ISHTIP at Penn, part 2

Early Career, Panel 2 | Fiona Macmillan (Birkbeck, University of London), Moderator
Monica Huerta (Duke University) | Some Singularities, Like the Human Face
Famous Sarony photo of Oscar Wilde: signature at bottom is photographer’s.  Problem of photographic copyright, familiar to literary/photographic critics: is a photographer analogous to a literary author and if so how. Can you discern intent from photos?  Portrait of a person that could be the expression of someone else’s creativity. History of theatrical performance bears on the issue—a shift in acting practices. Undertheorized aspect: debt of history & photography to the theater.
Visible expression of authorship linked to Sarony’s ability to dictate/manipulate otherwise highly personal issue of what Wilde looked like/how he moved/how he positioned his face. Authorship was itself an abstraction known only through its effects on others.
Mere reproduction wouldn’t be copyrightable.  Christine Haight Farley discusses history of photography—some photos as reproduction/others as authored—and argued that this distinction served to preserve the evidentiary status of photos uses in legal cases. Relied on Sarony’s arrangement of the scene depicted, not the mere fact that he took a photo.  Photo itself was somewhat beside the point (button pushing).
So why was arranging artful enough to qualify for ©? Sarony sought to move beyond conventionality of the pose, which also describes contemporary shifts in theatrical practice from melodrama towards realism. Sarony marketed his business as about attentiveness to posing.  Sarony has a patent for a posing apparatus.  The poses shown do not correspond to any particular conventional emotional state—the point was that Sarony could pose the model in many ways.
Shift to realism in acting: how they mobilized actors’ bodies differently on stage in a way that resonates w/Sarony’s arrangement.  Previous ideas of acting: poses corresponded to specific emotional states; involuntary movements should be minimized.  But new theater trained “involuntary” movements and valued “realistic” portrayal. 
Sarony may have asked Wilde to soften his eyes/tilt his chin; also may have arranged Wilde’s face outside Wilde’s own control to make Wilde’s image into Sarony’s expression.  Early film directors “produced” expressions in actors through catching them off guard and relying on the camera to catch their involuntary reactions.  Author-function was absent from the objects viewers saw; director became an author—a modern notion. Before then, in the late 19th century, actors often chose their own costumes. Struggle for authorial control had been between playwrights, managers, and actors; but then directors began to have control not just over staging but also over actors’ performances. 
Sarony’s arrangement was thought to include arranging Wilde’s facial expressions.  Counsel for the litho. company contended that Sarony couldn’t invent or create Oscar Wilde.  Jane Gaines: Wilde’s face was a “guarantee” of private property. A natural no-trespassing sign. But Gaines treats the face too abstractly.  In Sarony, Justice Miller described purposefully unequal and imbalanced exchange between photographer and photographed.  The ability to distinguish private property from language held in common was a problem in copyright—distinguish language that had become personal enough to be property; the assumption that faces were utterly individual provided unstable but good-enough proof that an author could manipulate language enough to become an owner; the concept of “face” was often invoked to explain/justify originality.  E.g., the discourse included claims that a literary work that is original, like a human face, will always have distinguishing features.
Q: industry considers playwrights the authors; directors aren’t given formal legal rights to their work. Does the difference b/t theater, where you have conscious authorship in the form of the playwright, change the equation compared to a photo, where there are no other conscious authors?  You equate photographer with director who imposes vision on subjects.  In photo that ends, but in play you have a separate person also trying to impose vision on subjects, the playwright.
A: Contexts of authorship matter: how it is that intention gets traced through various forms, and how it leaves traces/becomes identifiable.  The usefulness of thinking about directors: how arranging is understood as authorship. 
Q: does the director become less of an author/coauthor because of the playwright?
A: maybe not.  Authorship in a play is the playwright’s when you read it; when you watch a play it doesn’t diminish the authorship of the director.
RT: I think that answer is incomplete—the director doesn’t get authorship because we’ve already picked an author and the US is bad at joint authorship through orthogonal contributions.  Rather it seems to be the separation between the person being arranged and his or her own control over self-presentation that lifts authorship up and enables it to be placed somewhere else: actor can also be seen as instrument of playwright—consider discourses about playwrights as authors and their relations to actors.
