B.Acquisition by Creation

Excerpted from Dukeminier：Property

An observer has argued that the following principle “is part of the common law”：

Any expenditure of mental or physical effort，as a result of which there is created an entity，whether tangible or intangible，vests in the person who brought the entity into being，a proprietary right to the commercial exploitation of that entity，which right is separate and ndependent from the ownership of that entity.[D.F.Libling，The Concept of Property：

Property in Intangibles]

The assertion is that if you create something–if in that sense you are first in time–then that something is most certainly yours (and presumably yours alone） to exploit，because，Libling argues，“the foundation of proprietary rights is the expenditure of labour and money (which merely represents past effort）.” So the underlying idea seems to derive from John Locke，who reasoned that you own the fruits of your labor in consequence of having “a property in your own person”.

The trouble is that the fruits of your labor are not always yours alone to exploit，and you do not always have full rights of property in your person.Why？

Consider the following.

Cheney Brothers v.Doris Silk Corp.

United States Court of Appeals

Second Circuit，1929

35 F.2d 279

cert.denied，281 U.S.728 (1930）

LEARNED HAND，J.The plaintiff，a corporation，is a manufacturer of silks，which puts out each season many new patterns，designed to attract purchasers by their novelty and beauty.Most of these fail in that purpose，so that not much more than a fifth catch the public fancy.Moreover，they have only a short life，for the most part no more than a single season of eight or nine months.It is in practice impossible，and it would be very onerous if it were not，to secure design patents upon all of these； it would also be impossible to know in advance which would sell well，and patent only those.Besides，it is probable that for the most part they have no such originality as would support a design patent.Again，it is impossible to copyright them under the Copyright Act or at least so the authorities of the Copyright Office hold.So it is easy for any one to copy such as prove successful，and the plaintiff，which is put too much ingenuity and expense in fabricating them，finds itself without protection of any sort for its pains.

Taking advantage of this situation，the defendant copied one of the popular designs in the season beginning in October，1928，and undercut the plaintiff’s price.This is the injury of which it complains.The defendant，though it duplicated the design in question，denies that it knew it to be the plaintiff’s，and there thus arises an issue which might be an answer to the motion.However，the parties wish a decision upon the equity of the bill，and since it is within our power to dismiss it，we shall accept its allegation，and charge the defendant with knowledge.

The plaintiff asks for protection only during the season，and needs no more，for the designs are all ephemeral.It seeks in this way to disguise the extent of the proposed innovation，and to persuade us that，if we interfere only a little，the solecism，if there be one，may be pardonable.But the reasoning which would justify any interposition at all demands that it cover the whole extent of the injury.A man whose designs come to harvest in two years，in five，has prima facie as good right to protection as one who deals only in annuals.Nor could we consistently stop at designs； processes，machines，and secrets have an equal claim.The upshot must be that，whenever anyone has contrived any of these，others may be forbidden to copy it.That is not the law.In the absence of some recognized right at common law，or under the statutes–and the plaintiff claims neither–a man’s property is limited to the chattels which embody his invention.Others may imitate these at their pleasure….

Of the cases on which the plaintiff relies，the chief is International News Service v.Associated Press，248 U.S.215.Although that concerned another subject-matter –printed news dispatches–we agree that，if it meant to lay down a general doctrine，it would cover this case； at least，the language of the majority opinion goes so far.We do not believe that it did.While it is of course true that law ordinarily speaks in general terms，there are cases where the occasion is at once the justification for，and the limit of，what is decided.This appears to us such an instance； we think that no more was covered than situations substantially similar to those then at bar.The difficulties of understanding it otherwise are insuperable.We are to suppose that the court meant to create a sort of common-law patent or copyright for reasons of justice.Either would flagrantly conflict with the scheme which Congress has for more than a century devised to cover the subject-matter….

It appears to us incredible that the Supreme Court should have had in mind any such consequences.To exclude others from the enjoyment of a chattel is one thing； to prevent any imitation of it，to set up a monopoly in the plan of its structure，gives the author a power over his fellows vastly greater，a power which the Constitution allows only Congress to create….

True，it would seem as though the plaintiff had suffered a grievance for which there should be a remedy，perhaps by an amendment of the Copyright Law，assuming that this does not already cover the case，which is not urged here.It seems a lame answer in such a case to turn the injured party out of court，but there are larger issues at stake than his redress….Whether these would prove paramount we have no means of saying； it is not for us to decide.Our vision is inevitably contracted and the whole horizon may contain much which will compose a very different picture.

The order is affirmed，and，as the bill cannot in any event succeed，it may be dismissed，if the defendant so desires.

Notes：

1.In Cheney Brothers，Judge Hand mentioned International News Service v.Associated Press which is a case involving news report of World War I in Europe.INS substantially copied the news story and published its own version，sometimes faster than AP could publish.Clearly in that case，news stories are facts，and thus are not copyrightable.But under the doctrine of “sweat of the brow，” the stories are something like a “quasi-property” worthy of some protection.To what extent is that case relevant to Cheney Brs.v.Doris Silk Corp.？

2.In International News Service，Justice Brandeis offered a dissenting opinion in which he opposed the creation of a “common law copyright” and suggested that the matter be better left to the legislature.Why is that so？

3.Judge Learned Hand said，“While it is of course true that law ordinarily speaks in general terms，there are cases where the occasion is at once the justification for，and the limit of，what is decided.” What does he really mean by this in relation to INS v.AP？

4.What does Hand suggest as a proper result for the Cheney Brothers case？