Rhetoric and reality in copyright law

Michigan Law Review

Volumn 94, Issue 5, 1996, Pages 1197-1249

  Sterk, Stewart E ^a,b  

^a YESHIVA UNIVERSITY   (United States)

^b Och Spine at New York Presbyterian Hospitals

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[No Author keywords available]

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EID: 0039866217     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1289851     Document Type: Article

References (254)

1. The Supreme Court often has invoked an incentive justification for copyright. See, e.g., Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (1984) (noting that copyright "intended to motivate the creative activity of authors and inventors by the provision of a special reward"); see also infra section II.A.1.
2. The Supreme Court also has offered this desert justification for copyright. See, e.g., Mazer v. Stein, 347 U.S. 201, 219 (1954) ("Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.").
3. See infra Part I.
4. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. § 101 et seq. (1994)).
5. See e.g., Visual Artists Rights Act of 1990, Pub. L. No. 101-649, 104 Stat. 5128 (codified as amended at 17 U.S.C. §§ 101, 106A (1994)); Architectural Works Copyright Protection Act, Pub L. No. 101-650, 104 Stat. 5133 (1990) (codified as amended at 17 U.S.C. §§ 101-02, 120 (1994)).
6. See infra section II.C.3.
7. Statute of Anne, 1710, 8 Anne, ch. 19 (Eng.).
8. Statute of Anne, 1710, 8 Anne, ch. 19 (Eng.).
9. Statute of Anne, 1710, 8 Anne, ch. 19 (Eng.).
10. Statute of Anne, 1710, 8 Anne, ch. 19 (Eng.).
11. See generally 1 WILLIAM F. PATRY, COPYRIGHT LAW AND PRACTICE 21 (1994);
12. Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 TUL. L. REV. 991, 998-1002 (1990).
13. 1783 Conn. Pub. Acts Jan. Sess., reprinted in U.S. COPYRIGHT OFFICE, COPYRIGHT ENACTMENTS OF THE UNITED STATES, 1783-1906, at 11 (2d ed. 1906).
14. See, e.g., Mass. Act of Mar. 17, 1783, reprinted in U.S. COPYRIGHT OFFICE, supra note 12, at 1, 4-15.
15. U.S. CONST. art. I, § 8, cl. 8.
16. See 1 Copyright Act of 1790, ch. 15, 1 Stat. 124 (repealed 1831) (entitled "An Act for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies, during the times therein mentioned").
17. See 1 PATRY, supra note 11, at 465-66 (citations omitted).
18. See id. at 466.
19. Copyright Act of 1909, ch. 320, 35 Stat. 1075 (amended 1976).
20. Arguments on H.R. 11943 Before the House Comm. on Patents, 59th Cong., 2d Sess. 19, 19 (1906),
21. reprinted in 4 LEGISLATIVE HISTORY OF THE 1909 COPYRIGHT ACT pt. G. (E. Fulton Brylawski & Abe Goldman eds., 1976) [hereinafter LEGISLATIVE HISTORY].
22. 4 id. at 20.
23. 4 id. at 3. Sousa was not alone among American composers in emphasizing these dual themes. A letter signed by Victor Herbert and three others asked the committee to "[p]icture this brilliant and enjoyable scene [a magnificent church performance], but let us also not forget the one man whose brain and heart created the music and made the entertainment possible." 4 id. at 21. The Herbert letter went on to suggest the need for incentives, noting that [w]hen copies of the music are rented or borrowed and not bought, all the composer gets is glory and applause. Now, glory is all well enough, and applause to most men is sweet. But we wish to say to you, gentlemen, that glory alone will not put a coat on that man's back; it will not help him to protect his wife; nor will glory alone clothe and feed his children. 4 id.
24. Thus, in discussion at the Conference on Copyright convened by the Librarian of Congress as a prelude to preparation of the draft legislation, one participant, arguing for a life-plus-50-years term, said, "There is no reason under heaven why, in an act of this kind, the Republic should not treat its men of letters and its men of art in a way to bring them some concession for benefits which they have wrought." 1 id. pt. C, at 75.
25. See, e.g., Letter from D.P. Lewandowski, M.D., to Senator Alfred B. Kittredge, Chairman of the Senate Committee on Patents (June 5, 1906), reprinted in 4 id. pt. H, at 59 (complaining of "piracy" by phonographic reproduction) ("I feel how dreadful it is in general to suffer and to be deprived of remuneration for the just and intelligent inventive brain work which a man produces by his genius.").
26. The process began with a 1961 report by the Register of Copyrights recommending revisions to the Copyright Act and culminated with enactment of the new statute in 1976. See Copyright Act of 1976, Pub L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. § 101 et seq. (1994)). See generally 1 PATRY, supra note 11, at 74-89.
27. Copyright Law Revision: Hearings on H.R. 4347, 5680, 6831, 6835 Before Subcomm. No. 3 of the House Comm. on the Judiciary, 89th Cong., 1st Sess. (1965),
28. reprinted in 5 GEORGE S. GROSSMAN, OMNIBUS COPYRIGHT REVISION LEGISLATIVE HISTORY 100 (1976) [hereinafter Hearings on H.R. 4347, 5680, 6831, 6835];
29. see also Hearings on H.R. 4347, 5680, 6831, 6835, supra, at 93, reprinted in 5 GROSSMAN, supra, at 79 (statement of Rex Stout, President, Authors League of America) (arguing in favor of termination rights) ("The termination clause insures that the constitutional purpose of copyright, to provide incentive and reward to authors, is carried out.").
30. Copyright Law Revision: Hearings Before the Subcomm. art Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 94th Cong., 1st Sess. (1975), reprinted in 14 GROSSMAN, supra note 25, at 352 (1975) (statement of Irwin Karp, Counsel, Authors League of America).
