“Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases.”
“[T]o be a full individual in liberal society, one must be an appropriator, defined by what one owns, including oneself as a possession, not depending on others, free.”
What is a body, a matter of law? (Rao, 2007; Scott, 1981) Where is the body? Is it integral or severable from the legal person? Is it a commodity? Have our bodies, our selves, and our labour become commodities with a market exchange value? (Radin, 1996) The bioscientific conversion of the body into information has become labelled postmodern. Jean Baudrillard described this postmodernity as ‘hyperreality’. (Poster, 1999) This means that only the viewer only acknowledges the real in its image – reality, as the hyperreal, is “always already reproduced”. (Id.) The process of conversion of the body, the human organism, into genetic information is just such a reproduction. Just as the process of conversion of the personality into reputational information is also such a reproduction. This means that the body need no longer exist only as a corporeal reality, but also as the ‘mirroring’ body, quite literally ‘a body of information.’ (Halewood, 2008)
This represents a further stage of ‘de-physicalization’ of property begun with Hohfeld’s (1917) seminal recognition of property as a bundle of rights. The body is now cast as genetic ‘information’ representing property de-physicalized twice over with intellectual property in bodies, not only is there a bundle of rights in things, but also rights to information about things, or rights to things as information. What has happened to the body reflects what has happened to the economy. Society has moved from one of production to one of information, from manufacturing to information processing. Avatars and their accessories epitomize this shift.
A. Ownership of Persons
Similar to most social institutions, property rights are justified by the benefits they bring to individuals in society. The overriding understanding of this justification for all types of property has been an economic formula. Property rights are the most effective method to produce social wealth. (Hughes, 1998) This same general justification has given rise to theories regarding the non-economic benefits of property. Add to this idea that persons are now all free and equal is supposed to be fundamental to modem liberal legal systems – the free person is not only the basic legal unit but also the very raison d’etre of our law. (Davies & Naffine, 2001) We do not recognise slavery; one person cannot own another. It is regarded as an abomination to commodify another human being in this manner. This was seen most clearly in the case of Moore v Regents of the University of California 793 P2d 479 (Cal. S. Ct. 1990).
The Western democracies outlawed slavery in the nineteenth century, though as Russell Scott (1981) has observed, it has “not all disappeared from the Eastern world or from the African and South American continents.” Although English law never openly tolerated slavery, England was home to a number of slavers who derived immense wealth from the traffic in persons. English slavers, however, wisely conducted their trade in other parts of the world. (Baker, 1990) In the famous Sommersett’s Case of 1772, English law decided against slavery, proclaiming its allegiance to the Enlightenment person and promising a protection for freedom. It was concluded that there was no “positive, or legislative, authorisation of slavery in England.” This point of view accords with the views of two of the leading philosophers of political and legal liberty, Immanuel Kant and John Locke, who, in different ways, both condemned the idea of treating other persons as property. Hegel (1952, trans. by Knox) went on to develop a theory of property linked to self-ownership.
According to Kant (1930, trans. by Infield) “a person cannot be property and so cannot be a thing which can be owned, for it is impossible to be a person and a thing, the proprietor and the property.” Locke, too, was adamant about the importance of freedom from possession by others. In The Second Treatise on Government, Locke (1690, repub. 1967) begins his discourse on slavery by saying that: “The Natural Liberty of Man is to be free from any Superior Power on Earth, and not to be under the Will… of Man … not to be subject to the inconstant, uncertain, unknown, Arbitrary Will of another man.” Further: “This Freedom from Absolute, Arbitrary Power, is so necessary to, and closely joyned with a Man’s Preservation, which he cannot part with it, but by what forfeits his Preservation and Life together. For a Man, not having the Power of his own Life, cannot, by Compact or his own Consent, enslave himself to anyone … No body can give more Power than he has himself; and he that cannot take away his Life, cannot give another power over it.” (Id.)
Thus, according to modern legal orthodoxy, the categories of person and property are now meant to be utterly separate and distinct. To be a person, it is said, is precisely not to be property. It might then be argued that the one concept negatively defines the other. (Davies & Naffine, 2001) I believe that this idea is susceptible of at least one other analysis especially in light of the concept of avatars as extensions of one’s person. The issue is not about slavery, i.e., whether one person can own another, but rather about whether we are in some way our own property. Can a person be property in the sense that he is somehow the proprietor of himself? Can property rights be perceived as a means to protect a personality interest or ‘personhood’ of an individual?
Persons are not property: to be a person is not to be reduced to the property of another. Yet, I would suggest that we own ourselves. If this is so, then to be a person is to be imbued with the idea of property. To be a person is be a proprietor and also to be property – the property of oneself. It can be said that this idea is legal shorthand to help describe the array of rights enjoyed by a modern individual in relation to himself and to others. (O’Donovan, 1997) The story of the emergence of modern law and its reliance on relations based on contract is the story of the man who quite naturally has property in his person, who has self-ownership. Thus he has the right to his capacities and to the products of his labours.
Hegel and Locke philosophies have been studied and argued in modem legal literature to also demonstrate that property and personhood could be connected in at least two ways. Property in things other than oneself has been said to enhance personhood, because it establishes an extended sphere of non-interference with one’s person. Margaret Jane Radin (1982), in a modern rendition of Hegel’s thought, has called this ‘property for personhood’. Property and personhood have also been linked in a more intimate manner by the assertion that persons may also be said to have property in themselves. Common to both approaches has been a desire to show how property interests express and secure the autonomy of the individual and hence their very personhood.
B. Property as Personhood
1. Personhood and the Lockean Justification for Property
John Locke grounded his argument for property in labour. The U.S. Constitution’s framers were familiar with Locke’s writings, and gave expression to some of his ideas in the Declaration of Independence and the Constitution. (Locke, 1690, repub. 1967) The US courts continue to cite Locke, both explicitly and implicitly, in cases of intangible property rights. For example, in the case, Ruckelshaus v Monsanto Co., 467 U.S. 986 (1984), the court held that trade secret rights are ‘property’ protected under the Takings Clause and quoted Locke to support this proposition. Locke’s argument that property rights should be tied to labour is a precursor of the common law doctrine of unjust enrichment. “Unjust enrichment involves the general principle that one person should not be allowed to unjustly enrich himself at the expense of another, but should be required to make restitution for property or benefits received.” (Scott, 2003) Considering Locke’s theory of property, its application to virtual worlds may be appropriate because his conception of property stemmed in part from his belief in an America of boundless, endless land. (Locke, 1689 repub. 2003) It is hardly surprising that his view of property can be pressed into service in this new, seemingly boundless environment called cyberspace, as it has been applied in similar arenas such as domain names. (Kremen v Cohen, No. 01-15899 (9th Cir. July 25, 2003)). Goldstein (1994) suggests that it has more generally been applied in the limitless, largely non-rival, arena of intellectual property. “Bubbling beneath all [intellectual property] … is the intuition that people should be able to hold on to the value of what they create, to reap where they have sown.” (Id.)
Locke thought a man could be a proprietor of himself. For, although he rejected the idea that persons could be the property of others, he explicitly endorsed the idea that we own ourselves – our persons and our labours. “Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.” (Locke, 1689 repub. 2003) Locke’s central property thesis is that “whatsoever [man] removes out of the state that nature hath provided and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.” (Id.)
Locke’s property theory is a theory of dessert from labour; that is, the person who expended labour to render the “thing in nature” into valuable form deserves to reap its value. (Munzer, 1990; Radin, 1982) The application of work and the expenditure of effort, at least in the protean world that was Locke’s ‘America,’ justify the allocation of property interests. Players and avatars might assert they have a property claim in their virtual-world assets based on the Lockean labour-dessert theory. The assets in question emerge from the time and effort of the players. One might claim that playing a game is not labour. This is hardly strong argument in a world where professional athletes are paid fortunes to play games. As anyone who has slaved over a virtual forge will tell you, creating virtual-world property can involve at least as much tedium as any real-world work. In fact, the virtual work performed by users may closely mirror their real-world occupations. (Dibbell, 1998)
Locke notably employed the argument that we all naturally own ourselves as a justification for private appropriation of the commons. His view was that once we mix our labour (which we own naturally) with an object in the commons, we gain property in it. Self-ownership therefore provides a foundation for ownership of the external world. If someone else later takes this new product, this person harms the individual and thereby violates the first tenet. Therefore, the individual deserves a legally enforceable property right to protect the fruits of her labour. (Gordon, 1993)
Locke was unclear as to when someone has signalled her appropriation of property through her labour, i.e., when she has mixed her labour with material from the public domain and thereby created an enforceable right. (Olivercrona, 1974) Some argue that appropriative labour requires altering materials in the public domain in a way “that makes [them] usable and thus more valuable to humanity.” (Id.) Locke did indicate that property ownership should only attach when it benefited, or at least did nothing to harm, the common good: “Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough and as good left in common for others.” (Locke, 1689 repub. 2003)
But a ‘common good’ requirement for property ownership still leaves a lot of room for interpretation. Locke argues that one person’s joining of her labour with resources that God gave mankind (‘appropriation’) should not give that individual a right to exclude others from the resulting product, unless the exclusion would leave these other people with as much opportunity to use the common as they otherwise would have had. (Gordon, 1993) The problem with the above interpretation is that it strays from the personhood justification for property rights.
Locke’s writings on the subject are sparse. As a result, Locke’s common good requirement can easily be interpreted as a concern with public welfare in the aggregate. The requirement is satisfied if a system of property rights for labourers leaves the population better off as a whole than if there were no property rights. (Bartholomew, 2001) The labour justification for property rights does not have to clash with the personhood justification. A better way to interpret Locke’s reasoning is to look at what the labourer (player) is hoping to achieve through her work. Appropriative labour is that which causes the labourer (player) to psychologically identify with her work. (Gordon, 1993)
Karl Olivecrona (1974) argues that Locke perceived the fruits of labour to be an extension of the labourer’s (player’s) personality. “By Property I must be understood here, as in other places, to mean that Property which Men have in their Persons as well as Goods,” Locke explained. (Locke, 1689 repub. 2003) Locke defined appropriation as using labour to make an object a part of one’s self. (Id.) Olivecrona (1974) writes that Locke unequivocally “expressed the idea that the personality is extended to encompass physical objects.” Moreover, appropriative labour could encompass intangibles as well. Locke’s seventeenth-century contemporaries understood property to include abstract things like an individual’s religious faith. Why should property then not include such an abstract thing as virtual property?
In spite of this, all is not settled for a Locke-invoking avatar. Robert Nozick best summarized the standard objection made to Locke’s vision: “If I own a can of tomato juice and spill it into the sea so that its molecules mingle … do I thereby come to own the sea?” (Nozick, 1974; Zemer, 2006) The corporate owners of the virtual world might similarly argue that a player in their world could not claim property in any aspect of the virtual world, since his or her playing actions are little more than releasing tomato juice.
Two standard defences to this objection apply here. The first defence notes that Locke’s theory only grants property where the “labour makes the far greatest part of the value of [the asset].” (Locke, 1689 repub. 2003) If the tomato juice made up the greatest part of the value of the sea, then we might think differently about granting maritime property rights to the tomato juice polluter. Within the virtual world framework, one could conclude that the player cannot claim property interests in the entire virtual world but might legitimately and reasonably claim them in some smaller part – the virtual castle, sword, or breastplate – in which his labour makes up the greatest part of the value. (Lastowka & Hunter, 2004; Raysman & Brown, 2005) This is the tack that Linden Lab’s Second Life has chosen to take.
The second defence to the Nozickian objection is that any property claim in the sea (or any other common resource) applies only to the extent of the so-called Lockean Proviso. That is, the property claim can only occur to the point at which the property interest leaves “enough and as good” in common for others. (Id. citing Gordon, 1993) In contrast to physical resources such as the sea, the provision of property interests in virtual worlds does not reduce other property interests, since the world is essentially limitless. (Id.) I am not suggesting that any particular party should be granted ownership of virtual property, but simply noting that, in itself, the creation of a property right in virtual objects does not infringe on the ability of others to possess virtual objects. As a result, the Nozickian objection fails.
Locke’s philosophy is consistent with protecting player’s avatars and virtual property because it is harmful to take away a part of someone’s personality. When an object has been appropriated and becomes part of the possessor’s ‘sphere of personality,’ writes Olivecrona (1974), “it will be an injury to the possessor to deprive him of it…. For his own person (avatar) is exclusively his own.”
2. Personhood and the Hegelian Justification for Property
Then there is Hegel’s theory of property linked to self-ownership. (Hegel, 1952, trans. by Knox) He argued that in becoming a person one must put oneself into the external world and then re-appropriate the self through the appropriation of objects in the world. Taking the world unto ourselves is our method of completing our subjectivity and individuality, because it involves the purely subjective person externalising their personality and re-grasping it in the form of an external object. (Id.) In other words, a person does not have a concrete existence until she forms a relationship with something external. Self-actualization occurs by acting on an object. (Bartholomew, 2001) Property is ‘embodied personality’. Property is only property insofar as it is occupied by a person’s will. (Hegel, 1952, trans. by Knox) Property gives us the means of forming contractual relations with others. Through ownership we are able to recognise others as owners, and exchange our property. Property is therefore essential to the formation of social relationships.
