9 Pages Posted: 24 Mar 2009 Last revised: 7 Apr 2009
Date Written: March 21, 2009
This commentary was delivered on March 21, 2009, at a conference sponsored by the Duke Law School Center for the Study of the Public Domain in honor of the publication of NO LAW: INTELLECTUAL PROPERTY IN THE SHADOW OF AN ABSOLUTE FIRST AMENDMENT by David L. Lange and H. Jefferson Powell. The commentary considers the converse problem of artistic creation in the shadow of an increasingly absolutist law of copyright, and notes that artists beginning with the poet we today know as Homer have achieved greatness by freely appropriating the words, images, sounds, and ideas of others. The increasingly imperial claims of copyright advanced by the United States in the global marketplace of words, images, and sounds, the essay suggests, are a direct result of the post-imperial desperation of a nation that seeks to dominate the world with only two tools -- military force and communications. It notes a comment by Professors Lange and Powell that Believing in intellectual property is like believing in Tinker Bell: we clap our hands, and it is so. The allusion to Peter Pan is apt, the essay notes, because J.M. Barrie's story of a boy who lives on a magical island where he will never grow old is a fable of the Western adventure with colonialism and cultural domination -- a domination we are now attempting to preserve in its fading years by resort to legal coercion and extravagant doctrines of intellectual ownership. But in fact the key to national survival in a multipolar world lies not in imaginary property rights to American ideas but in their syncretic vitality, for which wide freedom of appropriation is essential. The recent wave of litigation surrounding the artist Shepard Fairey serves as a metaphor for the metastasis of intellectual property concepts. Fairey is involved with a lawsuit against the Associated Press over his appropriation of an image by AP photographer Mannie Garcia of then-candidate Barack Obama. Fairey himself, however, has recently claimed ownership of the word OBEY. The current intellectual property regime, the essay concludes, resembles nothing so much as a load of politically tainted tea awaiting deposit into Boston Harbor.
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