A: yes, what’s interesting is that separation, where the author no longer needs to be identified with her face, as long as there’s some object/face to identify her with.
Q: Garcia v. Google: actor couldn’t have copyright in the film—still very contentious. Cultural incapacity to embrace the division between authorship and law (or maybe authorship and embodiment).
Douglas O’Reagan (University of California, Berkeley) | Technical Know-How in Postwar Business and Law
Know-how and related terms used heavily by businesses (Google nGram), then lawyers were brought in to figure out how to protect it.  1955: Int’l Chamber of Commerce—known how is tremendously valuable subjects of industrial property supplementing patents.  Sought protection in law.  1964: USTA said know-how was the handmaid of progress. Top 40 companies: 25% of all licenses were solely for know-how, not patents; 33% just patents; 42% mixed.  British companies had the same conclusions—patents added in as afterthought to make it seem concrete.  Spread to French, German, etc. as borrowed word incorporated into legal traditions, “das Know-How.” 
Didn’t work out in US b/c of SCt decisions in the 1970s that undermined the legal foundation of the right. Even though businesses liked idea of broad thing they could license, lawyers wanted a thing with a definition.  Kingman Brewster, HLS, 1958: called all unpatented information “know-how”—unpatentable or unpatented; may be highly personalized skill that can only be taught in person; managerial or technical expertise even if not unique.  Similar non-definitional definitions given by others.  “Almost invariably includes trade secrets”—a common phrasing in the 1960s. Tacit knowledge was part of the definition. Every article discussing know-how emphasized how hard/impossible it was to define, but still tried to do it.  “An amorphous, ill-defined glob of technology, … ever changing, like a stream of water flowing through a fish pond … like a cloud in the sky that forms, dissolves, forms again, shapes and reshapes as the atmospheric conditions change.”  Much legal interest anyway—spike in the 1940s in legal literature, up into the 60s and 70s, then a relative decline (but note that law literature grows a lot; absolute numbers stabilize rather than decline).
Legal discourse: unfair competition—an uncomfortable fit. Is know-how property? Not all of it was secret; tried to redefine secrecy to be as broad as possible, or misappropriation.  General consensus was that know-how had all the necessary characteristics of property: could be sold, taxed, assigned, etc.  IRS case: they cared whether it was capital asset being sold or was it a personal service w/people going abroad?  IRS had its own taxation jurisprudence.  Is know-how akin to patents?  Courts were more familiar w/patents; easier fit if you could have a simple analogy.
Antitrust: in background, along w/founding of Fed. Cir. in 1982.  Know-how would never expire, unlike patents.  Monopoly problems?  SCt said that trade secret law was enforceable despite patent law; but litigants argued that it was acceptable b/c it only dealt w/ misappropriation of secret knowledge—the idea of know-how got shrunk down to trade secrets; shift to advocating for Uniform Trade Secrets Act.  Know-how is still out there; licenses are still out there.  European laws cover know-how; talk about it at least as much as trade secrets, maybe more.  But American courts don’t know what to do w/it unless reducible to trade secrets.  Developing countries saw accessing know-how from the West as a way to get around being enslaved by unusable patents/exploited by companies who set up turnkey factories whose employees would never learn how to run the plant if the company left.  Important in discussions of trade secrecy and technology transfer to keep a focus on changing understanding of what that means.
Q: status of different types of knowledge—shift to data and statistics—is that part of the picture?  Is the patent part of knowledge overemphasized from a policy perspective, esp. in relation to the development agenda?
A: Yes, you’ll be shocked that I think the stuff I study is more important than has been recognized by other people. JPatents are easy to count, so people use them to measure innovation, and measure effects of things like changes in enforceability of noncompete agreements on patents. But businesses find patents to be relatively narrow, sometimes useful and sometimes not.  Some know-how is patentable but people didn’t want to spend the money; didn’t want to deal w/int’l issues; didn’t want to disclose. 
Michael Madison: once you’ve identified something of value, temptation is to ask “how do we protect it?” but that’s often not the most interesting question.
A: yes, I come out of history of science, technology embedded in human experience. 