Hegel’s account of the sovereign individual is therefore quite different from Locke’s. For Locke, the free and complete self-owning individual labours and, through labour, becomes an owner. For Hegel, it is only through the act of appropriation that a person realises their subjectivity, and becomes free: “Personality is that which struggles … to claim the external world as its own.” (Id.) The person therefore does not start as a self-owning entity. (Drahos, 1996)
Hegel did not believe that a person should gain an ownership right in property because of a wish or desire. There has to be some external manifestation of the will in the property; otherwise the property is not really reflective of the owner. (Bartholomew, 2001) One way to manifest one’s will in property is to impose a form on the property: “When I impose a form on something, the thing’s determinant character as mine acquires an independent externality and ceases to be restricted to my presence here and now and to the direct presence of my awareness and will.” (Hegel, 1952, trans. by Knox)
Both personality and property in Hegel’s account are complex entities, formed dialectically. One begins with pure subjectivity and pure objectivity, which may appear to be a relatively simple distinction between persons and the external world of objects. However, persons become self-owning by externalising themselves through the appropriation of objects. The person therefore becomes both pure subject, and object. (Id.) Similarly, the object, which starts as a mere thing, having no end-in-itself, becomes invested with the will and spirit of the appropriator. As long as the person’s will remains in the object, it is property. (Id.) When abandoned, it returns to its former state of meaninglessness, rather like avatars and property in virtual worlds.
Hence, this theory plays out in the virtual world in an interesting way because it draws no distinction between the accumulation of real-world chattels or land and its virtual analogues. To the extent that Hegel’s personality theory justifies private property in land or goods, it justifies property in virtual land or goods. The theory is predicated on the effect of the property interest on human needs like liberty and identity. These are not different just because the property at issue is virtual. (Lastowka & Hunter, 2004)
Margaret Radin (1982) built on Hegel’s property theory to make moral distinctions in property disputes. She explains that ‘personal property’ is bound up with a person. Its loss causes pain that cannot be relieved by replacement. ‘Fungible property,’ on the other hand, is perfectly replaceable with other goods of equal market value. (Id.) She argues that the law should not recognize strong rights over fungible property because it is only held for instrumental reasons; it has no bearing on the possessor’s personhood. Zealous enforcement of property claims should be reserved for personal property. (Id.) Social consensus already deems some property worthier of protection than other property. This distinction between personal and fungible property that explains why we enforce some property claims more strongly than others.
The personhood justification and Radin’s moral scale for property rights may be applied to virtual worlds, and in particular to avatars. Although to some people owning a castle in Britannia or an X-Wing fighter on Tattooine is not a readily apparent form of ownership in the real world, the player who spent a tremendous amount of time and effort designing and building these things would feel that they are an expression of herself (or her avatar-self). When a player expresses ideas, her personality is externalized to the outside world, albeit a virtual world. I contend that the way in which a player lives out her adventures in a virtual world is similar to the way in which an artist/author creates a work of art, as opposed to merely performing with someone else’s monkey. Ownership, even when the owner is no longer acting on the property she created, still fulfils an expressive component. When someone owns something she created – a sword, a song, or an avatar – the public recognizes that person as the inventor of a particular thing. (Bartholomew, 2001; Radin, 1982)
By continuing to hold onto a bundle of rights in her expression, the creator continues to make an affirmative act of personhood. (Hughes, 1998) The most valuable property a person can hold is her own personality. (Hegel, 1952, trans. by Knox) One’s personality is synonymous with the person in one sense, but in another sense it is defined only in its relation to society. “[A] person has a natural existence within himself and partly of such a kind that he is related to it as an external world,” Hegel explained. (Id.) An individual’s persona – the individual’s public image – is a receptacle for her personality. (Hughes, 1998) Some people work on creating a public persona more than others. By endowing the individual with property rights in her persona, the law gives the individual economic protection for the most obvious external expression of her personality. The right of publicity protects celebrities from attempts by others to appropriate their personas. (Beverley-Smith, 2002)
Characters can be as personal to their creators as a public image might be to a celebrity. In this context, I refer to the adjectival form of the word character as defined by Oxford Dictionary (1975) as: “1. Of or relating to one’s character. 2. (a) Specializing in the interpretation of often minor roles that emphasize fixed personality traits or specific physical characteristics: a character actor. (b) Of or relating to the interpretation of such roles by an actor: the character part of the hero’s devoted mother. 3. Dedicated to the portrayal of a person with regard to distinguishing psychological or physical features: a character sketch.” Creators often feel a special relationship with their characters and infuse them with their personality in a way they cannot with other more tangible forms of property. As one author argues: “Creators and owners often identify so closely with their characters, intermingling their own personalities with those of their creations, that they become quasi-parents.” (Helfand, 1992) In this was particularly so for the former stars of Cheers. Host, a bona fide licensee, had placed robots resembling the former stars from the television sitcom Cheers in airport bars modeled from the set. The stars sued for infringement and won. (Wendt v Host International Inc., 125 F. 3d 806 (9th Cir. 1997)) Characters are particularly strong candidates for Radin’s category of ‘personal property’ that should be protected as more of the person is bound up in a character creation than in other ‘fungible’ objects.
Thus when it comes to avatars, personality theory would also seem to be strongly in favour of granting property rights. It is well documented that people feel connected to their avatar, not as a thing but as a projection of their self. As seen earlier, the concept of the cyborg – the mechanical extension of one’s persona – is widely accepted. (Bukatman, 1993) One need only be attacked once in any first-person shooter game to realize how one projects a sense of self onto an avatar. Indeed, some users identify more with their online personas than their real ones. If, as personality theory would have it, property might be justified by reference to the effect on the self, it would seem that there is a normative basis for claiming property in virtual realty, virtual chattels, and, a fortiori, avatars. (Lastowka & Hunter, 2004)
Some have argued that a theory granting property rights in avatars based on the degree to which their creators identify with them does not justify broad alienability. (Lastowka & Hunter, 2004, citing, Reynolds, 2003) Nevertheless, we assume alienability for wedding rings or even nonessential body parts; but there are exceptions to the rule, even in tangible objects. Some are reluctant to consider human life the subject of property law. (Davies & Naffine, 2001) However, that should not apply to computer representations of people, no matter how lifelike the avatars might be. The property interest in avatars would be the property interest in the information which makes up the avatar, the hyper-real human.
Increasingly, individuals are moving online into mediated spaces; just as increasingly more of the physical world is becoming computer-mediated. Virtual worlds are the ultimate embodiment of a computer-mediated world existing entirely within a system of computers. Ubiquitous computing is the future of the physical world being entirely computer-mediated. By examining individuals as avatars in these virtual worlds, they may provide insight into how a future of increasing computer mediation will impact individuals in the real world. Escalating computer mediation of human activity provides mounting possibilities of interference with an individual’s ability to act and be self-constituted. The capability of remotely monitoring and controlling physical objects provided by ubiquitous computing may make it possible to interfere with, and redistribute, personal property rights.
C. Theories of Personal Property
“There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”
Early legal theories described the term ‘property’ as the relationship of a person to a thing. Justin Graham (2002) describes “[t]echnological change [as] ha[ving] transformed nineteenth century conceptions of property as absolute dominion over a physical thing into property conceived as a limited bundle of rights in both material and non-material things.” Later theorists attempted to describe ‘property’ as a complex collective of separate rights that have been ‘bundled’ together for ease of reference. (Id.) Hohfeld (1917) re-conceptualized ‘rights’ as claims and duties that between individuals in society, and argued that property is properly conceived as a bundle of these rights. Thus, property is the relationship of people to each other with respect to a thing. No particular ‘stick’ in this bundle is necessarily essential to make a thing the property of a certain person. The concept is merely a framework for analysing possible rights and obligations. (Mossoff, 2003) These rights and obligations include an integrated unity of the exclusive right to acquire, use, (Barr, 2005) exclude (Loretto v Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982) (describing the right to exclude as “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Quoting Kaiser Aetna v United States, 44 U.S. 164, 176 (1979)) and dispose (Grant, 1995) of one’s things? The complex institutions that have been created around the concept of property are omnipresent in our society today, but the pressing question remains whether there is a theoretical account of property that can sufficiently describe and guide these institutions, especially virtual institutions. (Mossoff, 2003)
Central to the operation of virtual worlds is a property system, with all of the familiar real world features of exclusive ownership, persistence of rights, transfer under conditions of agreement and duress, and a currency system to support trade in these property-based assets. (Lastowka and Hunter, 2004; Fairfield, 2005; Castronova, 2002) In the mid-eighteenth century, Blackstone envisaged property as an in rem right, but attributed to it an absolute status. (Blackstone) Since that time, scholars have disagreed in their interpretation of Blackstone’s conception of the ‘absolute,’ with some regarding it as an anomaly (since Blackstone himself permitted the law to impose limitations on the right) and yet others as purposive hyperbole. (Burns, 1985; Rose, 1998; Kennedy, 1979) The noteworthy aspect of Blackstone’s definition is its identification and use of the element of exclusivity. To Blackstone it was not enough that the individual claimed a power over the resource, it was vital that property also involved the exclusion of other individuals’ rights over the same resource. (Id.) This strikes a major chord with those who live in virtual worlds.
Blackstone’s understanding of property came to form the focus of analysis for generations of positivist scholars including John Austin, Jeremy Bentham and others. The main point lies in Blackstone’s conception of ‘dominion.’ Superficially, there appeared to be a contradiction, given that the concept of dominium in Roman law derived from Roman law’s absolutist (absolute, understood here in contrast to relative rights to possession) conception of ownership, which the common law had consciously rejected. (Birks, 1986) Subsequently, though, the process of identifying in rem rights together constituted this dominion.
At the turn of the 20th century, Wesley Hohfeld (1917) analyzed the concept of a ‘right’ into its respective components of correlative claims and duties between individuals in society. He developed a novel methodology of understanding legal relations, using what he called ‘jural opposites’ and ‘jural correlatives.’ Using a matrix consisting of rights, duties, privileges and a fourth variable (i.e., the no-right), Hohfeld set out to make the case for a consistent model of judicial analysis. He then applied this methodology to the analysis of in rem and in personam legal relations–which he termed, ‘multital’ and ‘paucital’ respectively. The crux of Hohfled’s thesis in relation to property was that property consisted of a large mix of multital jural relations (i.e., rights, duties, privileges, etc.), not all of which could be mapped at any given point of time. (Id.) His analysis of property states that “what the owner of property has is a very complex aggregate of rights, privileges, powers and immunities,” not in a thing (in rem) but rather against other people (in personam). (Id.)
Hohfeld’s model eventually gave rise to what is today known as the ‘bundle of rights’ understanding of property, which grew to be immensely popular among the legal realists of the 1920s and 30s. Max Radin (1938) attempted to understand Hohfeld’s analysis from a realist paradigm. While Hohfeld did not use the phrase ‘bundle of rights’, these later theorists have invariably tended to associate his views on property with the bundle conception. (Id.) The bundle conception basically consisted of the idea that property was a bundle of complex jural relations in rem. To an extent, this bundle conception diluted property of any substantive meaning it may have acquired in legal discourses. Whereas even Blackstone had emphasized the element of excludability, the bundle metaphor merely recognized the ‘right to exclude’ as one among several rights and privileges accorded by the legal system to an owner.
The bundle metaphor, however, has demonstrably been of importance in functional terms, primarily in determining whether something had been removed from the bundle and was therefore short of full-property. It has found extensive use by American courts in eminent domain or ‘takings’ cases: see Kaiser Aetna v United States, 444 U.S. 164, 176 (1979); Dolan v City of Tigard, 512 U.S. 374, 384 (1994). However, it could never answer what full property was, at any given point of time. (Penner, 1996; cf. Merrill & Smith, 2001) As it was, this concept of property emphasized its function and its social relations. In doing so, the doctrine called attention to the more contingent nature of property which, in turn, had been the basis for the contention that property rights should be extended. (Harris, 1993)
Today, theories of property reject the assumption that property is “objectively definable or identifiable, apart from social context.” (Underkuffler, 1990) The focus has shifted to the function of property and the changing social relations reflected and constructed by new forms of property derived from the government. (Reich, 1964) Property in this wider sense included a whole range of intangibles, jobs, entitlements, occupational licenses, contracts, subsidies, and so on, that are the product of labour, time, and creativity such as intellectual property, business goodwill, and enhanced earning potential from graduate degrees. This idea was so prevalent that the analysis derived from Reich’s conception of “New Property” formed the basis of the majority opinion in Goldberg v Kelly, 397 U.S. 254 (1970). In spite of the dilution of these new forms of property since Goldberg v Kelly and its progeny (Bell v Burson, 402 U.S. 535 (1971); Perry v Sindermann, 408 U.S. 593 (1972); Morrissey v Brewer, 408 U.S. 471 (1972)) as well as continued attacks on the concept, the legacy of ‘new property’ informs the concept of property with questions of power, selection, and allocation. (cf. Bishop v Wood, 426 U.S. 341, 347 (1976) (holding that the plaintiff’s discharge from employment with the police department did not constitute a deprivation of a property interest); Board of Regents v Roth, 408 U.S. 564, 578 (1972) (holding that a non-tenured, one-year university teaching position was not a property right); Van Alstyne, 1977).
Reich (1964) argued “property is not a natural right but a construction by society” which echoes in current theories of property that portray the provision of property rights as a range of choices. The rejection of ‘new property’ on the ground that it is derived from the government rather than private sources is ultimately not persuasive, because as Reich (1964) further states, all property is a creation of law. A utilitarian framework of property analysis, which focused on analyzing property in terms of transaction costs and the allocative gains derived from the deployment of the institution itself, has been developed. Much of the scholarship in this area as also the entire law and economics movement can be traced back to the seminal work of Ronald Coase (1960) on transaction costs. This interpretation focuses on issues of relative power and social relations inherent in any definition of property. Hence, property is viewed as little more than a collection of use rights with respect to a resource and one that is capable of achieving allocative efficiency by ensuring the transfer of resources to higher valued uses. (Merrill & Smith, 2001b) While the bundle metaphor represented a form of ‘conceptual realism’, the utilitarian model posits itself as a form of ‘economic realism’–making little effort to understand the institution of property in the form of an in rem right. (Id.)
