Self-Help in Intellectual Property: Is it Worth Being the Bad Guy?
Gus Longer is a J.D. candidate, 2021 at NYU School of Law.
In their recent article, Taking Intellectual Property into Their Own Hands, Professors Amy Adler and Jeanne Fromer analyze one of the most volatile intellectual property developments playing out in the public eye: self-help. Steeped in folk notions of propriety, aggrieved creators with weak legal claims for relief have increasingly taken extra-legal action, emulating the titular vigilante from 2004’s rightfully forgetten The Punisher, who philosophized that in order to “shame” the law’s inadequacy, it was necessary to act outside it and “pursue natural justice.” As the authors establish, each of the benefits for those employing self-help are offset by startling costs, which are “borne almost entirely by the public or the alleged infringer.” (1530). At the same time, “[t]he advantages of self-help over law are so significant that a lawyer may be remiss not to advise a client whose work has been copied to consider self-help rather than litigation.” (1510).
While some victims of copying have turned to social media to outright shame their appropriators—or benefitted from the efforts of dedicated blogs and social media accounts to vindicate their claims in the court of public opinion—without more, such posts threaten to further enmesh us “in a culture governed more by shame than law.” (1459). Adler and Fromer approvingly cite the James Turrell/Drake beef that never was as an example of creators and lawyers who settle their scores more artfully. While Drake’s “Hotline Bling” video clearly took its visual cues from Turrell’s work, Turrell would have had difficulty establishing in a court of law that “what Drake copied was copyrightable in the first place” and that Drake could not make out a compelling fair use defense. (1491). Therefore, Turrell and his lawyer confected “an appropriation-laden blog post,” which went viral, rocketing the artist’s fame well beyond the art world (thereby very likely increasing the market value of his works) and avoiding the possibility of misattribution, ensuring that there was no indication of his “having sold out” with respect to a music video with over one billion YouTube views and countless more memes. (1492).
The authors also praise aesthetic self-help, which can shame copyists and benefit the public through refashioning the “supposedly improper copy into a new work of art.” (1459). From the exploitation of the new works, creators could conceivably make up any monetary damages, increase their reputations, and dispel confusion in the marketplace. Of course, while self-help allows a creator to get the last laugh and be the bad guy, such reputational dividends nonetheless risk contributing to “negative cycles of feuds and lawlessness.” (1459). The greatest damage is likely to be done by the many creators emboldened by a folk law understanding of their rights, who will shame their way directly to natural justice, leaving critical procedural protections by the wayside and obliterating the “nuances of intellectual property laws” that are continuously being refined to “internally balance competing considerations between protection and freedom to copy.” (Id.).
As Adler and Fromer conclude, “intellectual property self-help is here to stay whether we like it or not” (1530). Of course, whether we like it or not is of no importance—self-help consultation may prove to be a critical service for intellectual property lawyers going forward, thus begging questions about what should distinguish responsible and creative lawyering and, ultimately, what should justify legal action henceforth. Judicious legal intervention is called for as “enforcement of intellectual property rights through traditional legal means now brings its own risk of being shamed.” (1512).
It is worth noting that the negative policy implications are negligible when self-help promises clients remedies with “low administrative and financial costs when the underlying rights and violation thereof are clear.” (1505). It would be a much closer case were the violation to be anything less than black and white, since appeals to self-help by definition have no mechanisms to ferret out “baseless claims [or] unjust accusations.” (1518).
As I follow Adler and Fromer in being partial to aesthetic self-help measures, I wonder if one partial solution is to know your clients’ markets and welcome self-help in certain areas of creative endeavor (e.g., fine arts) where the enforcement of intellectual property rights ought to be relaxed. The authors suggest that “as the entire archive of past creative works becomes more accessible, creators will have access to more past works to build on and copying will likely play an even more significant role in creativity.” (1530). Given the prevalence and necessity of copying for the arts, self-help ought to increasingly police the arts where flourishing should be measured as a matter of aesthetics.