Patent Pending

ED: This is Back Story. I’m Ed Ayers.

In the early 19th century, a businessman named Frances Lowell wanted to help jumpstart the American economy to help it compete with England. Problem was, nobody in America knew how to build or operate industrial machinery. So Lowell took a trip behind enemy lines.

DORON BEN-ATAR: He looked so frail. And nobody thought he was a threat. So the English actually gave him tours of factories in Scotland and Manchester. And it turns out that Lowell may have been frail, but he wrote notes.

ED: Today on BackStory, intellectual property. For centuries, Americans have debated the difference between sharing and stealing. We’ll talk about efforts to patent life, a rogue translation of Uncle Tom’s Cabin, and we’ll look at one of America’s most beloved pirates.

PHYLLIS DILLER: My husband is usually absolutely no help. Because, you know, he boozes. He gets so high he won’t drink without a net under him.

[LAUGHTER]

ED: Phyllis Diller. That’s all coming up on BackStory.

BRIAN: Major funding for BackStory is provided by the National Endowment for the Humanities, the University of Virginia, the Joseph and Robert Cornell Memorial Foundation, and an anonymous donor.

ED: From the Virginia Foundation for the Humanities, this is BackStory with the American Backstory hosts

BRIAN: Welcome to the show. I’m Brian Balogh, 20th century guy, and I’m here Ed Ayers.

ED: The 19th century guy.

BRIAN: And Peter Onuf’s with us.

PETER: The 18th century guy.

BRIAN: How would you like me to address you? As Professor Chakrabarty? Or Dr. Chakrabarty.

ANANDA CHAKRABARTY: Either that or you can call Ananda. Ananda is my first name. It’s up to you.

BRIAN: No. I’m going with Dr. Chakrabarty.

[LAUGHTER]

PETER: I think anybody who invents life is entitled to it doctor.

[LAUGHTER]

ANANDA CHAKRABARTY: Well, if you can’t pronounce it, I have no problem.

ED: Back in the 1970s, Dr. Chakrabarty wound up at the center of an important question about what can and cannot be patented. He was working for General Electric at the time. And in his laboratory there, he had developed a bacterium that could help clean up oil spills.

ANANDA CHAKRABARTY: Normally there is an oil spill, on the ocean a lake, or even a waterway. What happens is that there are various kinds of microorganisms that eat up only certain components of the oil. For a significant reduction in the various complements of the oil, you need a mixture of different types of bacteria.

So I said, why do I need all these bacteria?

ED: Why not just create one bacterium that can do all the work by itself?

BRIAN: So this is kind of like a bacteria on steroids that you created.

[LAUGHTER]

ANANDA CHAKRABARTY: Seems there is a negative connotation on bacteria on steroids.

[LAUGHTER]

BRIAN: All right. I retract that statement.

ANANDA CHAKRABARTY: I would defend my property and not really. It’s what you call a bacterium with a lot of wisdom.

[LAUGHTER]

[MUSIC]

BRIAN: I want to hone in on the word you used– property. You would defend your property.

PETER: Yeah.

BRIAN: As having a lot of wisdom. So my next question is, why did you patent this property?

ANANDA CHAKRABARTY: So the normal procedure would be to patent the process of constructing such a microorganism. The only problem is this is a bacterium that you will release in an open environment where there is an oil spill.

BRIAN: Yes.

ANANDA CHAKRABARTY: So GE went there. They used a crop duster plane to throw in the bacteria over large areas of oil-contaminated lake or waterway.

Somebody like myself, who doesn’t work for GE any longer, would simply come and take a spoonful of those bacteria and grow them. And if the bacteria are not covered, you lose them just after one application.

PETER: Uh huh.

ANANDA CHAKRABARTY: So now you are beginning to see why we [? pick ?] that we should really ask for the bacterium to be patented.

BRIAN: Unfortunately for Dr. Chakrabarty, the patent office denied his application.

ANANDA CHAKRABARTY: They said bacteria are natural forms. You cannot patent a product of nature. So the argument was is something that’s living patentable?

ED: Chakrabarty wound up taking that question all the way to the Supreme Court. In 1980, the Court ruled in his favor. Even though the bacterium was a living thing, the Court said, it was not a product of nature. Chakrabarty had created it in his lab.

BRIAN: 33 years later, that decision is once again in the news. And that’s because the Supreme Court is once again considering thorny issues related to the patenting of life.

PETER: This time, the case concerns a company called Myriad Genetics and whether it should be able to patent a specific set of mutated human genes. Women who have these genes are extremely likely to develop breast and ovarian cancers.

Recently, actress Angelina Jolie made headlines when she announced that she had tested positive for one of the genes, leading her to undergo a preventive mastectomy.

BRIAN: That test, which we should point out is not cheap, can only be administered with the permission of Myriad. And that’s because of the patents it currently has. And so the question before the Court is, can living things that were isolated in lab– but not necessarily invented in that lab– can they be patented too?