Virtual economies have created real-world opportunities to get rich. Some denizens of virtual worlds buy virtual property at low rates from those who have no idea what the item is worth, then resell it on eBay for real-world profit. Some make a six-figure U.S. dollar income this way, and one or two individuals may make even more. For example, Julian Dibbell, in Play Money: Diary of a Dubious Proposition, (http://www.juliandibbell.com/playmoney/) wrote: “THE PROPOSITION: On April 15, 2004, I [Julian Dibbell] will truthfully report to the IRS that my primary source of income is the sale of imaginary goods — and that I earn more from it, on a monthly basis, than I have ever earned as a professional writer.”
As seen, the development of virtual worlds allows an opportunity for experimentation with legal relationships, transactions, and obligations that, in the real world, fall within the category of property. The existence of property within these worlds speaks to our inability to imagine any other way of structuring relationships between individuals under conditions of resource scarcity. (Lastowka & Hunter, 2004; Lehdonvirta, 2008) As technology changes, new uses of resources emerge. Property law protects emerging interests in property so that the emergent property interest may be productively used. (Demsetz, 1967; Hardin, 1975) One function of property is the guiding incentive to use resources productively as technology changes those incentives. “If the main allocative function of property rights is the internalization of beneficial and harmful effects, then the emergence of property rights can be understood best by their association with the emergence of new or different beneficial or harmful effects.” (Demsetz, 1967)
Traditionally, the use of a physical object has been viewed as an exercise of the personal property right to use and to the quiet enjoyment of property. (Cunningham, Stoebuck, & Whitman, 1993) One purchases the object and uses it when one wants. The producer of the object does not maintain an interest in it, does not monitor its use, nor exercises any control over it. Most objects of personal property are treated this way. However, with advancing technology, such as virtual worlds and ubiquitous computing, this may change.
The remote monitoring and control of objects is becoming both possible and practical. Technology is developing the capacity to interfere with actions that have traditionally been viewed as exercises of personal property rights. This capacity to interfere with the exercise of traditional personal property rights will enable the displacement of property rights by creating a system in which rights in a physical object can be determined and enforced through technology and contract. For example, the greedy door of Philip Dick’s story. This type of ubiquitous computing may promote a privately ordered system of rights to displace the publicly ordered system of property rights. A similar conflict has arisen in the ubiquitous computing counterpart, virtual worlds, in the context of objects that are not physical at all, but rather in objects that are entirely virtual.
“The information technology of virtual world systems allows for personal property rights in virtual world objects to be both easily reallocated by contract and controlled by a rights management system. Information technology makes the reallocation and control possible on a massive scale through automated means. The application of information technology, of computing ability, to virtual world objects occurs as a matter of course because virtual world objects are creatures of computers; they exist only through and within computers. The characteristics that flow from this relationship between virtual world objects and computing ability mimic the characteristics of physical objects in ubiquitous computing environments. It seems that the same interference, reallocation, and displacement of property rights currently possible with virtual world objects may apply to real world objects with the adoption of ubiquitous computing technologies.” (Boone, 2008)
Between the rise of virtual worlds and the advances in ubiquitous computing technology a deeper examination of personal property rights is required. Are personal property rights traditionally enjoyed by the owner of an object are simply accidents stemming from the physical characteristics of that object? Have these physical characteristics made it impossible or impractical for the producer to monitor the object and control its use after ownership and possession have passed from the producer to the user? Locke’s theory of property ownership is consistent with the views of Hegel and Radin. The products of labour are an extension of the labourer’s personality. Appropriation, the point at which an individual’s property right should be recognized, requires the infusion of the possessor’s personality into an object by expending some labour on it. (Olivecrona, 1974)
Or, on the other hand, are the traditional personal property rights enjoyed by the owner of an object rather than being accidents, instead provide some benefit to society such that has decided to override technology-enabled private ordering in favour of property-based public ordering. Hegel and Radin also argue that property ownership should be linked to personal expressions in objects. Because characters are especially rich in personal expression, their creators deserve protection so they will continue to act on the outside world and not suffer harm from another party’s misappropriation of their personal expression. This is important in a society that is progressively more mediated by technology. Ubiquitous computing may create the ability to interfere with the exercise of personal property rights and, thereby, create the ability to displace property as a rights ordering system.
D. Personhood Interests & Intellectual Property
“Each person identifies with those capacities, physical and mental, to which he had direct access, and we see that this identification affords each person a normative sense of self.”
David Gauthier (1986)
Compelling as the arguments of Locke and Hegel are that people have a property interest in themselves, a deeper problem has been obscured. What constitutes ‘personality’ or a ‘personhood’ interest in a particular piece of property, especially when, as with intellectual property rights, you are dealing with creations of the human mind? The real world appears to be moving towards an economy primarily based on goods which take no material form. Virtual worlds have arrived at this point. As noted earlier, embodied virtuality is also on the rise. Computers are becoming embedded throughout the physical world simultaneously receding into the background and becoming universal in their connectivity. (Weiser & Brown, 1996) Ubiquitous computing has been described as the “colonization of everyday life” by computers and information technology. (Id.) Ideas and information once freed from constraints becomes something which happens in the field of interaction between minds or objects or other bits information or other ideas. They become an action which occupies time rather than a state of being which occupies physical space. As such, there has been an elimination of any predictable connection between creators and a fair reward the utility or pleasure others may find in their work. (Barlow, 2004)
An individual’s personal identification with all of her physical and mental capacities could give rise to personal identification with the intellectual products of those capacities – without any reference to ‘creativity’. For instance, if a person identifies with her own mental capacities, this may cause her to identify first, with the process of using those capacities, and then with the products of those processes. It is possible that someone would identify more with the processes, and less with the product. Both virtual worlds and ubiquitous computing environments are mediated by computing ability which forms the physical link.
Assume that the individual identifies with (1) their capacities; and thereby (2) the processes of using those capacities; and thereby (3) the intellectual products of these processes. One might conclude that step (1) is wrong, that the individual does not have any particular entitlement to identify with the talents with which she is endowed. One might further consider that even the ability to expend effort to be determined by factors outside a person’s control and hence a morally impermissible criteria for distribution. (Rawls, 1971) “The assertion that a man deserves the superior character that enables him to make the effort to cultivate his abilities is equally problematic; for his character depends in large part upon fortunate family and social circumstances for which he can claim no credit.” (Id.)
This counter-argument fails in virtual worlds. Each person has chosen who and what they want to be. They have chosen, albeit from a pre-selected set of criterion, their capacities and the process of using those capacities. The pre-selected criterion is deemed to be an underlying intellectual product if the world creator and protected by copyright. By demanding payment for and creating code-based permissions, the world creator may be seen as granting a license to copy, transform or create joint or derivative works. Thus, the players may have acquired a particular entitlement to identify with these talents.
Justin Hughes (1998) in his article, The Personality Interest of Artists and Inventors in Intellectual Property, identified three separate personhood interests in intellectual property res: (1) creativity; (2) intentionality; and (3) identification as the source of the res. “Res is everything that may form an object of rights and includes an object, subject-matter, or status.” (Black’s Law Dictionary, 1990 citing In re Riggles Will, 205 N.Y.S.2d 19 (N.Y. App. Div. 1960)) They are as intrinsic to the virtual world as they are to the real world. He begins with creativity – a fundamental notion of copyright law – as a core personhood interest that blurs the notions of originality and personal expression. (Hughes, 1998) He refines this by following with intentionality. Black’s Law Dictionary (1990) defines intent as “design, resolve, or determination with which a person acts” (Witters v United States, 70 U.S. App. D.C. 316, 106 F.2d 837 (D.C. Cir. 1939); “a state of mind in which a person seeks to accomplish a given result through a course of action” (Wager v Pro, C.A., 195 U.S. App. D.C. 423, 603 F.2d 1005 (D.C. Cir. 1979)) and “a mental attitude which can seldom be proved by circumstances from which it may be inferred.” (State v Gantt, 26 N.C. App. 554, 217 S.E. 2d 3 (N.C. App. Div. 1975)) Hughes (1998) ends with questioning whether merely being the source of res creates legitimate personhood interests that justify some sort of protection. These principles can be applied to both the players and corporate governors of virtual worlds in attempt to determine who has the stronger property rights in these creations.
How fundamentally connected is creativity to individuality? Creativity as a characteristic is something we nurture in our children for their development as independent individuals. While looking at nearly interchangeable finger paintings, we praise them as original and unique. We envision that one of these children could be a new Jackson Pollock. All through our culture, our concepts of creativity, originality, and personal expression blur into one concept. This blurring occurs whether we are viewing kindergarten finger-paintings or Royal Albert Hall performances. In some cases, a work’s origin may be very obvious and it may be obviously a powerfully original work – like Picasso’s Les Desmoiselles d’Avignon when it was first viewed. Discussing this painting one commentator said, “the consequences of one individual act of perception were and remain incalculable … This individual act of perception is recorded in a painting by Picasso, now called Les Demoiselles d’Avignon.” (Read, 1974). The painting was ‘recognized instantly’ as a ‘summit of achievement.’ (Daix, 1993). One does not need much awareness of modern painting to recognize most of Picasso’s work as Picasso or most of Pollock’s work as Pollock.
Nevertheless, the identification of a certain work with a certain individual transpires with subtler expression, in a manner similar to a particular defensive play in a chess tournament, the arrangement of certain paintings at a retrospective, a particular style of lighting scenes in a film or a solution to a computer programming problem. In discussing the development of a few leading cinematographers from the Hollywood studio system of the 1930s, John Bailey said: “Coming out of that [studio system was] some really stellar people … who had such strength and such individual voice that they kind of transcended whatever studio they happened to be working for. Today you can look back and very easily recognize their films from the look irrespective of the director.” (Glassman, 1994).
In these understated cases, there is a groping for some new terminology like ‘critical judgment’ or ‘intellectual insight.’ All the same, it is difficult to ignore that a certain impression of personal style is what skulks behind the terminology. This view of ‘style’ is some aspect of creativity and personal expression. This remains true whether one adopts a ‘modern’ or ‘post-modern’ view of personality. Jeffrey Malkan (1997) discussed this problem with photographic images in his article Stolen Photographs: Personality, Publicity, and Privacy. Malkan observed that ‘style’ is a matter of what is ‘on the inside’ and quotes Cocteau’s observation that “decorative style has never existed. … Style is the soul. …” (Id. at 833) If this is the case, then there is no wonder that the three ideas – creativity, originality, and personal expression – have become so completely entwined in law that there may be no simple or clear way to disentangle them, despite some courts’ and commentators’ attempts to keep originality and creativity conceptually separate and distinct.
In the beginning, the traditional Common Law approach towards the requirement of originality was developed in England and is still enforceable there. This approach has served as a baseline for all other Common Law-based systems, including the early days of copyright law in the United States. The British approach could be described both as pragmatic and practical. ‘Originality’ is equated with a minimum standard of labour, skill or judgment in the production of a work which must not be a copy of another work. There is no requirement of novelty or creativity in the protected work, but only a requirement for some basic degree of skill and labour in the production of a work that is not a mere slavish copy of another work.
Simon S. Stokes (2001) describes the standard required for a work to qualify as original as ‘very low’ and with no more than “trivial effort and skill … required.” The often cited case in this context is: University of London Press Ltd. v University Tutorial Ltd.  2 Ch. 601, 608-609, in which it has been declared that: “The word ‘original’ does not in this context mean that the work must be the expression of original inventive thought. Copyright acts are not concerned with the originality of ideas but with the expression of thought, and in the case of a ‘literal work’, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work — that it should originate from the author.” Consequently, British courts have tended to acknowledge copyright in almost any work which has even a slight element of labour and skill invested in its production, and is not a simple copy of another work. Thus, the requirement of originality was acknowledged with regards to mundane factual compilations, (See Ladbroke (Football) Ltd v William Hill (Football) Ltd (H.L.(E.))  1 W.L.R 273, 287, 289, 292, 1 All ER 465) such as a chronological list of sports’ matches (See Football League v Littlewoods  Ch. 637, 2 All E.R. 546, 3 W.L.R. 42); a transcript of a public speech as it was documented by a skilful journalist (See Walter v Lane  A.C., 539); listings of programs to be broadcast (See Independent Television Publications v Time Out  F.S.R. 64); and ‘unoriginal works’ which concentrate solely on the documentation of another work such as photographs of paintings or objects in a collection. (See Antiquesportfolio.com plc. Rodney Fitch & Co. Ltd.  FSR 345, at 352-354) The cases which did not meet this basic requirement were cases such as a slightly enlarged image produced by using a simple photocopier (See The Reject Shop plc v Manners  FSR 870, at 876); or short slogans or titles. (See Rose v Information Services Ltd.  FSR 254)
The notion of skill, however, could also be interpreted as referring to creative skill, as suggested by Prof. Sterling (1998): “The word ‘skill’ has an extensive import, and covers creative endeavour. So a United Kingdom judgement should have no difficulty applying the test of skill as requiring intellectual creation.” If the choice and arrangement of source material demands more than a minimal standard of skill and labour, the final form of expression of the work will be entitled to a copyright which is independent and additional to the one which may exist in the source materials. (Cornish, 1999; Stokes, 2001)
This approach must be read alongside another basic principle of copyright law well established in the British system: the idea-expression dichotomy rule which excludes mere facts from the protection of copyright. Hence, copyright subsists only in a particular form of expression, in which ideas and facts are conveyed, and not in the abstracted form of the facts and ideas which are embodied within an expression. This basic rule is stated in many cases. For a recent House of Lords decision referring and applying the Idea-Expression Dichotomy, see Designers Guild Ltd. v Russell Williams (Textiles) Ltd. (H.L.(E.))  1 W.L.R. 2416, at 2422-2423, [1 All E.R. 700]. For examples of factual information in context see Walter v Steinkopff  3 Ch. 489; Express Newspapers v News (UK)  F.S.R. 36, at 41. The true nature of the protection granted to factual compilations was summarized clearly by the authors of Copinger and Skone James — On Copyright (1999), who state that the merit of such works lies in the time and money spent in collecting and choosing the raw materials and it is this skill and effort that the law really intends to protect in this context: “The skill and effort is not literary in any conventional sense but as a matter of convenience it is protected as a literary work.” Thus, intellectual creation or personal expression must be applied to the abstracted form of the facts in order for a copyright to subsist. This would then answer to the Oxford Pocket Dictionary’s (1975) definition of original, “. . . not imitative, novel in character or style, inventive, creative, thinking or acting for oneself . . .”