31. Copyright Law Revision: Hearings Before the Subcomm. on Patents, Trademarks, and Copyrights of the House Comm. on the Judiciary, 93d Cong., 1st Sess. (1973), reprinted in 12 GROSSMAN, supra note 25, at 129 (1977) (statement of Ambassador Kenneth B. Keating, representing Harcourt Brace Jovanovich, Inc. and MacMillan, Inc.);
32. see also Copyright Law Revision, 1965: Hearings on S. 1006 Before the Subcomm. on Patents, Trademarks, and Copyrights of the House Comm. on the Judiciary, 89th Cong., 1st Sess. (1965), reprinted in 8 GROSSMAN, supra note 25, at 65 (1976) (statement of Abraham L. Kaminstein, Register of Copyrights) ("The basic purpose of copyright protection is the public interest, to make sure that the wellsprings of creation do not dry up through lack of incentive, and to provide an alternative to the evils of an authorship dependent upon private or public patronage.").
33. 12 GROSSMAN, supra note 25, at 130 (1977).
34. Architectural Works Copyright Protection Act, Pub L. No. 101-650, 104 Stat. 5133 (1990) (codified as amended at 17 U.S.C. §§ 101-02, 120 (1994)).
35. H.R. REP. NO. 735, 101st Cong., 2d Sess. 13 (1990).
36. Visual Artists Rights Act of 1990, Pub. L. No. 101-649, 104 Stat. 5128 (codified as amended at 17 U.S.C. §§ 101, 106A (1994)).
37. H.R. REP. NO. 514, 101st Cong., 2d Sess. 5 (1990) (quoting statement of Ralph Oman, Register of Copyrights); see also id. at 6 (quoting testimony from sculptor Weltzin B. Blix that incentives would diminish if there were a possibility that the works might be destroyed).
38. See, e.g., Hearings Before Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Comm. on the Judiciary, 101st Cong., 2d Sess. 129 (1990) (statement of Richard Carney, Chief Executive Officer, Frank Lloyd Wright Foundation) ("We feel that architecture is the mother art . . . and it's only just that architecture should be copyrighted.");
39. see also 101 CONG. REC. 12, 609-10 (1955) (Statement of Representative Markey in support of Visual Artists Rights Act) ("Artists who work in painting, drawing, and sculpture are intellectual authors who deserve protection for their works.").
40. 464 U.S. 417 (1984).
41. 464 U.S. at 429.
42. 471 U.S. 539 (1985).
43. 471 U.S. at 546.
44. See, e.g., Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) ("The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good."); Mazer v. Stein, 347 U.S. 201, 219 (1954) ("The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.'"); United States v. Paramount Pictures, 334 U.S. 131, 158 (1948) ("The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. . . . It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.").
45. 347 U.S. 201 (1954).
46. 347 U.S. at 219 (emphasis added).
47. Harper & Row, 471 U.S. at 546-47.
48. The analysis assumes that copyists instantaneously can copy the original. If the author has significant lead-time advantages - advantages that are diminishing with improvement in technology - and if purchasers are willing to pay a premium to obtain the work quickly, the author is in a position to obtain some financial return on his creative effort despite the copyist. See Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 299-302 (1970).
49. See generally William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 328 (1989) (arguing that, when the price of a book is bid down to the marginal cost of copying, the book "probably would not be produced in the first place, because the author and publisher will not be able to recover their costs of creating the work").
50. Of course, even if giving authors an expansive property right in their work created a deadweight loss, the right might be justified if no other mechanism were available to eliminate that loss without also discouraging authors from creating new works. But there are a variety of mechanisms for limiting the scope of an author's monopoly. For instance, by adjusting the time period of the monopoly or by limiting the remedies available to an author for unauthorized copying, a copyright system might reduce deadweight losses without discouraging authors from creating new works.
51. The notion that copyright turns an author into a monopolist, of course, is subject to challenge. If one assumes that the works of one author are good substitutes for the works of another, then even with copyright, the market would be characterized by competition, not monopoly. The assumption that one work is a good substitute for another, however, undercuts the major premise of copyright law's economic justification: creative activity is a valuable social good. If an existing work always furnishes a good substitute for a new work, then any energy spent creating new works would represent a waste of resources. Rather than producing new works - at high initial cost - society would be better off if we widely reproduced old works, at much lower cost. Hence, the economic rationale for copyright protection - books and other creative works would be underproduced in a market without copyright - depends upon the assumption that one book is not a complete substitute for another and that an author with a copyright does enjoy, to some degree, monopoly power. In practice, as William Fisher has noted, there is a spectrum between those books for which no adequate substitute exists and those for which there are nearly perfect substitutes. See William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 HARV. L. REV. 1659, 1702-03 (1988). As a result, copyright gives each author at least some monopoly power, and it gives greater power to some authors than to others.
52. See Landes & Posner, supra note 43, at 342-43.
53. Authors or publishers might try to market books in the same way that some consumer software is currently marketed - packaged together with "shrinkwrap" license agreements. On the enforceability of these agreements in the software field, see Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. CAL. L. REV. 1239 (1995).
54. Indeed, current copyright law recognizes, in a number of ways, the costs of copyright enforcement. The first-sale doctrine embodied in § 109(a) of the Copyright Act, 17 U.S.C. § 109(a) (1994), which permits the purchaser of a copy of a book or copyrighted book to resell or lend that copy without infringing the copyright, avoids the administrative nightmare that would result if every reseller or lender of a book were required to obtain copyright clearance. Similarly, by holding that copying television programs onto videocassette for purposes of time shifting does not constitute infringement, the Supreme Court implicitly recognized the enforcement problems that copyright protection would generate. See Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984). The current debate over library photocopying reflects similar concerns about enforcement. See American Geophysical Union v. Texaco; Inc., 60 F.3d 913 (2d Cir. 1994).