ED: What can and cannot be considered intellectual property is a question with deep roots in America. And so today on the show, we’re going to trace those roots back through time. We’ve got stories about intellectual piracy in the era of pirate ships, about how confusing copyright became when movies came on the scene, and about the stand up routine of Phyllis Diller. That’s right. Phyllis Diller, here on BackStory.

[MUSIC]

PETER: Let’s return now to our conversation with Dr. Chakrabarty, the former GE scientist who patented a new type of bacterium back in the 1970s.

BRIAN: So Dr. Chakrabarty, it sounds like you’ve been on both sides of this story. You’ve worked for GE. And you’ve worked as a little professor, as you put it, at the University of Illinois.

[LAUGHTER]

ANANDA CHAKRABARTY: Right.

BRIAN: What wisdom can you share with us about the current patent system? Does it give too many advantages to the big guys now that you’re a little guy?

ANANDA CHAKRABARTY: Remember, simply because I’m a little guy doesn’t mean that I will remain little forever.

[LAUGHTER]

ANANDA CHAKRABARTY: If I can use the wisdom of the forefathers of the US Constitution. They said these country is going to be a great country if this country can encourage innovation and help the innovators bring the products of their innovation to the marketplace.

I never forget that. I’m ever grateful to the framers of the US Constitution.

BRIAN: Well, we’re forever grateful to you for sharing this time with us.

PETER: Yeah. Thank you so much.

ANANDA CHAKRABARTY: Sure. It was really nice talking with you.

BRIAN: Bye bye.

ANANDA CHAKRABARTY: OK. Bye bye.

BRIAN: Ananda Chakrabarty mentioned the founding fathers. Which to me, guys, sounds like he’s dangerously close to ripping off our trademark history.

[LAUGHTER]

BRIAN: So let’s take a few minutes here and really spell out what those founders intended with this whole patent thing.

PETER: Well, it all starts with the Constitution, Brian. It’s Article I, section VIII. And the guiding genius here is, of course, the Father of the Constitution. That would be James Madison, Thomas Jefferson’s sidekick.

And Madison thinks it’s important to give Congress the power to establish the patent regime in order to encourage innovation, to give inventors some exclusivity over their invention. And the first Congress rises to the occasion and passes an act, which is ripped off from the British–

[LAUGHTER]

PETER: –1623 act setting up a protection for 14 years. And that’s the beginning of patent law in America.

ED: But not everybody was on board with this idea, Peter. I know that your man Thomas Jefferson basically saw copyrights and patents as a kind of monopoly. And if there’s one thing the founding fathers were not fond of, it was monopolies.

So Peter, help me understand this. Would Jefferson object to the idea the Dr. Chakrabarty has an inherent property right in the thing that he created in a lab?

PETER: Well, yeah, Ed. I think Jefferson would object to this idea. You have to understand that there were two different conceptions of innovation and progress. One familiar to us, the genius comes up with something in the lab and somebody’s made a big investment in making that invention possible and a lot of property interests are entangled with the innovation. And we think that there has to be some property right at the core of that.

But in the Enlightenment, you have a different idea. Think of the world as being a laboratory. And that the best way to discover how the laws of nature work and how they can be improved upon to benefit mankind generally, then the more freedom there is in the exchange of ideas, the circulation of ideas. This is something like the spirit the Creative Commons today or Wikipedia.

BRIAN: Yeah. It’s social production, is what we call it.

PETER: We give it to each other because it benefits everybody. And nobody should have a property interest in this collective product that benefits all of us.

In fact, for us, as for Thomas Jefferson and his concerns about monopoly power, the idea that somebody or some group of people will have rights against the rest of us is very much like the spirit of aristocracy and exclusivity.

ED: So the compromise is it that a person gets to be an aristocrat for 14 years.

PETER: That’s exactly right.

BRIAN: It’s like king for a day, Ed.

[LAUGHTER]

PETER: No. But you could say that any property claim, of course, sets me against you and me against the world. And that is, of course, the other side of democracy. And that is the survival of the notion of individual rights against those of the majority.

BRIAN: It’s a necessary evil.

PETER: That’s right. And that’s what Madison responds to Jefferson. Jefferson says, down with monopoly. The whole spirit of what we call democracy is that the earth belongs to the living. We can’t have these exclusive rights because the whole mankind of mankind has a claim on the inventions, the innovations that make life better for all of us. That’s the public good that’s being served.

Whereas Madison says, slow down.

BRIAN: Right.

PETER: Because individuals who are going to make the key innovations and inventions that make life better need to have protections and incentives or they won’t do it at all.

[MUSIC]

BRIAN: One of the chief concerns with the current intellectual property system is it actually stifles innovation, that it keeps protected material out of the hands of innovators. Kembrew McLeod teaches courses on copyright law at the University of Iowa. And to be fair, he’s got an agenda.

So let’s just get right into it. Are you a Madisonian or a Jeffersonian when it comes to attitudes about copyright?

KEMBREW MCLEOD: Well, I’m down with Jefferson.