The Privy Council case of Interlego AG v Tyco Industries Inc.  3 All E.R. 949 at 970 per Lord Oliver (appeal taken from Hong Kong) which held that “[s]kill, labour, or judgement merely in the process of copying cannot confer originality. . . [t]here must . . . be some element of material alteration or embellishment which suffices to make the totality of the work an original work.”
In the 1991 Feist decision (499 U.S. 340), the U.S. Supreme Court unequivocally declared that ‘originality’ as employed in copyright law should be defined at least partially by means of creativity: “Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low, even a slight amount will suffice.” In the statutory grant that “copyright protection subsists … in original works of authorship,” 17 U.S.C. §102(a) (1988 & Supp. IV 1992), ‘original’ is interpreted as having ‘originality’ or meeting the ‘requirement of originality ….’ (Key Publications v Chinatown Today Publications, 945 F.2d 509, 512 (1991))
The Feist decision has had influence beyond the borders of the United States and has reached other common law-based countries that have adopted the ruling of the United States Supreme Court, while abandoning their traditional leaning towards the British approach. In Israel, the Supreme Court in the Interlego A/S v Exin-Lines Bros. SA (C.A. 513/89, 48(4) P.D. 133) decision adopted the Feist ruling with regards to both the interpretation of the originality requirement and the general rejection of the ‘sweat of the brow’ doctrine and the labour theory as a legitimate interest for establishing a copyright claim. In Canada, a Canadian Federal Court of Appeal withheld protection from a telephone directory arrangement (Tele-Direct (Publications) Inc. v American Business Information, Inc. (1997) 76 C.P.R. (3d) 296 (Fed. C.A.), rev denied, 1998). In CCH Canadian Ltd. v Law Society of Upper Canada (1999) 2 C.P.R. (4th) 129 (Fed. Ct.) a compiling of reported judicial decisions, including added headnotes and other matters, was found to be lacking the ‘creative spark’ essential to a finding of originality. By contrast, in another case, different facts, such as the selection of information useful for the community, the court allowed that it could be distinguishable from another telephone directory and as such original (Ital-Press Ltd. v Sicoli (1999) 86 C.P.R. (3d) 129 (Fed. Ct.) (telephone directory of Italian-Canadians in the Edmonton area)). Although other cases have restricted the Tele-Direct precedent to compilations and generally defined originality in more traditional common law terms. For example in Hager v ECW Press Ltd.  2 F.C. 287, 85 C.P.R. (3d) 289 (Fed. Ct.), the court recognized copyright protection in an interviewer’s transcription of an interviewee’s words.
This ‘blurring’ or ‘linking’ of creative-original-personal expression creates a multifaceted concept of creativity. The question becomes whether this blurring is the result of historical accident or to be expected. Did the law develop at a time when these ideas were culturally linked? If so, then even if the cultural links might have broken down over time, the conceptual links in jurisprudence might remain. (Hughes, 1988) This is the gist of the deconstructionist’s interpretations about the single ‘author’ and the immutable ‘text.’ The deconstructionists rationalize that the ‘solitary author-genius’ is an invention of Romanticism that became entrenched in American jurisprudence in the nineteenth century. (Jaszi, 1992) In the new age of high technology and collaborative creative work, this theory needs to be displaced. Presupposing the ‘solitary author-genius’ echoes the creative process of past times, the deconstructionists give little evidence of how the current creative process is distinctive. The evidence the deconstructionists do assemble is of a complex conception of creativity in which the ‘author-genius’ skulks beneath intellectual property decisions. (Id.) Instead of being a historical accident, there is good reason to suppose that the links between creativity, originality, and personal expression is both inevitable and historically rooted. (Hughes, 1998)
Many have explored how copyright law developed with, and came to rely on the Romantic notion of creative authorship, “an extreme assertion of the self and the value of the individual experience … together with the infinite and the transcendental.” (Jaszi, 1991 quoting The Oxford Companion to English Literature, M. Drabble ed., 5th ed. (Oxford: Oxford University Press, 1985) 842) The ‘author’ is seen as a historically contingent social construct that arose to capture the creative process in the nineteenth century and did not exist before that time. (Boyle, 1988) “The idea of [the] authorship is socially constructed and historically contingent.” (Id.) This is an overstatement which may perhaps devalue copyright and its history. The preamble of the Statute of Anne, c. 19, clearly shows that the intent in 1710 was not solely utilitarian, but solidly anchored in the author’s creativity: “encouragement of learned men to compose and write useful books . . . .” In general, the deconstructionists view “the persistent judicial reliance on author-reasoning as a method of resolving ambiguity and suppressing the complexity of the world.” (Aoki, 1993)
Professor James Boyle (1988) has even argued that the author construct gets used in economic analyses of legal controls on information. “The values of romantic authorship seem to seep – consciously or unconsciously – into economic analysis. And because in most conflicts the paradigm of authorship tends to fit one side better than the other, this romantic grounding provides economic analysis with at least the illusion of certainty. Authors tend to win.” Thus, from the deconstructionist perspective, copyright law “is grounded on an uncritical belief in the existence of a distinct and privileged category of activity” (Jaszi, 1991) called authorship. However fascinating the historical account of romantic author-genius’ arrival into Anglo American law may be, the courts, like art professors and theatre critics, are more concerned with creativity than authorship. Will this be the case for virtual worlds?
The U.S. Supreme Court has held that the Constitution established originality as a requirement for copyrightability. The Court asserted: “Originality is a constitutional requirement. The source of Congress’ power to enact copyright law is Article I, 8, cl.8 of the Constitution, which authorizes Congress to ‘secure for limited times to authors . . . the exclusive right to their respective writings.’ In two decisions from the late 19th century – The Trade-Mark Cases, 100 U.S. 82 (1879); and Burrow-Giles Lithographic Co. v Sarony, 111 U.S. 53 (1884) – this Court defined the crucial terms ‘authors’ and ‘writings’. In so doing, the Court made it unmistakeably clear that these terms presuppose a degree of originality.” (Feist, 499 U.S. at 346) In Feist at 345, a unanimous Supreme Court defined originality by reference to creativity and stated that originality is the sine qua non of copyrightability. But it is important to remember the path to this conclusion. The U.S. Copyright Act, 17 U.S.C. §102(a) (1996), limits property rights to “original works of authorship.” The U.S. Supreme Court explained that “original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” (Feist at 345) Some evidence suggests that the phrase ‘minimal degree of creativity’ should be interpreted to mean that the work is something more than a trivial variation of its precursors. (Alfred Bell & Co. v Catalda Fine Arts, Inc., 191 F.2d 99, 102 (2nd Cir. 1951))
The U.S. Supreme Court crammed the notion of creativity into the notion of originality in the context of using ‘originality’ as a requirement for copyright protection. Social scientists would argue that creativity is separate from originality; however, the Court was considering a judicial construct versus a social scientist exploring a social convention. Still, Feist is a starting point because the Court concludes that everything juridically original is also juridically creative. That logically entails the proposition that decided Feist: if something is not juridically creative, it cannot be juridically original. (“If j-original, then j-creative”) “Juridically original” (j-original) and “juridically creative” (j-creative) should be distinguished as legal concepts from general social conventions. According to symbolic logic, the Feist decision is saying: if j-original, then j-creative, which is logically equivalent to if not j-creative, then not j-original.” (Hughes, 1998) This equation (if j-original, then j-creative) was in reaction to a long line of case law that had supported the view that the requirement of originality was “little more than a prohibition of actual copying.” (Bell at 103) This is a view unquestioned by scholars writing prior to Feist. “Copyright’s threshold requirement of originality … requires neither newness nor creativity, but merely creation without copying.” (Litman, 1990; see also, Denicola, 1981) This juridical notion of originality, like the popular notion of originality, owes its currency to the idea of something’s ‘origin’: if a song owes its origin to John, it must be original to John.
This measure of ‘originality’ dates back to Justice Story’s early nineteenth century opinions (Gray v Russell, 10 F.Cas. 1035 (D. Mass. 1839) (Story, J); Emerson v Davies, 8 F.Cas. (D. Mass. 1845)) and gave us a fairly bright line test: if the work was the independent creation of someone, it was ‘original’ to that person. (VerSteeg, 1993; Olson, 1983) In the United Kingdom, Justice Petersen came to a similar conclusion in the University of London Press case ( 2 Ch. 601). This minimalist sense of ‘original’ – owing its origin to someone – will be explored later as the notion of ‘sourcehood.’ If the story owes its origin to Jedi Joe, Jedi Joe is the source of the story. If Jedi Joe owes his origin to LucasArts Galaxies, then LucasArts is the source of Jedi Joe. If, however, Jedi Joe owes his origin to Joe Dugger, then Joe Dugger is the source of Jedi Joe.
This derivation of ‘originality’ leads to a problem. Originality means that something could be juridically ‘original’ in the sense that it was not copied, but the thing might not be considered creative in the popular sense. Because American law makes originality the gate keeper of copyright protection, the Feist Court backed away from this narrow sense of ‘original.’ Instead, the Court embraced a formula tying originality with creativity.
The Second Circuit, in L. Batlin & Son, Inc. v Snyder, 536 F.2d 486, 490 (2d Cir. 1976) (en banc), was among those who had already explicitly linked originality to creativity while many copyright decisions had already required ‘creativity’ for copyright protection – meaning that it was either embedded in the notion of ‘originality’ or it stood as a separate requirement. The ambiguous place of the creativity requirement goes back at least to Justice Miller’s formulation in Trade-Mark Cases that copyright protection applies to works “only such as are original, and are founded in the creative powers of the mind.” In re Trade-Mark Cases, 100 U.S. 82, 94 (1879). This is contrary to the British theory found in University of London Press Ltd., ( 2 Ch. 601).
The Court in Feist adopts the formula ‘if j-original, then j-creative’ because this provides the more important rule, ‘if not j-creative, then not j-original.’ Embedding creativity in originality certainly makes the originality test more complicated than it would be as a mere test of sourcehood. (VerSteeg, 1993) In Feist at 347, the Court tells us only that creativity is not variations that are ‘mechanical,’ ‘entirely typical’ or ‘garden variety.’ Intellectual products that result from choices about composition that are obvious, inevitable, or ‘age old practice(s)’ do not count as minimally creative.
‘Creativity’ traces its etymological roots to the Latin verb creo, meaning ‘to beget’ or ‘to give birth to.’ The Latin root also means ‘to make’ or ‘to produce’ and is related to the verb cresco meaning ‘to grow up’ or ‘to spring forth.’ (Oxford Latin Dictionary, 1982) In a nutshell, the words’ roots do nothing to help distinguish ‘creating’ from ‘originating’ or ‘crafting’ or being the source of something. A better starting point is that the idea of being the source of something, of originating something, and of creating something all relies on the idea of transforming existing materials into something that is identifiably different. This causes problems for Cory Ondrejka’s (2005) theory that crafting is not creating.
Imagine that Bill Blacksmith purchases one hundred pounds of pig iron from Davey Dwarf, who dug the iron from a hillside on his farm. Bill uses fifteen pounds of the iron to make a sword; he sells this sword to Krull the Warrior. He also creates and donates five more swords to Krull (perhaps in exchange for protection). It is non-controversial that if someone asked you, knowing all this, ‘what is the origin of the sword?’ you would probably say ‘Bill, the Blacksmith’ and that the same reply would hold true if you substituted ‘source,’ i.e. ‘what is the source of the sword?’ If you rephrased the question into ‘who created the sword?’ you would again get ‘Bill’ as the answer.
Now consider if someone asked about the pig iron, i.e., ‘what is the origin of the pig iron?’ or ‘what is the source of the pig iron?’ This is more difficult. If you understood this question to be ‘how did the pig iron get here?’ you might answer ‘Bill,’ but it seems more likely that you would treat this as a question about the pig iron’s provenance, i.e. ‘where did it come from?’ In that case, if someone asked you ‘what is the origin of the pig iron?’ you would probably say ‘Davey’ or ‘Davey’s farm.’ Again, the same answer would come if ‘source’ was substituted for ‘origin.’ The probable answer would be ‘Davey’ or ‘Davey’s farm.’
But what if someone asked who created the pig iron? The question might evoke ‘God,’ ‘Nature,’ or some explanation that Davey dug it up, but didn’t ‘create’ it. This question gets a different answer because Davey does not seem to have transformed the materials available to him when he dug them up. But this still does not evince a great difference between the popular ideas of ‘creating’ and ‘originating.’ In fact, we could arrange a hierarchy of questions which, to increasing degrees, evoke the question of when an object first appears in the world (or first appears in the world in the form it now has):
”What is the provenance of X?”
”Where/who did X come from?”
“What is the source of X?”
”What is the origin of X?”
”Who/what created X?”