55. See Landes & Posner, supra note 43, at 343-44.
56. See Baker v. Selden, 101 U.S. 99 (1880).
57. See 17 U.S.C. § 107 (1994) (codifying fair-use defense to infringement).
58. See, e.g., Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir. 1985).
59. See Landes & Posner, supra note 43, at 349-50 (noting that a novelist can acquire many ideas at zero cost from observation of the world around him or from works long in the public domain).
60. See id. at 347-48; see also Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287, 319-20 (1988) (noting that the pool of everyday ideas available to subsequent authors would be reduced if everyday ideas were protected).
61. See Baker v. Selden, 101 U.S. 99 (1880).
62. See Hughes, supra note 54, at 320.
63. See Landes & Posner, supra note 43, at 351.
64. 17 U.S.C. § 107 (1994).
65. 17 U.S.C. § 107 (1994).
66. See Harper & Row v. Nation Enters., 471 U.S. 539, 566 (1985) (characterizing the effect of a use on the market for the original as "undoubtedly the single most important element of fair use"). But cf. William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 CARDOZO ARTS & ENT. J. 667, 693-97 (1993) (criticizing the Court's emphasis on market effect).
67. See American Geophysical Union v. Texaco, 60 F.3d 913 (2d Cir. 1994) (concluding that fair-use analysis appropriately focuses on whether a practical licensing scheme effectively could reduce the transaction costs associated with obtaining permission for reproduction of journal articles); Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 COLUM. L. REV. 1600, 1627-32 (1982); Landes & Posner, supra note 43, at 357-58; see also Fisher, supra note 45, at 1724-25 (noting transaction costs but also noting that a licensing scheme might reduce those costs significantly).
68. See Acuff-Rose Music, Inc. v. Campbell, 114 S. Ct. 1164 (1994) (noting that the role of courts in fair-use cases is to distinguish between biting criticism, which suppresses demand of a copyrighted work, and infringement, which usurps demand for the work); see also Gordon, supra note 61, at 1632-35.
69. See Acuff-Rose Music, 114 S. Ct. at 1176 ("When parody takes aim at a particular original work, the parody must be able to 'conjure up' at least enough of that original to make the object of its critical wit recognizable."). See generally WILLIAM F. PATRY, THE FAIR USE PRIVILEGE IN COPYRIGHT LAW 167 (2d ed. 1995).
70. See Fisher, supra note 45, at 1730-31 & n.303.
71. 347 U.S. 201 (1954).
72. See Carol Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir. 1985).
73. See Brandir Intl. v. Cascade Pac. Lumber Co., 834 F.2d 1142 (2d Cir. 1987).
74. See generally supra section II.A.1.
75. See Robert C. Denicola, Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, 67 MINN. L. REV. 707, 723 (1983).
76. See 35 U.S.C. § 102 (1994) (novelty requirement for patents); 35 U.S.C. § 103 (1994) (requirement that subject matter be "non-obvious"); 35 U.S.C. § 154 (1994) (20-year term for patents).
77. Indeed, even when additional copyright protection would induce creative activity, extending that protection still would be inefficient if gains from the creative activity would be outweighed by the higher costs associated with works that would have been produced even without the additional protection. See Landes & Posner, supra note 43, at 343.
78. Twenty-five years ago, however, now-Justice Breyer wrote a penetrating article questioning the need for copyright protection even in the book-publishing industry. See Breyer, supra note 42. Breyer emphasized that a variety of factors other than copyright give original authors an advantage over copiers, making the case for copyright protection "uneasy."
79. See Amendment to an Act to Promote the Progress of Useful Arts, 13 Stat. 533 (1865); see also 1 PATRY, supra note 11, at 43.
80. 111 U.S. 53 (1884).
81. Cf. Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 146 (S.D.N.Y. 1968) (emphasizing the public interest in having full information about President Kennedy's assassination and upholding as "fair use" a book's use of photographs made from Abraham Zapruder's home movies of the assassination).
82. Moreover, in an environment where the cost of advertising space in the media may dwarf the monies spent on the creative aspects of an ad campaign and where advertisers feel the competitive need to change campaigns frequently, the claim that copyright induces creativity in advertising becomes especially implausible.
83. 188 U.S. 239 (1903).
84. For an article arguing that Bleistein should be legislatively overruled, see Douglas O. Linder & James W. Howard, Why Copyright Law Should Not Protect Advertising, 62 OR. L. REV. 231 (1983).
85. Cf. Landes & Posner, supra note 43, at 344 (emphasizing the importance of administration and enforcement costs in any copyright system).
86. 17 U.S.C. § 101 et seq. (1994).
87. 17 U.S.C. § 106(2) (1994).
88. Even when returns on the original work are currently dwarfed by returns on the derivative work, it is not inevitable that the author would stop writing or the publisher would stop publishing if derivative work protection were abolished. The market might adapt to changing legal conditions. For instance, legal treatises and other trade books frequently are written and published to sell at relatively low prices, with the expectation that captive consumers later will pay higher prices for "updates" that authors can produce cheaply and quickly. If the updates were not protected as derivative works, authors and publishers might face competition in the production of updates. As a result, the price of the original work might rise to reflect the cost of production. Consumers, however, would be likely to recognize that this higher cost would be offset by lower maintenance costs. If they do, eliminating derivative-works protection would have little impact on the production of these works.
89. See Landes & Posner, supra note 43, at 354.
90. See id. at 355.
91. See id.
92. The Copyright Act of 1790 provided for a 14-year copyright term, followed by a 14-year renewal term. The renewal term was available only if the author was still alive at the expiration of the original term. See Copyright Act of 1790, ch. 15, § 1, 1 Stat. 124, 124 (repealed 1831). In 1831, Congress expanded the original term to 28 years and made the 14-year renewal term available to the author's widow or children if the author did not survive the original term. See Act of Feb. 3, 1831, ch. 16, §§ 1-2, 4 Stat. 436 (amended 1909). The 1909 Act extended the renewal term to 28 years, see Copyright Act of 1909, ch. 320, § 23, 35 Stat. 1075, 1080 (amended 1976), after congressional committees rejected a proposal to substitute a single, longer copyright term. See H.R. REP. NO. 2222, 60th Cong., 2d Sess. 14-15 (1909);
93. S. REP. NO. 1108, 60th Cong., 2d Sess. 14-15 (1909).
94. H.R. REP. NO. 2222 at 14-15. A similar justification appeared in the committee report accompanying the earlier 1831 Copyright Act, which expanded copyright protection by giving a renewal right to the family of an author even if the author did not survive until the end of the initial period: "The question is, whether the author or the bookseller shall reap the reward." 7 CONG. DEB. app. CXIX (1831).