Jessica Silbey: IP lawyers use the word know-how but wouldn’t tell me how they used it in their contracts.  Hard to figure out what they meant, but they in were signalling to the people they were negotiating with about the status of their client, rather than about transfers.  Can be reputational.
A: Many modern know-how agreements aren’t strongly premised on enforceability in court.  We probably can’t prove you didn’t give us the know-how but it’s an element we can hassle about.
Brent Salter (Yale) | Copyright, Authority and the American Theatrical Impresario (1896-1926)
Theater literature charts contests over copyright authority through an economic frame of reference, but issues of artistic control in contractual practices; emergence of right of integrity shows how control was asserted.  Critical actor facilitating movement of copyright is the cultural intermediary/entrepreneur in different guises—producers, agents, publishers, acting as symbolic bankers proclaiming the value of the authors they defend.
Intermediary not just as facilitator of movement of creativity, but also opportunistic, inefficient, counterintuitive—gap between production and consumption.  Sustained attempts to expand rights to authors, successful on legal level, but market was still in chaos.  Schuberts’ syndicate created a system in which they were in central position for publication, theatrical adaptation, traveling production, and ultimately film adaptation.
Younger playwrights suffered, according to historical consensus—alleviating risk required more generic works and tested authors. 1926: writers’ minimum basic agreement.  One area of significant inconsistencies is subsidiary film rights.  Theater literature IDs 7 examples around 1925 of producers taking control; but in the syndicate/Schubert collection, there are examples from 10 years earlier.  Fox Film Corp.: galvanized dramatists/minimum basic agreement where one had failed three previous times.  But even more striking about pre-1926 contractual relationships is emergence of contested clause about artistic control, not present in late 19th century. What’s contested is the integrity of the work.  Attribution clause in contracts appears uncontested—author must be ID’d in all publicity, except in employer/employee relationships.
Sample of 300 contracts: either silent on artistic control, 38% (no clause about changes to text); 20%–clear the playwright has control over additions/changes to script and may also control casting or other production aspects; 15% tries to find middle ground (balanced clause: author’s consent required to make changes, but consent must not be unreasonably withheld; or requires acceptance of changes made of necessity); 27%–contracts where it’s clear the producer has control/express right to change the text w/o author consent.  Some contracts just cross out the playwright control clause; others add language. Dramatists’ Guild claimed ability to negotiate favorable terms highly dependent on experience—but the empirical evidence is bumpier than that.  There are some examples where pro-writer contract was late in career, some were able to negotiate control early in career.  Strong pro-producer clauses also came both late and early in careers.  Many contracts exist where the playwright only has one or two productions after—perhaps the artistic climate was a deterrent to continuing work. May be some correlation b/t experience and negotiation power, but far from conclusive: much more flexible. 
There is a correlation between significant changes in scripts and pro-producer clauses. Not exclusively a writer-driven process, but continually undergoing modification from contract to contract. Also changed in the rehearsal room: a product of opportunism but also flexibility that perhaps wasn’t codifiable.  There was still a desire to codify, though.  Enshrining a right of artistic control in the 1926 uniform agreement didn’t result in a more harmonious or even protective environment. By 1927 Schubert commenced antitrust proceedings against the Dramatists’ Guild—alleged monopoly of new intermediary, the trade association.  Schuberts settled with guild again in 1941.  In commercial and noncommercial theater, producers continued to contract around the rules for artistic control, and they’d practice around the rules in the rehearsal room.
Writers have struggled to renegotiate labor agreements. What role is the law playing? © framework assumes authors armed w/bundle of rights that can be transferred out. History suggests that it’s more constructive to think about contested information flows, w/© as adjunct/administrative starting point.
Q: to what extent are the contracts reflective of actual practices?
A: I’m looking at the correspondence surrounding these documents too—scripts that reflect changes; trying to figure out how that happened. Link scripts to dramaturgical notes to correspondence to say where authority lies.
Legal literature suggests directors lack rights and playwrights have it all; but the history doesn’t suggest that’s how it works in practice.  Contemporary theater literature is strikingly different. Organizational structure—playwright as part of a company—has a history of contests that lawyers should look more carefully at, not just the doctrinal issues they are obsessed w/.
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