Substitute Bill’s sword or Davey’s pig iron for X in this series of questions – the questions initially can be met with an intermediary answer (‘the market,’ ‘the back of Bill’s cart,’ etc.). However, as you go down the list, what is increasingly demanded is an answer about when X first appears in the world identifiable as X. This would hold true if you ran through this list replacing X with a commercial star ship, an antique chest, or a manuscript, anonymous because the title page has been torn off. Point to a commercial star ship at a space station and ask where did it come from; its last stop – Tatoonine, Endor, Bespin – will be a fine answer. But point to the same star ship and ask who created it; nothing but “ ? ” will do as an answer. The moment when something first appeared in the world in its present form is synonymous with the moment when other things were transformed to the new thing.
The question becomes even more convoluted when set in virtual worlds. The above questions were answered within the boundaries of the virtual world. They can be answered by yet another manner when set in the ‘real’ world. Let X be a light sabre.”What is the provenance of X?” The maker of the light sabre or LucasArts?
”Where/who did X come from?” LucasArts or a galaxy far, far away?
”What is the source of X?” George Lucas’ fertile imagination or the Jedi Knight council?
”What is the origin of X?” Again George Lucas’ imagination or the Jedi Knight Master in the game?
”Who/what created X?” I’m sure the Jedi Knight Master feels he has as much a right to claim creating the light sabre as did the computer programmer who created the software code.
The point of the hierarchy of questions is that it shows that both creativity and originality are rooted in the transformative process. The view that transformation or novelty is fundamental to creativity is also put forward in Robert Weisberg (1993). Weisberg provides a thoughtful survey of psychological efforts to explore creativity, particularly how it differs from regular thinking. But there are many details that need attention. First, there is the issue of whether the transformative process of ‘creating’ or ‘originating’ focuses on the materials actually at the disposal of the person or the total world of materials or elements possibly available. Notions of both creativity and originality are context-specific; they measure transformation by what the person actually had available.
“Whether or not there really is anything new under the sun, a creative act produces something new or novel in comparison to what the creator had encountered and known previously. If unbeknownst to the creator someone else had produced something similar or identical … still the creator’s act would have been an act of creation. All that matters is that the effects of this earlier discovery have not seeped through and become known to the new discoverer in a way that makes his act less novel. Calling an act ‘creative’ characterizes it only in relation to the materials it actually arose from, the earlier experiences and knowledge of the creator, not in relation to everything that has preceded it in the history of the universe.” (Nozick, 1989) Taking Nozick’s definition above, if Ted, the chess novice, hits upon the Evans gambit in a chess game today, as his opponent, I may call his moves ‘creative’ or ‘original’ even though his moves are exactly how Captain W. D. Evans executed the game in the 1820s. (Id.)
George Lucas (2004) admits that his characters are traditional archetypes derived from mythology. He has a hero, Luke Skywalker, who follows the customary path of the mythological adventure. This path is a magnification of the formula represented in the rites of passage: separation – initiation – return. This is called the nuclear unit of the monomyth, a term taken from James Joyce’s Finnegans Wake (1939). (Morong, 1994) “A hero ventures forth from the world of common day into a region of supernatural wonder: fabulous forces are there encountered and a decisive victory is won: the hero comes back from this mysterious adventure with the power to bestow boons on his fellow man.” (Campbell, 1972) Lucas merely placed his character in a galaxy far, far away to pursue his monomyth. The first character that he meets on his journey is a wise man, Obi Wan Kenobi. He too is a traditional figure of mythology. His job is to provide the hero with amulets, in this case a light sabre, to help him overcome his future trials and obstacles.
These are just two examples from the Star Wars pantheon. Was George Lucas ‘creative’ or ‘original’? I would argue that clearly he was. He has developed something new and novel compared to what came before. However, would the next player to join Lucas’ virtual world be able to become a hero like Luke Skywalker? He would be a different person/character. He would pursue his own unique monomyth within the virtual world. He would be an avatar which reflected another source of inspiration rather than solely George Lucas.
On the other hand, Mihaly Csikszentmihaly (1994) explains with regard to Rembrandt and a master forger that only “Rembrandt’s work is creative because he introduced some variations in the domain of painting at a certain point in history, when those variations were novel (original) . . . The very same variations a few years later were no longer creative, because then they simply reproduced existing forms.” (Hughes, 1998) Returning to our player and his personal and unique avatar and using Csikszentmihaly’s definition, has he developed something novel (original) or is he simply reproducing an existing form created by LucasArts? Csikszentmihaly’s definition of creative differs from Nozick’s not in the test – which remains a test of identifiable difference – but in the reference set used for the test. Whereas Nozick refers to what the creator had encountered and known previously, Csikszentmihaly compares to all that has come before.
Whether the standard is an identifiable difference from what the creator had encountered or from all of what was known previously, the popular measure for the ‘original’ or the ‘creative’ still seems to be whether the thing seems identifiably different to us, not the creator. This is a problem for game players who feel they ‘make’ (create or craft?) their characters unique and identifiable. LucasArts, on the other hand, merely sees that their prototype characters are dressed differently. No transformation is apparent to LucasArts; nothing in the virtual world looks much different than the pre-existing conditions.
Complex characters require hundreds of hours to create, and although the game developers have created the potential for these characters to exist by programming them into the software code, they do not actually appear in the game until a player has invested a considerable amount of time in overcoming game obstacles to build the character. (Stephens, 2002) In addition, the game developers have only created a skeleton of this complex character. They have not developed a player’s specific character because the player exclusively controls some features of the character. (Fitch, 2004) For example, when a character forges relationships and alliances with other characters in the game, the game developer has no control over these aspects of the character.
The development of in-game objects, such as houses, also requires a significant time investment by players. (Id.) Again, the game developers have created the potential for the existence of these in-game objects in the software code, but these objects do not actually exist in the game until a player pursues them. With houses, the player also uses individual creativity in developing the in-game object by designing the layout and appearance of the house. Players provide more than trivial variations on the Star Wars story. They are creating a new story. This is no longer a game. Reality is being socially established. Events are observed and have consequences. Events ‘really happen’ in a space that has been meticulously authenticated. For players, what happens in Galaxies is authentic, as much as what happens in the movies is authentic – even more so, because it happens to them.
Can it be said then that creativity/originality requires a transformation not arising from the background order, but from the person who causes the transformation? Thus, there is a connection between creativity/originality and the personal – personal expression, personal intention, and personal reflections. LucasArts created the background order by opening up the Star Wars universe to others with Galaxies, but it is the players who transform this world by their personal expressions, personal intentions, and personal relations.
Many artists base their art on their own personal experiences. Justin Hughes (1998) cites the following examples. Diego Rivera’s affair with his wife’s sister, Christina, was discovered because of the way he painted Christina’s image into a mural at the Mexican National Palace – in an ‘ecstasy pose,’ while the extraordinary paintings of his wife, Frida Kahlo, reflected her own experiences – spinal injuries from a car accident, a miscarriage, and struggles with Catholicism. Edward Munch’s first major work, The Sick Child, recalls the death of his sister Sophie from tuberculosis. It was a scene he would repaint six times in his life. Ibsen was even more direct in transforming personal experiences into literature. He was known to abruptly start inviting individuals to dinner parties, and then just as unceremoniously drop them from his social list, once he had enough of their manners, speech, and attitudes to create a character.
As Bono, lead singer of U2 remarked, “musicians, painters, whatever, they have no choice but to describe where they live.” (Pareles, 1997) This is what the players in the virtual worlds are doing. Although what can you do about tribute bands in real life or virtual worlds? Currently, Second Life has U2 in SL in which all four of the band members’ avatars carry the names of their real life counterparts. The tribute band is a commercial violation that Linden Labs ought to be cracking down on contends Csven Concord, a resident of Second Life. Csven argues that, “Not only are U2 in SL guilty of trademark or other IP rights violation (both the band name and Bono’s name are trademarked), but they are also crossing LL’s Terms of Service, which specifically forbids giving your avatar the name of another person or a trademarked entity.”
They are artists of their own characters and stories. Thus, a connection between creativity and personal experience may be inferred. This connection could be one of practicality and prudence; the most successful creators staying close to what they know. Kahlo herself explained that many of her paintings were self-portraits “because I am the subject I know best.” However, originality is something more than creativity conveniently spliced to personal memories. Most people move uncritically from a belief that intellectual works reflect personal experiences to a belief that intellectual works are personal expressions. (Hughes, 1998)
When a player is creating his own character within a virtual world, he is likely to stay close to what he already knows. Nevertheless, many players create avatars which not only reflect but improve on their own characteristics. It follows then that the presentation of one’s own persona in the virtual world resembles to some extent the player’s real-life identity. This mechanism is referred to as transference. (Suler, 2002) It consists in transferring concealed emotions – often unconsciously – to the fictitious character. In addition, it is important to consider how personal expression may be something different from repeating or reproducing personal experiences. The possibility of modelling the characters played in the virtual world is not only a mechanism supporting identification, the player also has an active role in modulating the transmissions that reach him, and has control over them.
A player does not merely faithfully reconstruct a situation from his personal past – memory regurgitation – which would be an act of personal reflection. Instead he presently watches the screen to determine what actions he should take or what decisions to make. Obviously, it is easier to identify ourselves with something we have partly created rather than by pictures imposed on us by someone else. This transmission modulation enhances the gaming experience. Otherwise, it would reflect personal experiences as though the person was a passive, if imperfect, mirror of extra-person reality; a sort of secondary identification similar to a cinematic experience. Paradoxically, this sort of identification relies on distance while in the case of games, there is something more than just intimacy. (Filiack, 2003)
It is certainly easy to believe that an intellectual work is a personal reflection of the individual especially in games where identification is replaced by introjection – the subject is projected inward into an ‘other’. We do not need a complete imitation to confuse the ‘other’ with the ‘self’. (Morse, 1994) The subject (player) and the ‘other’ (avatar) do not stand at the opposite sides of the mirror anymore – they become one. While using an electronic medium in which subject and object, and what is real and imagined, are not clearly separated, the player loses his identity, projecting himself inward, becoming the ‘other’, and identifies with the character in the game. (Filiack, 2003)
Personal experiences reflect in this intellectual work because they are deep causes in the course of events that produce the work. During the game, the player’s identity ends in disintegration, and the merger of user’s and character’s consciousness ensues. There is the possibility that personal reflection, personal expression, and creativity should all collapse on one another, i.e., that ‘creativity’ is only a fancy covering for observation – the direct reproduction of things we have experienced. (Hughes, 1998) Whatever creativity is, it relies on – uses as fuel – the personal experiences of the creator. Something more than those experiences must be produced; otherwise, it cannot be said that the individual has been creative. Hence, creativity and originality are so intertwined. What is this ‘more’? How and in what sense is it expression of the individual? (Id.)
Robert Nozick (1989) suggested that “for a product to be creative it must not only differ from what came before but also stand in no specific obvious relationship to its predecessors.” He proposes that when a new object is derivable from predecessors by “mechanical application of a clear rule” it stands in a kind of “specific obvious relationship” to that predecessor and it is not creative. (Id.) I have previously described how an avatar is created. One begins with the software code of the skeleton or shell of a character. This would be copyright protected by the company. One transforms this character by experiencing the virtual world in which it exists. This could be considered a derivative work.
According to Nozick, individual avatars and their stories, no matter how unique and new to the galaxy, would not be considered creative as they are only the mechanical application of the rules of engagement in the MMORPG. Thus, regardless of how transformative the process, which has, in fact, produced an identifiably new character, it will not be considered creative because of the mechanical rules which govern the software of these virtual worlds and avatars. I disagree. The recombining of infinite (or seemingly infinite) attributes and relationships which an avatar may acquire will produce a story/character unique and original to that player; albeit, this formulation could be considered mechanical in nature. Many psychological descriptive accounts of creativity could still reduce creativity to a ‘mechanical’ activity – at least for a sufficiently large mind. For example, if creativity is the combination of ‘remotely associated’ ideas – a view put forward by Keith Simonton – then one only needs to mechanically combine more and more remote ideas to get something creative; if it involves ‘lateral thinking’ – the view of Edward deBono – then one needs only keep recombining patterns laterally to get something creative. (Weisberg, 1993)
Creativity has also been described as ‘a form of therapy’ by authors such as Graham Greene. “Art is a form of therapy. Sometimes I wonder how all those who do not write, compose, or paint can escape the madness, the melancholia, the panic-fear inherent in the human situation.” (Berman, 1995) This could explain why so many artists describe their work as critical to their psychological well-being – “a physical and spiritual necessity.” (Hughes, 1998 citing, Sam Francis Exhibition, Jeu de Paume Museum, Paris (Jan.1996)) This is very true in virtual worlds as players choose to spend a tremendous amount of time building and refining their avatars. “The creative work and product come to stand, sometimes unconsciously, for herself or for a missing piece or part, or for a defective one, or for part of a better self. The work is a surrogate for the creator, analogue of her, a little voodoo doll to tinker with and transform and remake in something analogous to the way she herself, or a part, needs to be transformed, remade, or healed… Important and needed work on the self is modelled in the process of artistic creation and symbolized there.” (Nozick, 1989)
This returns us to Locke’s theory above in which the fruits of one’s labour are perceived to be an extension of the labourer’s (player’s) personality. (Olivecrona, 1974) As avatars require much time and effort, they are shaped as much by player psychological needs as by advances in computer hardware and software. (Rehak, 2004) The gaming experience could be said to reflect an on-going work of art. This view corresponds with John Dewey’s (1980) work in Art as Experience. Although he was dealing mainly with artistic production, he believed that much about artistic and inventive production was the same. His work explores the various ways in which creativity is the interaction of old personal experiences and the new environment. (Id.)