95. At hearings accompanying the 1909 Act, a congressman referred to a conversation with Mark Twain during which Twain supposedly indicated that much of the benefit he derived from copyright came during the renewal period. See Hearings on Pending Bills to Amend and Consolidate the Acts Respecting Copyright Before the Senate and House Comms. on Patents, 60th Cong., 1st Sess. 20, 62 (1908),
96. reprinted in 5 LEGISLATIVE HISTORY, supra note 19, pt. K (Statement of Rep. Currier).
97. See Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 654 (1943) (rejecting the argument that "authors are congenitally irresponsible, that frequently they are so sorely pressed for funds that they are willing to sell their work for a mere pittance, and therefore assignments made by them should not be upheld").
98. Conversely, authors with enough bargaining power to prevent assignment of a renewal term also would be able to limit assignment to the first 28 years of a 56-year term. Even those concerned about the inequality of bargaining power of authors and publishers are willing to concede that there might be some authors with power to bargain around provisions in form contracts. See Marci A. Hamilton, Comment, Commissioned Works as Works Made for Hire Under the 1976 Copyright Act, Misinterpretation and Injustice, 135 U. PA. L. REV. 1281, 1309 (1987).
99. 362 U.S. 373 (1960).
100. See, e.g., Zechariah Chafee, Jr., Reflections on the Law of Copy right: II, 45 COLUM. L. REV. 719, 721 (1945).
101. Moreover, the uncertainty the Supreme Court created about ownership interests in the renewal term also generated disincentives for another group of authors: potential creators of derivative works. Twenty years into the initial copyright term of a book, the book's author, if alive, could not assure a potential moviemaker of copyright protection that would last beyond eight years. Even if the book author assigned all rights in the renewal period, the moviemaker would have been limited to an eight-year monopoly if the author died before the expiration of the initial period. Cf. Stewart v. Abend, 495 U.S. 207 (1990). The 1976 Act since has been amended to ensure that "a derivative work prepared under authority of a grant of a transfer or license of the copyright that is made before the expiration of the original term of copyright may continue to be used under the terms of the grant during the renewed and extended term of copyright." 17 U.S.C. § 304(a)(4)(A) (1994).
102. Although the 1976 Act introduced a single copyright term, its provision for termination rights duplicated some of the features of the renewal provisions under prior law. For discussion of the termination right, see infra section III.A.2.
103. 17 U.S.C. § 203 (1994).
104. Compare Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643 (1943) (holding the assignment of renewal term by original author binding when original author is alive at time for renewal) with Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960) (holding that the original author's assignment of renewal rights does not cut off rights of statutory successor if author dies before renewal time).
105. See 17 U.S.C. § 203(a) (1994).
106. Indeed, generating the appropriate incentives for works of inspiration is notoriously difficult. For instance, generous federal government support for art and artists - particularly during the great Depression - has been attacked for producing mediocrity. See Marci A. Hamilton, Art Speech, 49 VAND. L. REV. 74, 112-19 (forthcoming 1996) [hereinafter Hamilton, Art Speech].
107. The role of effort in creating works of genius is not well understood. As Howard Gardner has written: "Some of the artists who have left records of their thoughts about their work have emphasized the effortless ways in which ideas flow from their unconscious and are then mysteriously organized; creation emerges as an autonomous process requiring little will or intention on the creator's part." HOWARD GARDNER, THE ARTS AND HUMAN DEVELOPMENT 268 (1973). On the other hand, Gardner notes evidence of effortful labor by some of these artists, see id. at 269, and ultimately concludes that artistic creation should be conceived as "a practice of problem-solving within a given medium," id. at 270.
108. 499 U.S. 340 (1991).
109. 499 U.S. at 345.
110. 499 U.S. at 345.
111. See 499 U.S. at 352-61.
112. For a discussion of Feist indicating that condemnation of "sweat-of-the-brow" reasoning was unnecessary to reach the Court's result, see Marci A. Hamilton, Justice O'Connor's Opinion in Feist Publications, Inc. v. Rural Telephone Service Co.: An Uncommon Though Characteristic Approach, 38 J. COPYRIGHT SOC. 83 (1991).
113. Rural Telephone Service, the publisher of the "original" directory, did not have to expend much sweat to compile the directory. As holder of the monopoly telephone franchise in the area, Rural had at its disposal all of the telephone numbers of its subscribers and hence enjoyed a substantial advantage over competitors like Feist, who had no similar access to the raw data. See Feist, 499 U.S. at 342-43. Indeed, by statute, Rural was required to prepare the directory for which it claimed copyright protection. Yet, Rural attempted to argue that the copyright laws required Feist to compile its own directory from scratch - a result that would have given Rural and comparable monopoly franchisees a substantial cost advantage in the publication of directories.
114. See 499 U.S. at 359.
115. 499 U.S. at 359.
116. The Court did not explicitly prohibit state law regulation, through unfair-competition law, of copying that appropriates the sweat of another's brow, but the Copyright Act's broad preemption provision, see 17 U.S.C. § 301(a) (1994), raises questions about the permissible scope of state regulation.
