What's in a Name?: The Troublesome Analogies between Real and Intellectual Property

44 Pages Posted: 11 Aug 2004

See all articles by Stewart E. Sterk

Stewart E. Sterk

Yeshiva University - Cardozo Law School

Date Written: August 10, 2004


Increased use of the intellectual property label to describe copyright and related areas of law has spawned analogies to the protections afforded real property. These analogies ignore significant differences between the foundations that undergird real and intellectual property rights. In particular, real property rights operate to avoid breaches of the peace and tragedies of the commons - problems that do not arise with intellectual works, while copyright and other intellectual property rights are designed to provide an incentive to create, an incentive irrelevant when land is at issue. These disparities in justification caution against routine importation of real property concepts into copyright law.

After exploring the weak correlation between justifications for rights in land and in works of authorship, the article explores how the disparate justifications should and do shape doctrine. In particular, the article suggests that differences in duration of rights, in the scope or the right to exclude, and in the availability of injunctive relief can be explained by differences in justification for property rights. The article then turns to the interplay between copyright and contract, and suggests that here, too, the difference in foundation for real and intellectual property rights cautions against resort to easy analogies to resolve unique and difficult problems.

Keywords: intellectual property, property

Suggested Citation

Sterk, Stewart E., What's in a Name?: The Troublesome Analogies between Real and Intellectual Property (August 10, 2004). Cardozo Law Legal Studies Research Paper No. 88. Available at SSRN: https://ssrn.com/abstract=575121 or http://dx.doi.org/10.2139/ssrn.575121

Stewart E. Sterk (Contact Author)

Yeshiva University - Cardozo Law School ( email )

55 Fifth Ave.
New York, NY 10003
United States
212-790-0230 (Phone)
212-790-0205 (Fax)

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