Each creative agenda bears, through the individual’s interests, the imprint of her respective personal experiences. Each adventure the player has allows her to acquire new skills and attributes. Each adventure adds to her cumulative experience and thus to her creative agenda of becoming a more powerful wizard or a stronger warrior. Dewey (1980) has a stronger view of creativity as synthesis in which both perception and imagination are the synthesis of old experiences stored in memory and new circumstances being experienced by the individual: “[an] experience becomes conscious, a matter of perception, only when meanings enter it that are derived from prior experiences. Imagination is the only gateway through which these meanings can find their way into a present interaction; or rather … the conscious adjustment of the new and the old is imagination.” Further, “experience is rendered conscious by means of that fusion of old meanings and new situations that transfigures both (a transformation that defines imagination)” (Id.)
“The junction of the new and the old is not a mere composition of forces, but is a recreation in which the present impulsion gets form and solidity while the old, the ‘stored,’ material is literally revived, given new life and soul through having to meet the new situation. It is this double change that converts an activity into an act of expression. Things in the environment that would otherwise be mere smooth channels or else blind obstructions become means, media. At the same time, things retained from the past experience that would grow stale from routine or inert from lack of use, become coefficients in new adventures and put on raiment of fresh meaning. Here are all the elements needed to define expression.” (Id.) This sums up the virtual world experience very neatly.
Dewey’s view is that both the subjects our minds engage and what we do with those subjects are the results of personal experience being reworked in the present tense. Because each of us is a unique experiential time line, whatever we produce constitutes personal expression. Each of us is a unique order of experiences and each new creation might somehow be predictable and mechanical while staying beautiful and unique. (Noziak, 1989)
Does copyright protection subsist in massively consensual hallucinations? Can individuals create something copyrightable in these alternative galaxies known as virtual worlds? An author must contribute expression that is ‘original’; or an author must contribute distinguishable variations – variations that are greater than merely trivial – to a pre-existing work. (VerSteeg, 1996) So for example, LucasArts creates the galaxy’s structure and the various races of characters possible; however, the players craft “original” characters and experiences. This will be explored in more detail in Chapter 6.
Intentionality is used here as a counterpart to ‘creativity’ and as a constituent part of ‘personality’. (Hughes, 1998) Philosophers and jurists have struggled with the idea of ‘intention’ and the ways to characterize the process of forming and having intentions. Return to Black’s Law Dictionary (1990) definition of intent as “design, resolve, or determination with which a person acts.” (Witters v United States, 70 U.S.App.D.C. 316, 106 F.2d 837 (D.C. Cir. 1939)) This definition is similar to the Oxford Pocket Dictionary’s (1975) definition of intent as well. Intent and motive should not be confused. Motive is what prompts a person to act, or fail to act. Intent refers only to the state of mind with which the act is done or omitted. (Black’s, 1990)
A common theme in philosophical discussions of intentions is a sense of their ‘nowness’ – that an intention is a desire or decision being put into action. “Intending to do something is to be already in the process of doing it, even if merely by having undergone a re-arrangement of the causal powers within oneself in the direction of the action one intends to do.” (Castaneda, 1975) Charles Taylor (1989) further states that “awareness of [an] intention incorporates, and may be nothing more than, our awareness of what we are doing intentionally.” To the degree that an intention is separate from the ‘spirit’ of an action, this might help us distinguish intention from the creative impetus behind a project. While desire can be described as an intentional state, the important difference between a ‘desire’ and an ‘intention’ is that the latter is operational. One can ‘desire’ some end without doing anything to achieve that end, but ‘intending’ something connotes making a plan and putting it into action. An intention includes an awareness of a personal goal, awareness of a means to achieve that goal, and a commitment to pursue that means with personal actions. (Hughes, 1998)
There is no question that artistic works that seem imbued with creativity also seem imbued with the artist’s intention or purpose. As such, “[w]here the work constitutes a work that has both artistic intent and aspects of craftsmanship; it will attract copyright protection as a work of artistic craftsmanship.” (Lambretta Clothing Co Ltd v Teddy Smith (UK) Ltd  RPC 41, 2003 WL 21353286 (Ch D),  EWHC 1204,  EWCA Civ 886) Dewey remarked that: “no matter how imaginative the material for a work of art, it issues from the state of reverie to become the matter of a work of art only when it is ordered and organized, and this effect is produced only when purpose controls selection and development of material.” This returns us to the concept of authorship in British copyright law. The author of a work is the person who creates it. (CPDA 1988 s 9(1)) In most work, this is self-evident. Author has also been defined at the person who gathers or organizes the material contained within a work and who selects, orders, and arranges that material. This was in reference to compilations in the case of Waterlow Publishers Ltd v Rose  FSR 207.
The United States Supreme Court has defined the word ‘author’ twice; but only in dicta. First in Community for Creative Non-Violence v Reid, 490 U.S. 730, 737 (1989), “As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” (citing 17 U.S.C. §102) Next in, Burrow-Giles Lithographic Co. v Sarony, 111 U.S. 53, 58 (1884): “An author. . . is to whom anything owes its origin; originator; maker. . .” Generally speaking, cases that have defined ‘author’ for purposes of copyright have focussed their inquiry on one basic question: Has the putative author produced something that is copyrightable? There are two versions of what is really the same ‘rule’ of copyright law that have led courts to ask this question.
One version of the ‘rule’ comes from Justice Thurgood Marshall’s statement in Community for Creative Non-Violence v Reid: “As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” (citing 17 U.S.C.A. §102) The other version of the ‘rule’ comes from the discussion of joint authorship in Professor Goldstein’s treatise (1994) on copyright law: “A collaborative contribution will not produce a joint work, and a contributor will not obtain a co-ownership interest, unless the contribution represents original expression that could stand on its own as the subject matter of copyright.” According to Professor Goldstein, in order to be an ‘author,’ one must contribute something that is independently copyrightable. Taken together, courts have used these two versions to forge the rule that a person must fix his idea in a tangible medium of expression in order to be considered an ‘author’. Prof. Versteeg (1996) called this hybrid rule the Marshall-Goldstein approach.
The Marshall-Goldstein approach has a certain logical appeal. The U.S. Copyright Act could not be clearer: “Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (17 U.S.C.A. §102(a) (1996)) In order to be subject to copyright protection, a work must be fixed in a tangible medium. Because a work cannot be copyrightable unless it is fixed, it stands to reason that a person cannot be considered an author for purposes of copyright unless he has fixed his work in a tangible medium. Childress v Taylor, 945 F.2d 500 (2nd Cir. 1991), serves as an illustration of this definition of ‘author.’
In Childress, Clarice Taylor, an actress who had built a reputation by impersonating the black entertainer ‘Moms’ Mabley, approached the plaintiff, Alice Childress, a playwright, and convinced Childress to write a play about the life of ‘Moms’ Mabley. (Id. at 502) Taylor researched Mabley and provided her research to Childress. Subsequently, Childress asked Taylor for additional biographical information and then routinely consulted with Taylor as the writing of the play evolved. During this process, Taylor recommended detailed scenes, jokes, and characters for the play. According to the Second Circuit, “Taylor contributed facts and details about Moms Mabley’s life and discussed some of them with Childress. However, Childress was responsible for the actual structure of the play and the dialogue.” (Id.) The Second Circuit affirmed summary judgment for Childress on the basis that the intent necessary for joint authorship was lacking. (Id. at 507-8) The U.S. Copyright Act, 17 U.S.C.A. §101 (1996), defines a ‘joint work’ as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” Thus, in order to be considered ‘joint authors,’ the putative joint authors must manifest this intention. (Id. at 507)
Nevertheless, the Court also addressed the definition of ‘author’ in dicta. (Id. at 506) After all, “by definition the party raising the joint authorship claim (or defence) must be an ‘author’ of the copyrightable work.” (Respect Inc. v Committee on the Status of Women, 815 F. Supp. 1112, 1120 (N.D. Ill. 1993)) The Childress decision at 504 recognized that the authorship question in the context of joint authorship is particularly sensitive and difficult: “Care must be taken to ensure that true collaborators in the creative process are accorded the perquisites of co-authorship and to guard against the risk that a sole author is denied exclusive authorship status simply because another person rendered some form of assistance. Copyright law best serves the interests of creativity when it carefully draws the bounds of ‘joint authorship’ so as to protect the legitimate claims of both sole authors and co-authors.”
Judge Newman noted that “[a] more substantial issue arising under the statutory definition of ‘joint work’ is whether the contribution of each joint author must be copyrightable or only the combined result of their joint efforts must be copyrightable.” (Childress at 506) Judge Newman concluded, “The case law supports a requirement of copyrightability of each contribution.” (Id.) Childress established that in order to be considered an ‘author,’ one must contribute something that is copyrightable. (VerSteeg, 1996; Lape, 1997)
The Seventh Circuit adopted this position in a case which provides another example of this approach to defining ‘author,’ Erickson v Trinity Theatre, Inc., 13 F.3d 1061 (7th Cir. 1994), Erickson involved a claim of joint authorship by a theatre performing the plays of a playwright. Although playwright Karen Erickson was the sole writer of the plays in question, the Trinity Theatre argued that its actors had contributed a great deal to the finished products and, therefore, it should be deemed a joint author. The conditions in Childress and the conditions surrounding the development of Erickson’s plays are analogous. Here, the actors contributed ideas and provided suggestions. Their contributions simply developed in a different manner than in Childress. Taylor presented a rather stronger case. She could identify specific material contributed by her. The Trinity actors, with one exception, were could not identify any specific contributions they had made.
The Court suggested that “even if two or more persons collaborate with the intent to create a unitary work, the product will be considered a ‘joint work’ only if the collaborators can be considered ‘authors’.” (Id. at 1068) The Court emphasized that the U.S. Copyright Act dictates that a ‘joint work’ be ‘prepared by two or more authors’ by citing 17 U.S.C. §101 (1994). The Court then quoted Justice Marshall’s dictum in Reid at 737 stating, “An author is ‘the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection’.” The Court then latched onto the phrase “fixed, tangible expression” and quoted the U.S. Copyright Act’s definition of ‘fixed.’
As to the requirement of fixation, §101 states that “[a] work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” The Erickson Court concluded at 1072 that “to qualify as an author, one must supply more than mere direction or ideas.” Applying these rules of law, the Court determined that the Trinity Theatre could not be a joint author: “In order for the plays to be joint works under the Act, Trinity also must show that actors’ contributions to Ms. Erickson’s work could have been independently copyrighted.” (Id.) The Court punctuated its decision with an almost irrefutable maxim of copyright law: “Ideas, refinements, and suggestions, standing alone, are not the subjects of copyrights.” (Id.)
A similar case in the United Kingdom, Brighton and another v Jones  EWHC 1157, concerning the play Stones in His Pockets involved similar issues. Miss Jones had been commissioned by Dubbeljoint Theatre Company to write a play called Stones in His Pocket. Miss Brighton was the director of the play which was originally produced in 1996. Miss Jones was credited as the author of the play in the publicity materials. Miss Jones wrote the original script in 1996 and in 1999 rewrote the original play. Two separate copyrights subsisted for these two ‘dramatic works’. The 1999 version was a commercial and critical success. Miss Brighton claimed joint authorship of the 1996 script on the basis of contributions she had made in rehearsals. Consequently, she alleged that Miss Jones had breached that right when she created the 1999 script. Miss Brighton claimed that she had sent a draft opening script to Miss Jones before she had started work on the 1996 script. Miss Jones closely followed the storyline (but not the precise words) to the end of the opening draft. Miss Brighton claimed that the draft was a dramatic work in its own right and that she was the owner.
The court held that the basic provisions of the CDPA ss 9 and 10 as to ownership were qualified to the extent that under s 104(2), there was a presumption that the author named on the work was the actual author. Miss Jones had been; however, Miss Brighton failed to prove that she also was named. (Brighton at 1158) It was further established that copyright infringement (‘altered copying’) existed if B took A’s story and wrote a play based on it but did not have a licence from A to do so. (Designers Guild Ltd v Russell Williams (Textiles) Ltd  1 WLR 2416 at 2422H and 2431D; Ravenscroft v Herbert  RPC 193; and Harman Pictures NV v Osborne  1 WLR 723) The court held that Miss Jones had indeed used a significant part of the draft in the ‘altered copying’ sense, but not in the ‘language copying’ sense. She accepted that this was true and actually quite extensive. The court, however, reject Miss Brighton’s claim stating that she had given Miss Jones an implied open-ended licence to use the work. (Brighton and another v Jones  EWHC 1157)
The court then explored the claim of joint authorship. Joint authorship under CDPA s 10(1) requires ‘collaboration … in which the contribution of each author is not distinct from that of the other author or authors.’ Miss Brighton’s case was that this provision applied to the manner in which rehearsals had proceeded. The court went on to review the case law required: (i) a person claiming joint authorship needed to have made a significant contribution to the creation of the work; (Robin Ray v Classic FM plc  FSR 622) (ii) the contribution had to be a contribution towards the creation of the work; (Fylde Microsystems Ltd v Key Radio Systems Ltd  FSR 449) and (iii) a person can become a joint author without putting pen to paper, so long as someone else has effectively written what that person has created. (Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd  FSR 818) During rehearsals, the actors might improvise or Miss Brighton might suggest dialogue, but Miss Jones would put it down in her own words. The court determined that Miss Brighton’s claims failed despite her contributions during rehearsals because the words were composed by Miss Jones. Any changes made on the basis of Miss Brighton’s input were not considered significant enough. Also, she did not establish that her contribution was in the work rather than in its interpretation and theatrical presentation. (Brighton and another v Jones  EWHC 1157)
Thus, one might say that the person’s intentionality is intention in the process which led to creation of the res, not intention in the res itself. This, in turn, leads us from an exploration of the artist’s expression into exploration of her intentions, i.e., “what was she trying to express?” easily becomes “what was her intention?” To John Dewey (1980), purpose was as keenly connected to one’s personality as creativity: “Purpose implicates in the most organic way an individual self. It is the purpose he entertains and acts upon that an individual most completely exhibits and realizes his most intimate selfhood. Control of material by a ‘self’ is control by more than just ‘mind’: it is control by the personality that has mind incorporated within it.” However, not just any intent is enough for a personhood interest in intellectual products; the individual must intend to produce some form or shape that does not yet exist.