117. See supra text accompanying notes 58-64.
118. See supra text accompanying notes 53-57.
119. See supra text accompanying notes 65-70.
120. See Copyright Act of 1909, ch. 320, § 23, 35 Stat. 1075, 1080 (amended 1976).
121. See 17 U.S.C. § 302(a) (1994). When a work is anonymous, pseudonymous, or a work made for hire, the copyright endures for 75 years from first publication or 100 years from creation, whichever comes first. See 17 U.S.C. § 302(c) (1994).
122. A House Report accompanying the 1976 Act put the number at 85%. See H.R. REP. No. 1476., 94th Cong., 2d Sess. 136 (1976).
123. Thus, assuming an interest rate of six percent, the present value of the right to receive a dollar 50 years from now is just over five cents; at an interest rate of ten percent, the present value of that dollar would be less than a penny.
124. See infra section III.A.2.
125. U.S. CONST. art. I, § 8, cl. 8.
126. Copyright Act of 1976, § 401(a), 90 Stat. 2541, 2576, amended by Berne Convention Implementation Act of 1988, § 7(a), 402 Stat. 2853, 2854 (codified at 17 U.S.C. § 401(a) (1994)).
127. See H.R. REP. NO. 1476, 94th Cong., 2d Sess. 143 (1976).
128. The legislative history accompanying the 1976 Act listed this function first among the four identified functions of the notice requirement: (1) It has the effect of placing in the public domain a substantial body of published material that no one is interested in copyrighting; (2) It informs the public as to whether a particular work is copyrighted; (3) It identifies the copyright owner, and (4) It shows the date of publication. H.R. REP. NO. 1476 at 143.
129. See King v. Mister Maestro, Inc., 224 F. Supp 101, 103 (S.D.N.Y. 1963).
130. The court held King entitled to copyright protection because delivery of the speech to members of the press and, in public, to 200,000 people did not constitute general publication within the meaning of the 1909 Act. See 224 F. Supp. at 107. The court started with the proposition that "it seems unfair and unjust for defendants to use the voice and the words of Dr. King without his consent and for their own financial profit." 224 F. Supp. at 105.
131. Robert R. Jones Assocs. v. Nino Homes, 858 F.2d 274, 280 (6th Cir. 1988).
132. 858 F.2d at 279.
133. Pub. L. No. 101-650, 104 Stat. 5133 (1990) (codified as amended at 17 U.S.C. §§ 101-02, 120 (1994)).
134. See 17 U.S.C. § 102(a)(8) (1994).
135. 17 U.S.C. § 101 (1994).
136. See H.R. REP. NO. 735, 101st Cong., 2d Sess. 18-20, 22 (1990).
137. See H.R. REP. NO. 735 at 11 & n.22 (referring to testimony by Paul Goldstein and Barbara Ringer).
138. H.R. REP. NO. 735 at 12.
139. H.R. REP. NO. 735 at 13.
140. See generally Raphael Winick, Copyright Protection for Architecture After the Architectural Works Copyright Protection Act of 1990, 41 DUKE L. J. 1598, 1606-08 (1992) (cataloging noncopyright incentives to architect creativity);
141. James Bingham Bucher, Comment, Reinforcing the Foundation: The Case Against Copyright Protection for Works of Architecture, 399 EMORY L.J. 1261, 1269 (1990) (same). Indeed, if copyright protection inhibits the copying of architecturally successful buildings, the principal result may be more employment for second-rate architects and more construction of second-rate buildings.
142. See Natalie Wargo, Copyright Protection for Architecture and the Berne Convention, 65 N.Y.U. L. REV. 403, 469-70 (1990).
143. See supra section II.B.2.b.
144. 495 U.S. 207 (1990). I do not propose to enter the debate about the Court's process of statutory interpretation in Stewart. To the extent that the statute mandated the conclusion the Court reached, the statutory provision is understandable primarily by reference to a "deserving-author" rationale.
145. See 495 U.S. at 220-21.
146. See Copyright Act of 1909, ch. 320, §§ 23-24, 35 Stat. 1075, 1080-81 (amended 1976), which gave renewal rights to the author's widow, widower, or children if the author was not living at the time for renewal. In Stewart v. Abend, the author died without a surviving wife or child, so the ultimate beneficiaries of the court's holding were a charitable trust and its assignee.
147. See Copyright Act of 1909, ch. 320, §§ 23-24, 35 Stat. 1075, 1080-81 (amended 1976).
148. See 17 U.S.C. § 203 (1994).
149. H.R. REP. NO. 1476, 94th Cong., 2d Sess. 124 (1976).
150. See supra text accompanying notes 86-88.
151. Cf. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 102-03 (3d ed. 1986) (discussing the effect of monopoly on contract terms and concluding that "there is no reason to expect the terms . . . to be different under monopoly from what they would be under competition; the only difference that is likely is that the monopolist's price will be higher").
152. Section 201(b) of the current statute provides: In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. 17 U.S.C. § 201(b) (1994).
153. See 17 U.S.C. § 203(a) (1994).
154. Current § 101 defines a work made for hire as a work "prepared by an employee within the scope of his or her employment" or "a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." 17 U.S.C. § 101 (1994). The statute then goes on to define supplementary work.
155. Of course, if Dickens entered into an employment relationship and had income and social-security taxes withheld, he could qualify for work-made-for-hire status. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-53 (1989).
156. The argument that work-made-for-hire limitations redress unequal bargaining power reduces to an argument that the market should be structured to permit authors to reap the compensation they deserve because of the value of their contributions. See Hamilton, supra note 90, at 1313-14, 1319 (arguing that further limitations on work made for hire, together with related reforms, are necessary to secure "fair remuneration" for authors).
157. See Wendy J. Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 VA. L. REV. 149 (1992) [hereinafter Gordon, Restitutionary Impulse];
158. see also Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343 (1989) [hereinafter Gordon, Merits of Copyright].
159. See, e.g., Edward J. Damich, The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights of Authors, 23 GA. L. REV. 1 (1988).
