinces us that all property is “intellectual” — composed not of things but of “bundles of rights,” the intricate web of rules and relationships among people. As such, the “scope and strength of property rights change here and there, according to conditions.”

Property rights don’t stand the test of time, according to Banner, they move and change with it, part of a fluid process shaped by society. In short, property is a means to an end. Indeed, each of us plays a role in defining the boundaries of American property, and in so doing so, we define ourselves as Americans and tell the larger story of America.

For copyright and literature enthusiasts, Tulane University Law School professor Robert Spoo has published “Without Copyrights: Piracy, Publishing and the Public Domain,” part of the Oxford University Press’ modernist literature and culture series. In addition to his legal pedigree, Spoo holds master’s and doctorate degrees in English from Princeton University and served as editor of the James Joyce Quarterly, making him uniquely qualified to take readers on a revealing tour of late 19th and early 20th century copyright law, using the experience of Joyce’s “Ulysses” as its legal centerpiece.

Had Joyce been an American, his 1920s masterpiece would have been fully protected by U.S. copyright (and still valid even today, assuming proper renewal). But as a British author, Joyce was on the wrong end of then-isolationist U.S. copyright policy, leaving his works at the mercy of bold entrepreneurs such as Samuel Roth, who worked along the fringes of the public domain, publishing unauthorized excerpts of “Ulysses” and dozens of other works by Joyce, Ezra Pound and the leading lights of the modernist movement in literature.

In learning of Joyce’s Herculean efforts to enjoin Roth’s activities, we are introduced to a rogue’s gallery of authors, agents, lawyers and the vast system of “trade courtesy” (an unwritten code of etiquette among established publishers) designed to silence lawful “pirates” from flooding the American market with cheap, unlicensed works. Spoo’s strengths lie in relating complex intellectual property issues in clear and understandable terms and in identifying the principled arguments, humanity and passion existing on both sides of the public domain divide. The boundaries of the public domain remain a fierce battleground today. Spoo’s balanced historical writing informs the current debates, serving an important function in the ongoing struggle to achieve a copyright policy that is right for our time.

Finally, for music copyright aficionados, intellectual property attorney Gary Rosen has served up “Unfair to Genius: The Strange and Litigious Career of Ira B. Arnstein” (Oxford University Press), a playful romp through pop music history that reveals the sad and twisted tale of the most prolific and least successful copyright plaintiff in history. Rosen first encountered Arnstein’s name in copyright case law, then followed the thread down a fascinating rabbit hole that led him into the underbelly of the midcentury music business.

Arnstein was moderately successful as a composer of parlor songs and Yiddish folk tunes, but his fortunes flagged as the songwriting machinery of Tin Pan Alley took hold in the 1920s, then blossomed into the Golden Age of American popular song, led by songwriting superstars such as Cole Porter and Irving Berlin. Arnstein lashed out with litigation against the most successful songwriters of the era, based on the paranoid belief that nearly every new pop song was derivative of his own fundamental, foundational compositions.

Arnstein never won a case, but his loser’s legacy is impressive nonetheless as it includes copyright decisions by judicial luminaries such as Learned Hand who have had a lasting impact on music copyright jurisprudence. In the hands of a capable storyteller, this fertile history comes to life, revealing the individual personalities behind the events and court decisions and illuminating the broader cultural and technological forces that drove the music business in the first half of the 20th century.