Once again Lockean philosophy may be invoked. The artist/author must have the intention of being identified with her original work which has been set down in a fixed manner. This appropriative labour has caused her to psychologically identify with her work. (Gordon, 1990) Her personality interest might arise from being the source of the directed labour. The scientists who made an important discovery from the hypothalamus gland characterized their work in much the same terms of highly directed labour: “nobody before had to process millions of hypothalami . . . . The key factor is not the money; it’s the will . . . the brutal force of putting in 60 hours a week for a year.” They likened the experience to “fighting Hitler . . . you have to cut him down.” (Latour & Woolgar, 1986) Or it can be applied to players in a virtual world. Take this account of one user’s virtual toils:
John Stolle had to procure the money for the deed to his new castle. To acquire the money, he sold his old house. To buy that first house, he spent hours manufacturing virtual swords and armour to sell to a steady customer base of about three dozen fellow players. To find and then maintain these customers, he was obliged to bring [his avatar’s] blacksmithing skills up to Grandmaster level. To reach that rank, Stolle spent six months blacksmithing to the exclusion of all else. He clicked on hillsides to mine ore, returned to his forge to click the ore into ingots, clicked again to transform the ingots into swords and armour. Then he returned to the hills to start the process all over again. Each time he improved [his avatar’s] skill level a small fraction of a percentage point.
Pause for a moment and reflect on this story. Consider what was going on here. Every day, month after month, a man came home from a full day of bone-jarringly repetitive work with a jack hammer and then sat up all night doing finger-numbingly repetitive work with ‘hammer’ and ‘anvil’. He paid $ 9.95 per month for this privilege. If one were to ask Stolle why. He would reply: “Well, it’s not work if you enjoy it.” (Dibbell, 2003) He clearly identifies with his creations. Would he not be surprised to learn that he may not actually own the fruits of his labour? He might even be shocked to learn that he is merely a joint author of a vast consensual hallucination. The idea of a vast consensual hallucination comes from Rushkoff’s Cyberia. (1994)
So how should one determine the ownership of the virtual assets created in these spaces? Currently, the two most prevalent ways in which to deal with the issue lay in intellectual property law and contract law. Both these approaches carry with them a set of presuppositions about whose intentions should be protected. This set of presuppositions then defines how the rights of players/crafters should be balanced against the rights of designers/creators. The European Commission’s Green Paper on Copyright in the Knowledge Economy (COM (2008) 466/3) is considering an exception for user-generated content on the basis that it is “transformative” and would follow the trend which the United States is following. One must note, however, that transformative use alone is not a defence to copyright infringement but a factor when determining a fair use defence under §107 of the U.S. Copyright Act. This will be discussed further in Chapter 6.
Besides creativity and intentionality, there may be another personality interest: identification as the source of the res. (Hughes, 1998) I suggest that this is a more basic aspect, but one which may resonate closely with players in a virtual world. The idea of ‘sourcehood’ takes two forms. The first is the purely private self-identification with the res. This is a private belief that one is the source of the res. (Id.) An example would be a player creating a distinctly unique avatar as opposed to accepting a generic avatar. On the other hand, it could be the computer programmer who created the code to allow avatars to acquire blue dye which, in turn, would allow them to have blue hair. Contrast this with the desire for the attention of others, recognition, or social place; a person who wants others to identify her and might try to achieve this recognition by ‘marking’ things as her own. (Hegel, 1952; Gordon, 1993) These markings could be the symbols a craftsman uses to identify his goods or it could be the marks that a guild might use to identify its members. This ‘sourcehood’ interest, being identified as the source of some intellectual work, may be a personality justification.
One of the main justifications for intellectual property rights, especially copyright, is the belief that “an author’s or inventor’s sense of worth and dignity require public acknowledgment by those who use the writing or discovery. . . .” (Hettinger, 1989) Certainly, the personhood interest in intellectual property is most often protected with a guarantee of social recognition: the right of attribution. (Berne Convention, article 6bis) Attribution rights protect sourcehood interests; however, in America these rights are not as developed as in Europe. In the United States, the default position is that a source of intellectual property res does not have a right of attribution as noted in Cleary v News Corp., 30 F.3d 1255 (9th Cir. 1994). In Vargas v Esquire, Inc., 164 F.2d 522 (7th Cir. 1947), the court held that an artist could not claim a right of attribution against a magazine where the artist granted the magazine all rights to his drawings in exchange for monthly compensation). In a further example, Nelson v Radio Corp. of Am., 148 F. Supp. 1 (S.D. Fla. 1957), the court denied a singer a right of attribution in the context of a master/servant relationship between recording company and singer and absent agreement to provide label credit.
Although, self-identification and the desire for recognition from others are conceptually distinct, one can imagine creative people who identify with their work and do not want social recognition. Perhaps, an artist wants to avoid social recognition in order to maintain greater creative freedom. Or perhaps, an individual wants to relate to others via a different identity provided by their avatar. In MMORPGs, this is where the aspect of role-playing is at its height. Virtual worlds are the domain of liquid identities. Even so, these two notions – self-identification as the source of a res and desire for social recognition through the res – are rarely disentangled. They are combined on the assumption that the person seeks social identification for those things with which she already self-identifies. The notion of identity is compelling when studying culture; “self” is the measure of reality. (Filiack, 2003) Protecting this “self” takes the form of social mores as much as laws.
If the right of attribution is limited in our mores and laws, then so is the extension of any other rights (i.e. to control the intellectual property res) relating to one who self-identifies with that res. This section explores some of the situations in which self-identification might arise from ‘sourcehood’ and how that can be extrapolated into virtual worlds. Further there are situations where a person is the source of some valuable intellectual property but something about the situation disallows a justification based upon creativity or intentionality. (Hughes, 1998)
A sourcehood interest could also arise through labour or effort, even though that effort has not led to anything apparently creative. This is likely to be an argument in videogames. Intentionality, though, may still provide an adequate justification for a personality interest. A sourcehood interest could also come from being the passive source of valuable genetic information; this is the Moore v University of California, 793 P.2d 479 (Cal.1990), problem. Virtual worlds are analogous to this problem. LucasArts’ computer programming code can be seen as being the equivalent to the genetic code in Moore’s spleen. The game players would then be analogous to the doctors at UCLA. In both situations, the legal system does not grant protection – and therefore does not seem to recognize a personhood interest – unless other elements are present. The juxtaposition does not have to be unprotected ‘sources’ from protected ‘geniuses’; the undervaluing of ‘sources’ may be rooted in the idea of human agency as the ingredient that removes something from the Lockean commons. (Holmes v Hurst, 174 U.S. 82 (1899); Jeffreys v Boosey, 10 Eng. Rep. 681 (H.L. 1854))
Moore v Regents of University of California is an interesting case. Doctors at UCLA Medical Centre had removed Moore’s spleen in the course of cancer treatment, and then used Moore’s cells to create a patented cell-line. The California Supreme Court held that the doctors may have breached their fiduciary duty to Moore, but that Moore had no property interest in his own body’s cells. The Moore majority was not concerned with the moral dimension of extending property rights over living tissue; nor did the court question the propriety of the patents issued to the physicians who had cultured Moore’s spleen cells. Instead, the majority opinion called Moore’s own claim to have a property interest in the biological materials derived from his own body ‘novel’ and ‘problematical at best.’ (793 P.2d 479 (Cal.1990)) The majority opinion completely skips over the Lockean theory regarding a person owning his own body which provides the first step in a labour theory of property which has influenced American law since the Founding Fathers.
This issue is still hotly debated in Europe. Even though most industrialized countries agree that non-naturally occurring micro-organisms are patentable, only a few allow patents for larger, non-natural organisms. In the early 1980s, the U.S. Supreme Court held in Diamond v Chakrabarty, 447 U.S. 303 (1980) that genetically engineered, single-cell organisms not found in nature were patentable. This decision did not expressly address the patentability of multi-cellular or naturally occurring animals. Nonetheless, under the authority of the Court’s decision in Chakrabarty, the U.S. Patent and Trademark Office announced it would accept applications for and grant patents on such animals. The U.S. Patent and Trademark Office, in fact, issued a patent on the ‘Harvard Oncomouse,’ a mouse genetically engineered to be highly susceptible to human cancer.
The European Patent Office determined that the Harvard Oncomouse was not an unpatentable ‘animal variety.’ The EPO stated that each patent application for higher life forms will be examined individually, and the grant of the Harvard Oncomouse patent does not open European protection for all higher life forms. Dissemination of unwanted genes, cruelty to animals, environmental risks, and benefits of the invention will be considered in granting such an application. (See 11 Biotech. L. Rep. 150-53 (1992) for a reprint of the European Patent Office’s statement.) (Kimbrell, 1995; Helfgott, 1992)
James Boyle (1996) criticized the Moore opinion for its inexplicable discussion of uniqueness as a requisite for a property right in human cells. The Moore court (at 490) focused on the genetic code for production of lymphokines, finding that this tiny part of Moore’s gene code could not be different from anyone else’s. The proper focus of analysis, however, was not the gene code, but the cells (or whatever aspect of the cells – possibly including code) that were responsible for Moore’s higher than normal level of lymphokines production. Even if the court had done a tighter factual analysis, there would be no justification for the court’s uniqueness requirement on Moore’s property claim. Uniqueness is a requirement only of patent law; it is not required for most other property regimes and certainly not for rights to one’s own labour – one’s own bodily toil. One irony of the Moore case is that the conventions of the scientific community did a better job of recognizing Moore’s contribution than the legal system did: as issued, the patent covers the ‘Mo cell line.’
To Boyle, Moore is a case in which ‘sources’ of new intellectual property are undervalued while the manipulators who use source material are aggrandized by the ‘author’ construct. (Boyle, 1996; cf., Fairfield, 2005) This point is reinforced by the dissent’s comment that “no one can question Moore’s crucial contribution to the invention.” (Moore at 511) The Moore court emphasized the patented work of the UCLA researchers in producing a cell line from Moore’s cells, opining that “adaptation and growth of human tissues and cells in culture is difficult – often considered an art” and that the patent granted to the cell line applied to the results of this “inventive effort … not the discovery of naturally occurring raw materials.” (Id. at 492)
The patent rights of the UCLA researchers do not bear directly on property rights to the source material. The amount of art a sculptor puts into a work would not alter property rights to the original bronze or marble. The sculptor might own the copyrightable image of the work yet still be liable for stealing the marble. LucasArts would make this argument against the rights of players in their characters and the objects associated with those characters. No matter the amount of time and energy a player expends on creating their avatar, goods, homes, and adventures, nothing would alter the property rights to the underlying computer code that LucasArts supplied in the first place. However, by analogy, just as the UCLA researchers acquired rights in their manipulation of Moore’s genetic code, so should players receive rights in their manipulation of LucasArts’ computer code. The great difference, however, is that people have no conscious personal experience, creativity, or intentionality embedded in their genetic codes. Does a personhood interest in this information arise nonetheless because you are the source of the information? Should the personhood interest arise because there is a conscious personal experience, creativity and intentionality in the actions of the players?
The issue that could have been confronted is whether Moore had a property right to his cells – does Locke’s theory of self-ownership extend to the cellular level or does ‘ownership’ simply make no sense when applied to body parts? The majority opinion fails to get to the root questions of cell ownership; and thus, to when and where ownership begins.
The connection between genetic information and persona has not gone unnoticed. Stephen Mortinger, (1990) pointed out that “a cause of action for appropriation of the commercial value of a person’s genetic structure [is not] far removed from the Court’s current recognition of the right of a person to claim appropriation of his unique likeness or persona. Moore’s experience has been analogised to that of Bela Lugosi’s heirs and Mr. Lugosi’s portrayal of Dracula. In Lugosi v Universal Pictures, 603 P.2d 425 (Cal. 1979), a majority of the California Supreme Court held that Lugosi’s heirs could not prevent Universal Studios from licensing an image of ‘Dracula’ that clearly included Lugosi’s likeness. Lugosi had granted Universal a right to use his likeness in promoting specific Dracula films. Universal had discovered, as Disney had with Mickey Mouse, that the ‘Dracula’ character – particularly Lugosi’s rendition of it – was a valuable property separate from any films in which it appeared. Universal widely licensed the Lugosi-Dracula character for merchandise unconnected to any re-release or promotion of the films. Lugosi’s heirs argued that Lugosi’s grant to Universal did not extend to such uses. (Id.)
The majority found that Lugosi’s right to control his name and likeness was personal, and, therefore, nondescendible. This left Universal free to exploit the Lugosi-Dracula image after Lugosi’s death. The majority concluded that “neither society’s interests in the free dissemination of ideas nor the artist’s rights to the fruits of his own labour would be served” by recognizing the right to descend to Lugosi’s heirs. (Id.) The court also justified their non-descendibility ruling by “the difficulty in judicially selecting an appropriate durational limitation” if heirs were allowed to inherit a property right in a likeness. (Id.)
The Lugosi case is not easily analyzed as a ‘source’ versus ‘author’ battle. In Lugosi, the original author plays no part because the character created by the author, Bram Stoker, had already entered the public domain. On one hand, the case centred on a popular artiste’s battle against an anonymous collaborative institution. On the other hand, that artist, Lugosi, was clearly using someone else’s material. The only hint of Mr. Lugosi being an underappreciated ‘source’ may have been Justice Mosk remarking that Lugosi “was a talented actor but … he was not a playwright, an innovator, a creator or an entrepreneur.” (Id. at 432) He further went on to note that ‘merely playing a role’ creates no property interest in that dramatic role. (Id.)