160. See Gordon, Restitutionary Impulse, supra note 148, at 181.
161. Id. at 171.
162. Id. (quoting Jules Coleman, Moral Theories of Torts: Their Scope and Limits, 1 J. L. & PHIL. 5, 6 (1983)).
163. See Gordon, Restitutionary Impulse, supra note 148, at 196-97.
164. Cf. Edwin C. Hettinger, Justifying Intellectual Property, 18 PHIL. & PUB. AFF. 31, 38 (1989) ("Markets work only after property rights have been established and enforced, and our question is what sorts of property rights an inventor, writer, or manager should have . . . .").
165. Gordon, Restitutionary Impulse, supra note 148, at 181-82.
166. Id.
167. See id.
168. See id. at 185-86. She writes: "There is no reason to give users a baseline entitlement to whatever they could have obtained in a world without legal protection for intellectual products." Id. at 186. Other versions of the same argument appear in her earlier work, Gordon, Merits of Copyright, supra note 148, at 1454-60, and her more recent work,
169. Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1549 (1993) [hereinafter Gordon, A Property Right in Self-Expression].
170. See Gordon, Restitutionary Impulse, supra note 148, at 167 ("A culture could not exist if all free riding were prohibited within it. Every person's education involves a form of free riding on his predecessors' efforts, as does every form of scholarship and scientific progress.").
171. See National Football League v. Governor of Del., 435 F. Supp. 1372 (D. Del. 1977) (holding that the lottery was entitled to make references to NFL games), quoted in Gordon, Restitutionary Impulse, supra note 148, at 168 n.68.
172. See Gordon, Restitutionary Impulse, supra note 148, at 188, 197.
173. Compare 2 GEORGE E. PALMER, THE LAW OF RESTITUTION §§ 10.2-10.3 (stating that restitution generally is not available for unsolicited payment of another's debts or for unsolicited expenditures to protect another's property) with § 10.4 (stating that restitution may be available for intervention to protect life and health). Palmer writes: "Courts have placed a higher value on protection of these interests [protection of life or health] than they have on protection of property, as a comparison with the preceding section will demonstrate." Id. § 10.4, at 376. Indeed, Professor Gordon herself speaks of the "rule that volunteers are not entitled to payment" and seeks to argue that copyright falls into one of the exceptions to that rule.
174. Gordon, Merits of Copyright, supra note 148, at 1456.
175. Gordon acknowledges these points explicitly. Thus, she notes that the creator of intellectual work could release his work to a user on the condition that any resale by the user would involve royalty payments to the creator, and she also acknowledges that "[i]n the real world, it may be impossible to know whether a given work . . . would have been sold with a royalty promise attached." Gordon, Restitutionary Impulse, supra note 148, at 184.
176. See Gordon, A Property Right in Self-Expression, supra note 158, at 1607 (indicating that her goal is "to help prune back the overweening growth in natural law rhetoric that has prompted many ill-conceived intellectual property decisions over the last two decades").
177. See, e.g., Hughes, supra note 54, at 296-329 (deriving Lockean justification for intellectual property rights); Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. 517, 546-47 (1990) (tracing the impact of Lockean philosophy on copyright law).
178. Professor Gordon also suggests that an author's labors give the author rights superior to consumers generally, see Gordon, Restitutionary Impulse, supra note 148, at 186, and that Locke's labor theory might be helpful in understanding intellectual property rights, see id. at 208-09, although she prefers not to cast her claim as one rooted in Locke, see id. at 167.
179. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT para. 27 (Peter Lasslet ed., 1963) (1698).
180. See para. 27; see also id. paras. 28, 33, 34.
181. Id. para. 34 (emphasis added).
182. Id. para. 27. Indeed, as often emphasized in judicial pronouncements, if a second author uses the same background material to create a work similar or identical to that created by a prior author, there is no infringement so long as there was no copying of the first author's work. See, e.g., Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936) (Hand, J.) (noting that "if by some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an 'author,' and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats's"). By contrast, once an inventor patents a work, a subsequent inventor is precluded from using or marketing an identical work even if the subsequent inventor was entirely unaware of the prior invention. Yet, given the opportunities for invention in the society and the pace of technological advance, it would be nearly impossible to argue that the grant of one patent reduced the opportunity for other inventors to invent.
183. Cf. Stewart E. Sterk, Restraints on Alienation of Human Capital, 79 VA. L. REV. 383, 425 (1993) (noting that giving creditors claims against earning capacity might cause the debtor to substitute leisure for work).
184. See Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).
185. LOCKE, supra note 166, para. 28. Richard Epstein makes a similar point in arguing that Lockean theory has a consequentialist cast: There will be bargaining breakdown if the consent of all individuals is necessary for the consumption of any portion of the whole. . . . Now the ultimate justification for Locke is no longer desert theory, but simple necessity. . . . Consent is not required to establish property rights because the number of parties is too great for it to work. When necessity, not consent, becomes the origin of property, then we have a utilitarian system, not a social contract theory. Richard Epstein, The Utilitarian Foundations of Natural Law, 12 HARV. J.L. & PUB. POLY. 713, 733-34 (1989).
186. See generally Epstein, supra note 172 (arguing that many natural-law theories are congruent with consequentialist arguments).
187. See supra text accompanying notes 71-133.
188. LOCKE, supra note 166, para. 33. Professor Gordon appears to endorse the same view. See Gordon, Merits of Copyright, supra note 148, at 1446 (quoting John Stuart Mill).
189. See JOHN RAWLS, A THEORY OF JUSTICE 102 (1971) ("No one deserves his greater natural capacity . . . .); id. at 311 ("[T]he initial endowment of natural assets and the contingencies of their growth and nurture in early life are arbitrary from a moral point of view.").
190. See id. at 311-12.
191. See id.
192. Rawls acknowledges the intuitive appeal of a distribution according to effort but rejects a moral claim based on effort, arguing that "[t]he better endowed are more likely, other things equal, to strive conscientiously, and there seems to be no way to discount from their greater good fortune." Id. at 312.
