Property Law: Intellectual Law and Copyrights
Brian Rice
The yearning to have exclusive rights to own, use or possess some-thing seems to be an innate characteristic of humans. Long before the first codified property laws, humans have acted to position themselves to be the owners of property. Scientists give us evidence of this yearning to own property by describing the behaviors of ancient hominids. Scientists believe that the earliest hominids may have used caves as shelters, as well as acted to gather seeds, fruits, nuts and other edible plants. [1] The behavior of early hominids to lay claim to caves and possess food to eat is evidence of some basis of entitlement to the exclusive use and enjoyment of the food and shelter (the property). While the motivational basis for the feeling of entitlement could have been internal (driven by what Maslow describes as instincts to survive), [2] external (based on behaviors learned from others), or a combination of both, [3] this behavior signified the manifestation of inevitable disagreements between the hominids about who should own the property.
For instance, should hominid “Joe” be entitled to seize and claim title to the fruit that hominid “Sam” labored to gather when Sam simply placed the food down on the ground to assess what he had gathered? We have since evolved into a much more advanced society than the early hominids and we have case law such as Pierson v. Post, which could be relied upon to settle our hypothetical dispute between Sam and Joe. [4] Not only did our societal evolution manifest laws to settle basic property disputes, it also yielded additional property classes which seemingly complicate the application of the traditional scope of Pierson, in that the issues involved are such that they apparently complicate the rule of capture. [5] One such property class that presents more complicated issues to consider is intellectual property. Intellectual property is distinguished from real and personal property in that it is something that has never existed. It is a unique, newly created intellectual work which originates in one’s mind. [6] With intellectual property’s unique nature, intellectual property fashioned the need to view the rule of capture under a different mechanism than its counterparts. As a result, to establish protection under intellectual property law, the petitioner bears the additional burden of establishing the moment and or process of creation that real and personal property is not required to bear.
Pierson v. Post
To begin this discussion, we look to Pierson v Post, which is a seminal case that established the right of capture that courts rely upon as a basis to settle property disputes where ownership, or title to a property may be at issue. In Pierson, Post expended time, energy and resources into hunting a fox. Pierson, who was being vindictive, observed the efforts of Post and intervened to kill and carry away the fox before Post could capture the fox. Post argued that he should have title to the fox because of the efforts he put into hunting the fox. The court ruled that the right to title is not extended to the hunter simply because the hunter engaged in hunting the animal, but in order for the hunter to be entitled to title, the hunter must have either mortally wounded animal, or cornered the animal in such a manner that the capture was imminent. [7]
From the court’s holding and rationale, we can observe that while one’s effort might be commendable, it is the relationship that exists between the effort put forth to capture, coupled with the resultant effect of that effort in its support of the possibility of capture that the courts rely upon to settle property ownership disputes, especially of the Pierson nature. I agree with the court’s holding and rationale in Pierson. Importantly, we can differentiate the Pierson dispute from an intellectual property dispute in that the property at issue (the fox) already existed. Thus, neither Pierson, or Post had to bear the additional burden of establishing the moment and or process of creation of the fox. They merely had to explain their interaction with the fox as it related to their claims to title. Thus Pierson, supports my assertion that to establish protection under intellectual property law, the petitioner bears the additional burden of establishing the moment and or process of creation that real and personal property is not required to bear. Yet, to solidify my claim, it is necessary to provide the details that prove that standing in an intellectual property dispute is at least based on the fact that the petitioner must provide evidence of the moment and or process of creation of the intellectual property.
Intellectual Property
A concise description of the purpose of intellectual property law is that intellectual property law protects what is created in the mind. [8] Deductive logic rationalizes that intellectual property is a thing that is created from mental thought and a definitive, legal definition of intellectual property states that “intellectual property is a category of intangible rights protecting commercially valuable products of the human intellect.” [9] The intellectual property category includes trademark, copyright, and patent rights. [10] While these will be the areas we will discuss, intellectual property also covers trade secret rights, publicity rights, moral rights, and rights protecting one from unfair competition. [11]
To evidence the requirement that the petitioner must provide evidence of the moment and or process of creation of the intellectual property, we look to Feist. [12] In Feist, The Rural Telephone Service Company, Inc. refused to give a license for Feist to use copyrighted material that they publish in their telephone directories. Feist went ahead and used the materials in its own publications despite not having a license do so. Rural then sued Feist, claiming copyright infringement. [13] The court made some interesting observations that continue to support my assertion that to establish protection under intellectual property law, the petitioner bears the additional burden of establishing the moment and or process of creation that real and personal property is not required to bear. The first observation was that in order to establish a case for copyright infringement, the plaintiff must prove that: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” [14]
While the ownership of a valid copyright could be argued to be synonymous with having a receipt for purchase in a personal property dispute, the method of obtaining the receipt of purchase does not require any special conditions other than making a purchase. Yet, to obtain a copyright, one must have a requisite standing in holding a minimum degree of originality. In defining “originality,” Black’s law tells us that what is considered to be original is a product of independent creation which has a minimum degree of originality.” [15] Because of this, we can observe a particular burden associated with intellectual property which is not required with real or personal property. Then, to further differentiate the complexity of intellectual property from real and personal property, Feist went on to explain that mere facts cannot be intellectual property because while one may be the first to discover a fact, it is not the fact that was a new creation. Rather, what was notable was the “discovery” of the fact. That act of discovery, which brought the existing condition to our attention, was that which was new. [16] Once again, we see the court supporting my assertion that to establish protection under intellectual property law, the petitioner bears the additional burden of establishing the moment and or process of creation that real and personal property is not required to bear.