This would be a very strong argument for LucasArts. Although Bram Stoker did not have a role in the litigation, George Lucas certainly would have. He is the playwright, the innovator, the creator, and entrepreneur of the original Star Wars oeuvre. There is no doubt of his property rights in that. However, there is an equally strong argument in favour of the players. The players write the persistent and interactive adventures they portray. They are the on-going innovators of Galaxies. They create stories and goods daily. Entrepreneurialism is an intrinsic aspect of virtual worlds.
As Justice Bird pointed out in her dissent, when Universal granted licenses, it “specifically authorized the use of Lugosi’s likeness from his portrayal of Count Dracula.” (Id. at 435, Bird, J. dissenting) Universal did this even though other actors had played the Dracula role in other Universal films. She recognized that the right of publicity could have justifications separate from privacy and similar to that of other intellectual property. She was correct that this was a case about an image. (Id.) Justice Mosk took a misstep when he reasoned that Lugosi’s “performance gave him no more claim on Dracula than that of countless actors of Hamlet who have portrayed the Dane in a unique manner.” (Id. at 432) He missed the point. The issue was not whether Lugosi’s heirs had rights over the Dracula role, but whether Lugosi’s heirs had rights over the Lugosi-Dracula image.
The present level of technology, we can understand that image as a compendium of information. It could be digital information used to create the image on a computer; it could also be genetic information which largely (although not completely) constituted Lugosi’s physiognomy coupled with some information on make-up. This may seem to oversimplify the case because the Lugosi-Dracula image was rooted in an intentional, dramatic performance. But the simplification is justified by the widespread use of the image separate from the films and the fact that many consumers of the image – particularly young people – have no experience with Lugosi’s dramatic performance as Dracula. This is what arguably makes any personhood justification for protecting the Lugosi-Dracula image so different from protection for the images of Madonna, Prince, Julia Roberts or Princess Leia. In those cases the individual’s image and overall persona is a product imbued with intention and purpose. (Fisher, 2004)
But the rise of the image of Lugosi-Dracula, an image sold to teenagers who do not know who Bela Lugosi was, seems comparatively accidental. Separated from Lugosi’s dramatic performances, Lugosi’s vampirical likeness becomes a possible sourcehood example, one in which we might want to recognize a personhood interest even where no creativity or intentionality is at play. George Lucas recognized this when he first started putting together Star Wars. He wanted complete and utter control of the licensing rights to all the characters, creatures, and stories. (Lucas, 2004)
E. The Problem of Labour
Beyond examples like the Moore case, a final area of case law may offer some insights into the sourcehood justification of personality interests. Intellectual property law is rich in cases holding that mere labour or effort does not lead to intellectual property protection. Justice Brennan cautioned against seeing protectable interests arising from labour in the 1985 case brought against the Nation for printing excerpts of former President Ford’s memoirs:
“Limiting the inquiry to the propriety of a subsequent author’s use of the copyright owner’s literary form is not easy in the case of a work of history. Protection against only substantial appropriation of literary form does not ensure historians a return commensurate with the full value of their labours. The literary form contained in works like “A Time to Heal” reflects only a part of the labour that goes into the book. It is the labour of collecting, sifting, organizing, and reflecting that predominates in the creation of works of history such as this one. The value this labour produces lies primarily in the information and ideas revealed, and not in the particular collection of words through which the information and ideas are expressed. Copyright thus does not protect that which is often of most value in a work of history, and courts must resist the tendency to reject the fair use defence on the basis of their feeling that an author of history has been deprived of the full value of his or her labour. A subsequent author’s taking of information and ideas are in no sense pirating because copyright law simply does not create any property interest in information and ideas.” (Harper & Row Publishers Inc v Nation Enters., 471 U.S. 539, 589 (1985))
The ‘tendency’ against which Brennan warns might be couched as the ‘labour’ problem – whether protectable (personality) interests can arise from seemingly non-creative labour that produces valuable works. (Hughes, 1998) The “collecting, sifting, and organizing” that constitutes such a large part of some works is a kind of activity which does not seem to be creative. Yet researchers feel justified in having a deep personality interests in their own work.
One could say that learning to play the MMORPGs is akin to “collecting, sifting and organizing” information about the new virtual world. The player is gathering skills, strength, and powers. As suggested earlier, this type of labour involves a certain amount of intentionality. It is clearly a goal-directed, conscious activity. In research based cases though, the intentionality – the will behind the research – may belong to someone else. If the purpose, approach, and design of the research is completely determined by an employer and the research activity is not judged creative, does the researcher have any personhood interest in the results just from being the source of the labour? In virtual worlds, the will behind the research is that of the player not the game company. Although it can be argued that the purpose, approach and design of their research is determined by the game company. The question remains whether or not the results of that research activity can be judged as creative. In both scenarios, perhaps the researcher/player can only achieve a right of attribution.
This leads to another area of arguably non-creative, non-intentional labour, painstaking reproduction. (Id.) Hughes emphasizes that the reproduction must be painstaking. For purposes of my argument this may not be necessary as the underlying computer code make any creation synchronized with the entire virtual world. When painstaking reproduction takes nature as its subject, there was no problem distinguishing the res from its underlying inspiration. No matter how realistic, a painting is distinguishable from the meadow or fruit bowl it portrays. What happens when painstaking reproduction takes virtual nature as its subject? Now these skills of painstaking reproduction are focused on an object which is already the subject of intellectual property rights. How can we grant property rights to character X, a painstaking reproduction of character Y, without compromising the intellectual property rights to Y? The games themselves have a built-in remedy for this problem. For example, no one can be the character of Darth Vader. However, someone can attempt to become a Dark Lord in his own right.
Gracen v Bradford Exchange, 698 F.2d 300 (7th Cir. 1983), is an interesting case in this regard. An artist who had realistically recreated Dorothy from The Wizard of Oz on collector’s plates was unable to stop her image from being reproduced without her permission. Bradford had sponsored a contest to create a collector’s plate image of Dorothy; the arguably contradictory contest instructions stated that Bradford sought the artist’s ‘interpretation’ of Dorothy but that this interpretation of “Judy/Dorothy must be very recognizable as everybody’s Judy/Dorothy.” (Id. at 301) Gracen had won the contest originally. However, when Gracen and Bradford failed to agree on the price for Gracen’s work, Bradford hired another artist to copy Gracen’s work. Gracen sued, claiming that the second artist had, at Bradford’s direction, pirated her copyrighted image of Dorothy. Gracen lost on summary judgment – later affirmed on appeal – on the basis that Gracen’s image had insufficient variation from the Dorothy images in the film. “The prize for faithful accuracy doomed Gracen’s copyright suit … The court condemned Gracen for achieving precisely her creative goal.” (Wiley, 1991) Gracen should have had some copyright recognized and that, in general, copyright should be rewarded where the artist has painstakingly reproduced something. (Id.)
It is enlightening to note that faithful reproductions like Gracen’s work are often shoehorned into the ‘creativity’ model. Bradford had originally praised Gracen’s painting of the Wizard of Oz, saying that it “was the one painting that conveyed the essence of Judy’s character in the film ….” (Gracen at 301) The idea of ‘conveying’ or ‘capturing’ the ‘essence’ of something is very much in the romantic spirit of defining an author. The difference between a northern European Renaissance painter and Gracen is that the romantic painter was usually capturing the ‘essence’ of some aspect of nature or human activity, whereas Gracen was capturing the essence of prior, protected art. (Wiley, citing E.H. Gombrich, 1984)
Let us consider this scenario in a slightly different light. The call has gone forth for artists/players to create or capture the essence of Star Wars characters. They are given generic characters with which to begin, a wookie or a female human. The player has been told that they cannot become or re-create the characters Chewbacca or Princess Leia. However, Chewbacca has pretty standard looking fur and blue eyes. Only the adventures he has be on with Han Solo mark him out as a unique wookie. Princess Leia is also a pretty standard looking female with brown hair and eyes in a hooded white dress. Does her hairstyle or clothing mark her out as unique or again is it her adventures that make her unique?
Not all games have cared about this. See, Marvel Enterprises Inc and Marvel Characters Inc. v NCSoft Corp, NC Interactive, Inc. and Cryptic Studios, Inc., No. CV 04-9253-RGK (unreported, Central Dist. Calif.) In the defendants’ game, players design and create superheroes, which they can then use to interact with other players within the virtual city ‘Paragon City’. The game contains a character creation system which guides players through the superhero design process. Marvel claims that this character creation system allows and encourages players to create heroes that are similar to, or identical in appearance to, Marvel’s well-known comic book characters.
What can a player do to make their character unique or derivative of the original characters? It is possible that the practical problem of sorting out rights between the original and derivative work compels the Gracen conclusion. Perhaps, the Gracen case was not persuasive because we feel there was little or no personality interest in her work. The term ‘creative’ was just misplaced. No one would ask Gracen what her Dorothy ‘meant’ because it was an image so undistinguishable from the Dorothy of the movies that no one would have thought it to be a different creation. It will be interesting to see if anyone creates an image or character that is indistinguishable from the Star Wars movies. It will also be interesting to see what the court determines in the Marvel case.
The next point is really the problem. As long as high fidelity copying could only be done by humans – and a very few, dedicated humans – it was easy to believe that some very subtle but nonetheless unique work went into ‘capturing’ the ‘essence’ of the image. While contemplating the modern advent of the ‘author’ construct, Boyle (1988) thought that “the most cursory historical study reveals that ‘medieval church writers actively disapproved of the elements of originality and creativity.’” He then quoted Ernst Goldschmidt’s (1969) conclusions that medieval theologians “valued extant old books more highly than any current writings or books and they put the work of the scribe and the copyist above that of the author. The real task of the scholars [was] … a discovery of great old books, their multiplication and the placing of copies where they would be accessible to future generations of readers.”
Goldschmidt’s (1969) conclusion about the relative position of scribes and authors describes something more than the lower station occupied by authors in pre-modern times; his comment must be read against the technological level of medieval times. Prior to the printing press, the accurate scribe or copying provided a very valuable, uniquely human skill. In the technological situation our players find themselves, they have been given a template upon which they must create a unique variation. Does this make them a scribe in George Lucas’ universe or authors of their own destinies?
To a medieval pair of eyes, the scribe’s work seemed far less ‘mechanical’ than it does to us. To return to one of Nozick’s (1974) ideas – the juxtaposition of the creative and the mechanical – if scribe copying seemed less mechanical back then, it probably seemed more ‘creative’ back then. What is the proper analogy? Perhaps in medieval times, the scribe’s skills appeared like the airline pilot’s skills appear to us: we know what the pilot does, we know that pilots do the same thing again and again, but we also think that each time they land a plane they employ skill, finesse, and intuitive judgments unavailable to most of us and not yet reduced to mechanical algorithms. This is analogous to what goes on is virtual worlds. We know Jedi knights go on adventures and maintain the peace in the universe. But each adventure they have requires that they employ skill, finesse, and intuitive judgement. Scribes were, in the medieval context, understandably special, as are Jedi knight in the virtual context.
Has technology foiled this equation? It is no accident that realism in painting waned as photography waxed. It has become harder to see ‘personality’ in painstaking reproductions of images or sounds. What personal meaning can be conveyed in doing what a machine can do? And as our machines have become more clever and adept, the problem has become more severe.
Reproduction remains, however, a means by which we can see the sourcehood interest in very non-creative labour and where the legal system does not permit rights to flow from that interest. Gracen had an understandable attachment to her work – something Judge Posner may have implicitly recognized in permitting her to continue to use her Dorothy image in her own portfolio. At the margins, we might find that the fair use doctrine, for example, gives some breathing space to sourcehood interests in reproductions – but not much. (Hughes, 1998)
Property rights are conventionally justified in terms of economic efficiency, but in the sphere of intellectual property such justifications, however convincing, do not have a strong empirical basis. (Greene, 2004) ‘Personhood’ interests can also be used to justify property rights or, in some cases, rules bending or mitigating the effect of property rights. Behind the shield of property rights, personhood flourishes in our homes, automobiles, clothes, computers, and the things we collect – be it art, baseball cards, music, pottery, virtual swords, light sabres, or trophies. In the world of artistic and scientific creations, personhood interests take a different turn. It often seems that an individual’s personality is already ‘expressed’ in an intellectual property res. Courts have recognized the ‘personal expression,’ ‘creativity,’ ‘genius,’ and ‘intellectual labour’ of intellectual property – all intimating that protection of the creator’s personhood interests is at issue.
But beyond saying that someone’s personality is expressed in an intellectual work, is there anything more we can say about the personhood interests? This chapter has argued that creativity or personal ‘expression,’ personal ‘intention,’ and ‘sourcehood’ are three candidate conditions for personhood interests, with varying degrees of protection possible for each. Along the way, creativity has been presented as a complex notion that serves as an equally good explanatory device for recent copyright cases which deconstructionist scholars have criticized as relying unduly on the ‘romantic author’ construct. I have proposed that the concept of intentionality may explain personality interests in research programs and photojournalism. This sort of personality interest may help explain occasions when we grant property protection as well as occasions when courts deny rights, but we feel a tug of regret that we cannot grant those rights.
In the end, the process of intellectual exploration – whether it is modern painting, Darwin’s voyages, or gaming in virtual worlds – may be much the same. Whether we call it a profession or a preoccupation, when we return to the same activity again and again, what we learn in the exploratory process transforms us. In this spiral of activity we explore, digest, create, transform ourselves, and explore again.
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