193. See id. at 78-79.
194. Rawls attacks this position by suggesting that the inclination to develop natural talents itself may be an inborn ability distributed among people in a morally arbitrary fashion. He notes that "[t]he better endowed are more likely, other things equal, to strive conscientiously," id. at 312, and that "[t]he extent to which natural capacities develop and reach fruition is affected by all kinds of social conditions and class attitudes," id. at 74. For a critique of Rawls's position and an argument that differences in ability to make efforts have little moral significance, see George Sher, Effort, Ability, and Personal Desert, 8 PHIL. & PUB. AFF. 361, 364-70 (1979).
195. 2 F.A. HAYEK, LEGISLATION AND LIBERTY 71-72 (1976). Moreover, one might argue that all intellectual products are inevitably the result of many people's talents, over a long period of time, and that no one author has a natural right to the market value of those products. See Hettinger, supra note 154, at 39.
196. See Russell Hardin, Valuing Intellectual Property, 68 CHI.-KENT L. REV. 659, 667-69 (1993) (noting that IBM's decision to use Bill Gates's operating system made Gates a multibillionaire and noting that Gates's wealth rested as much on IBM's need to have a single operating system as on the particular merits of Gates's system);
197. Jeremy Waldron, From Authors to Copiers: Individual Rights and Social Values in Intellectual Property, 68 CHI.-KENT L. REV. 841, 856 (1993) (noting that readiness to pay for a new song may have little to do with the merits of the songwriter but with factors such as "how many other catchy tunes there are on the market this week, whether the state of the world fosters a general desire to be cheered up, and so on").
198. See Lawrence C. Becker, Deserving to Own Intellectual Property, 68 CHI.-KENT L. REV. 609, 622 (1993); Breyer, supra note 42, at 287; Hettinger, supra note 154, at 41. But cf. Hamilton, Art Speech, supra note 98 (emphasizing the failures of government funding for the arts).
199. Wendy Gordon, for instance, argues that her restitutionary principles lead not to property rights but to claims for compensation by authors. Gordon, Restitutionary Impulse, supra note 148, at 192-93.
200. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 183-228 (1974).
201. Id. at 226.
202. See id. at 230 ("If the set of holdings is properly generated, there is no argument for a more extensive state based upon distributive justice.") Nozick rejects all "patterned" principles of justice, by which he means principles such as "to each according to his _." Id. at 159-60.
203. See id. at 158-60.
204. See id. at 141.
205. See Becker, supra note 184, at 610; Damich, supra note 149, at 25-40; Hughes, supra note 54, at 331-50; Roberta Rosenthal Kwall, The Right of Publicity vs. the First Amendment: A Property and Liability Rule Analysis, 70 IND. L.J. 47, 60 (1994);
206. Neil Netanel, Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law, 12 CARDOZO ARTS & ENT. L.J. 1, 13-23 (1994);
207. Linda J. Lacey, Of Bread and Roses and Copyrights, 1989 DUKE L.J. 1532, 1541-42.
208. Less often, a similar justification is attributed to Kant. See Netanel, supra note 191, at 17-23.
209. HEGEL, PHILOSOPHY OF RIGHT para. 51 (T.M. Knox trans. Oxford University Press 1967) (1952).
210. Hence, Hegel insists that to obtain a property right, a person must take "occupancy" so that "[t]he embodiment which my willing thereby attains involves its recognizability by others." Id.
211. See Jeanne L. Schroeder, Virgin Territory: Margaret Radin's Imagery of Personal Property as the Inviolate Feminine Body, 79 MINN. L. REV. 55, 133-34 (1994); see also Hughes, supra note 54, at 343 ("Hegel argues that recognizing an individual's property rights is an act of recognizing the individual as a person.").
212. Thus, Hegel notes that [a] person by distinguishing himself from himself relates himself to another person, and it is only as owners that these two persons really exist for each other. Their implicit identity is realized through the transference of property from one to the other in conformity with a common will and without detriment to the rights of either. HEGEL, supra note 193, para. 40. Jeanne Schroeder notes that "the Hegelian concept of the person is always already implicitly driven by the erotic desire to be desired" and that "[t]he individual cannot exist except through concrete relationships with other individuals." Schroeder, supra note 195, at 136. Property fosters those concrete relationships. See id. at 110-12 (showing how a market community fosters personal interrelationships between individuals who may appear to have little in common).
213. Hegel recognized that some might be uncomfortable treating the talents and skills as property because they appeared to be an essential part of the individual rather than an object acquired through mediation of the will. He explained: We may hesitate to call . . . abilities, attainments, aptitudes &c., "things," for while possession of these may be the subject of business dealings and contracts, as if they were things, there is also something inward and mental about it, and for this reason the Understanding may be in perplexity about how to describe such possession in legal terms . . . . Attainments, erudition, talents, and so forth, are, of course, owned by free mind and are something internal and not external to it, but even so, by expressing them it may embody them in something external and alienate them . . . and in this way they are put into the category of "things." Therefore they are not immediate at the start but only acquire this character through the mediation of mind which reduces its inner possessions to immediacy and externality. HEGEL, supra note 193, para. 43. Hegel concluded that only a small class of objects that, once appropriated, become an inherent part of the individual personality, are, unlike ordinary property rights, inalienable. See id. para. 66 ("Substantive characteristics which constitute my own private personality and the universal essence of my self-consciousness are inalienable and my right to them is imprescriptible.")
214. See Schroeder, supra note 195, at 139 (discussing the superiority of exchange over gift as a means of alienation) ("In exchange . . . I am not only a giver but also a recipient who simultaneously recognizes the other's objectification in and indifference to the object I receive. In other words, I see her as someone who has her own ends rather than merely as a means to my ends.").