In addition, the court also considered the manner in which the Feist information was arranged to discover if there was any originality in the way the information was publicized by Rural with would support any creativity requisite under copyright law. In the end, because of the complexities of intellectual property, the Feist court held that even though Feist did copy and use Rural’s information, the use did not constitute copyright infringement. Thus, we see that intellectual property rights are dependent on issues such as originality and in Feist, this originality paves the way to establish a copyright. Whereas these requirements are not requisite in real and personal property. While we keep in mind that there are similar originality requirements to establish standing in patent and trademark cases, at this point, I thought it might be best to briefly discuss real and personal property to show how these types of property classes support my assertion that they do not bear the additional creative burden as does intellectual property in. To do this we first look at real property.
Real Property
Real property is defined as land and anything growing upon it, attached to it or erected on it.[17] The definition continues to inform us that real property does not include those things which may be severed from the land without damage to the land.[18] Because real property already exists it is reasonable to argue that the burden of creativity which is associated with intellectual property cannot be associated with real property. For example, even if we look to the land reclamation in the South China seas, it might be said that China is manufacturing islands.[19] In fact, almost 3200 acres have been reclaimed or manufactured by China. [20]Yet, a similarity exists between the South China Sea reclamation and the rationale in Feist. [21] Remember that the Feist court held that a fact was not copyrightable. The court opined that because the fact already existed that it was not the fact itself that could be considered to be new, but rather it was the act of the first discovery of the fact that was indeed new.
Hence, what could be copyrightable was not the already existing fact, but the copyrightable element could be the manner in which the facts were publicized. [22] This rationale can be applied to the land reclamation acts in that while one could claim new islands were being manufactured, the bottom line is that material which already existed was placed upon land which was submerged under water to raise the level of the already existing material to be above sea level. Hence, while in a real property sense, the land itself could not be subjected to the creative requirement inherent to intellectual property, but the process, or machinery required to reclaim the land is certainly a product of intellect. Thus, these processes or tools could be afforded intellectual property protections. In addition, when a dispute such as ownership of real property is at issue, courts do not rely on a creative requisite to resolve the issue. Rather, for instance, in an adverse possession dispute, courts consider whether the required elements of adverse possession have been met.[23] Those elements are briefly: actual possession; open and notorious possession; exclusive possession, hostile or adverse possession and continuous possession. In adverse possession, just as in all other real property areas, one will not find the intellectual “originality” requirement found in intellectual property. Thus, this is yet another example supporting my assertion that to establish protection under intellectual property law, the petitioner bears the additional burden of establishing the moment and or process of creation that real and personal property is not required to bear.
In moving forward, we look at the relationship between the creative requirement of intellectual law versus personal property doctrines. Personal property is defined as any moveable or intangible thing that is subject to ownership and not classified as real property.[24] Perhaps personal property holds the closest relationship to intellectual property in that many items of personal property have a basis in intellectual property. For instance, in Cheney Bros., while the issue was Cheney’s claim that Doris Silk had copied its intellectual property design, for the purpose of this example, we evidence the intellectual basis of personal property simply from the existence of the finished silk garments.[25] While after the garment has been manufactured and sold to the end user, possible disputes between parties over ownership of the individual garment item might manifest. Resolving this type of dispute could be as simple as one party producing a sales receipt for the item, but surely the resolution of the dispute will not require one party to prove some type of creative input into the production of the item. These real property and personal property examples give strong evidence that the creative burden does not exist in real and personal property issues and that the burden is only applicable when the case at bar involves intellectual property.
[1] Food, Clothing and Shelter, ushistory.org, http://www.ushistory.org/civ/2b.asp (last visited Mar 22, 2018).
[2] Lloyd Greene & George Burke, BEYOND SELF-ACTUALIZATION, 30 Journal of Health and Human Services Administration 116–128.
[3] Christian Smith, Moral, believing animals: human personhood and culture 11 (2003).
[4] Pierson v. Post, 3 Cai. R. 175 (1805).
[5] Id.
[6] Bryan A. Garner, Black’s Law Dictionary 881 (9th ed. 2009).
[7] Pierson, supra, note 4.
[8] John G. Sprankling & Raymond R. Coletta, Property: a contemporary approach 237 (3rd ed. 2015).
[9] Bryan A. Garner, Black’s Law Dictionary 881 (9th ed. 2009).
[10] Id.
[11] Id.
[12] Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991).
[13] Id. at 343.
[14] Feist, supra, note 12, at 363.
[15] Garner, supra, note 9, at 1210.
[16] Feist, supra, note 12, at 364.
[17] Garner, supra, note 9, at 1337.
[18] Id.
[19] Lolita C. Baldor, China has reclaimed 3,200 acres in South China Sea, Pentagon says PBS (2016), https://www.pbs.org/newshour/world/china-has-reclaimed-3200-acres-in-south-china-sea-pentagon-says (last visited Mar 23, 2018).
[20] Id.
[21] Feist, supra, note 12.
[22] Id.
[23] D. Barlow Burke & Joseph A. Snoe, Property: examples & explanations 82 (3rd ed. 2008).
[24] Garner, supra, note 5, at 1337.
[25] Cheney Bros. v. Doris Silk Corporation, 35 F.2d 279 (2d Cir. 1929).