215. Contract recognizes a moment in which two persons are united in that they are bound together in a common will at the same time that they recognize each other as separate individuals having specific rights and duties. Because we share a common will (i.e., the intent to exchange objects), we can simultaneously serve each others' ends without being reduced to the mere means to each others' ends. Id.
216. HEGEL, supra note 193, para. 69. Hegel went on to conclude that "plagiarism would have to be a matter of honour and be held in check by honour." Id. para. 69, at 56.
217. Schroeder, supra note 195, at 131 n.287.
218. [T]he purpose of a product of mind is that people other than its author should understand it and make it the possession of their ideas, memory, thinking, &c. . . . The result is that they may regard as their own property the capital asset accruing from their learning and may claim for themselves the right to reproduce their learning in books of their own. HEGEL, supra note 193, para. 69; see also id. para. 68: In the case of works of art, the form - the portrayal of thought in an external medium - is, regarded as a thing, so peculiarly the property of the individual artist that a copy of a work of art is essentially a product of the copyist's own mental and technical ability.
219. Except, of course, that Hegel, too, recognized an instrumental justification for intellectual property rights: The purely negative, though the primary, means of advancing the sciences and arts is to guarantee scientists and artists against theft and to enable them to benefit from the protection of their property, just as it was the primary and most important means of advancing trade and industry to guarantee it against highway robbery. Id. para. 69.
220. See, e.g., Damich, supra note 149, at 28 n.135; Hughes, supra note 54, at 350; Netanel, supra note 191, at 21-23.
221. See HEGEL, supra note 193, para. 66 ("[T]hose goods, or rather substantive characteristics, which constitute my own private personality, and the universal essence of my self-consciousness are inalienable. . . . Such characteristics are my personality as such, my universal freedom of will, my ethical life, my religion.").
222. Arthur S. Katz, The Doctrine of Moral Right and American Copyright Law - A Proposal, 24 S. CAL. L. REV. 375, 402 (1951) (emphasis in original)
223. (quoting JOSEPH KOHLER, URHEBERRECHT AN SCHRIFTWERKEN UND VERLAGSRECHT 15 (1907)); see also Damich, supra note 149, at 29; Netanel, supra note 191, at 21-23.
224. See generally W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 790-91 (5th ed. 1984).
225. HEGEL, supra note 193, para. 66, at 52-53.
226. Schroeder, supra note 195, at 144.
227. See id. at 143 (noting that Hegel's inalienability of personality is merely a definitional matter) ("If the minimum definition of the person is the free will, one must not alienate one's capacity for freedom.").
228. See HEGEL, supra note 193, para. 67.
229. Id.
230. James Boyle, The Search for an Author: Shakespeare and the Framers, 37 AM. U. L. REV. 625, 629 (1988).
231. See supra section II.A.
232. The problem identified by public choice theorists is that creation of an effective lobbying force requires collective action, and individuals who contribute to the collective enterprise confer external benefits on beneficiaries who do not contribute. Thus, in responding to pluralists who argued that appeasement of a variety of small groups achieved the ends of democracy, Mancur Olson noted that members of large groups have little incentive to organize effectively so long as the benefits to be secured by group action would be collective benefits. MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION 125-28 (1971). In Olson's words: It follows that the analytical pluralists, the "group theorists," have built their theory around an inconsistency. They have assumed that, if a group had some reason or incentive to organize to further its interest, the rational individuals in that group would also have a reason or an incentive to support an organization working in their mutual interest. But this is logically fallacious, at least for large, latent groups with economic interests. Id. at 127;
233. see also JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL D EMOCRACY 283-95 (1962).
234. For a more detailed history of the 1909 legislation, see Jessica D. Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 275, 283-88 (1989).
235. For extensive discussion of the process, see Jessica D. Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857, 870-79 (1987) [hereinafter Litman, Copyright, Compromise]; and Litman, supra note 216, at 306-42.
236. Litman, supra note 216, at 317.
237. See Litman, Copyright, Compromise, supra note 217, at 903.
238. See id. at 890-93.
239. See 17 U.S.C. § 101 (1994); Litman, Copyright, Compromise, supra note 217, at 890-91.
240. See Litman, Copyright, Compromise, supra note 217, at 892-93.
241. See id. at 893; compare Stewart v. Abend, 495 U.S. 207 (1990) (applying old law and holding that the right to use derivative work expired with the initial term of the copyright on the original work).
242. See Litman, Copyright, Compromise, supra note 217, at 893-94.
243. See id. at 884.
244. See id. at 885.
245. In recent years, of course, a number of distinguished commentators have recognized the need to limit copyright protection and have sought to show how their own theories of copyright are consistent with doctrinal limitations. See e.g., Gordon, Merits of Copyright, supra note 148;
246. Gordon, Restitutionary Impulse, supra note 148; Yen, supra note 165.
247. See HAYEK, supra note 182, at 74.
248. Within Protestantism, this attitude has religious origins, as individuals seek professional success for reassurance that they are among the chosen rather than the damned. See generally MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM 109-13 (Talcott Parsons trans., 1958).
249. Indeed, some of the public grumbling about the salaries awarded to professional athletes appears to reflect the view that athletes do not deserve high salaries because, as a group, they do not have the education or intellectual abilities generally associated with high compensation occupations. But see HAYEK, supra note 182. I have never known ordinary people grudge the very high earnings of the boxer or torero, the football idol or the cinema star or the jazz king - they seem often even to revel vicariously in the display of extreme luxury and waste of such figures compared with which those of industrial magnates or financial tycoons pale. Id. at 77.
250. See supra text accompanying notes 176-90.
251. See HAYEK, supra note 182, at 74.
252. In Hayek's words, the importance for the functioning of the market order of particular prices or wages, and therefore of the incomes of the different groups and individuals, is not due chiefly to the effects of the prices on all of those who receive them, but to the effects of the prices on those for whom they act as signals to change the direction of their efforts. Id. at 71.
253. Id. at 116-17.
254. See id. at 74.