[LAUGHTER]

KEMBREW MCLEOD: I think he had it right from the beginning.

BRIAN: Kembrew offered one example of how material from the public domain resulted in innovation. An innovation, which was then put under lock and key.

KEMBREW MCLEOD: Let me give you the example of Woody Guthrie. He wrote what’s considered our unofficial national anthem, “This Land is Your Land.” And while he wrote the lyrics, he didn’t write the melody. He based it on a Carter family song. And that melody actually went back to the 19th century.

And he was free to do so because he lived during a time in which the terms of copyright didn’t last what seems like forever nowadays. So he was able to create this beautiful song by appropriating an earlier song. And the sad irony is that Woody Guthrie’s song publisher, the company that controls “This Land is Your Land,” heavily polices any alterations that contemporary musicians might make to the song.

BRIAN: Under the existing copyright law.

KEMBREW MCLEOD: Exactly.

BRIAN: So is there a CNN “This Land is Your Land” countdown clock? How many years do we have to go on this one?

KEMBREW MCLEOD: It depends on the version. Because there actually is a version of the lyrics that are in the public domain. But the huge irony is one of the classic versions of the song, in which Woody Guthrie sings “I came upon a sign that said private property, on the backside it didn’t say nothing. That side was made for you and me.”

[LAUGHTER]

KEMBREW MCLEOD: Well, that’s still under copyright. That version is still private property.

BRIAN: Touche.

[MUSIC – “THIS LAND IS YOUR LAND”]

BRIAN: It’s time for a short break. When we come back, a great opponent of copyright, Mark Twain, takes on a great supporter of copyright, Mark Twain. We’ll be back in a minute.

[MUSIC – “THIS LAND IS YOUR LAND”]

PETER: This is BackStory. I’m Peter Onuf.

BRIAN: I’m Brian Balogh.

ED: And I’m Ed Ayers. This week we’re looking at the American history of intellectual property, what’s being considered legally protected and what that protection has meant for creators and for consumers.

PETER: In the years just after American independence, intellectual property rights stood to make or break the American economy. On one side of the equation, protected British technology. On the other, Americans itching to get their hands on those inventions.

ED: Here’s the situation. It’s the 1780s and the new American economy is a mess. Britain, on the other hand, is an economic powerhouse. It’s manufacturing technology, especially for textile production, is fueling an industrial boom.

And Britain, understandably, does not want this boom to extend to its former colonies. So it tightens restrictions on the export of machinery. You literally cannot take most British inventions outside of the country.

PETER: Americans have to find ways to beat this system. They come up with three main tactics. Tactic number one, team up with British smugglers.

DORON BEN-ATAR: Let me tell you a story that I particularly like.

BRIAN: This is Doron Ben-Atar, a historian at Fordham University. His story is about a merchant named Benjamin Phillips.

DORON BEN-ATAR: So Phillips is an Englishman who wants to make a killing. He looks at Americans. He says, oh, well, I have a way to start a cotton factory in the United States.

PETER: Mmhmm.

DORON BEN-ATAR: And so he gets a machine, a cotton machine. And three spinning machines. He puts them in carts. It’s marked as Wedgewood China. Because there are restrictions. You’re not allowed to do that. And he sends them to Philadelphia.

PETER: Seems like a great plan. But there’s a hitch.

DORON BEN-ATAR: The problem was that Phillips dies. And the machines arrive in Philadelphia. And nobody knows how to put them together.

PETER: There aren’t specifications written in some East Asian country in several languages?

[LAUGHTER]

DORON BEN-ATAR: Nothing. Nothing. It’s like me and Ikea. Even with specifications– I can get specifications at Ikea. I still cannot make the stupid bookshelf.

ED: Not being able to make the stupid bookshelf was exactly the problem for would-be American manufacturers. Even when they could get their hands on the actual technology, they still needed people who knew how to work it.

PETER: So Americans tried tactic number two. Get British know-how to their shores, convince skilled workers to emigrate. American businesses offered cushy deals to British workers like cash awards for migrating and financial support for their family members who stayed behind in England. Plenty of English artisans wanted to make the trip.

ED: But here, too, there was a hurdle. The crown wanted those workers to stay in Britain, where their skills could fuel the British economy. So Britain simply forbade many of them from leaving.

DORON BEN-ATAR: There was a 200-pound fine and forfeiture of equipment and a 12-month imprisonment punishment for artisans leaving. And for people in the textile industry it was worse. It was 500-pound fine and forfeiture of equipment.

PETER: But these laws didn’t work quite as well as the British. People slipped through the cracks. Remember, this was the 1780s and border control wasn’t quite what it is today.

ED: At the same time, Americans were making the reverse trip. This was tactic number three– visit Britain and personally track down the technology you need. This could mean sneaking a small machine home in your luggage, or it could mean going straight to the source– getting inside British factories, taking notes on the processes, and smuggling that information home.

PETER: Britain, of course, generally didn’t let foreigners take field trips through its factories.

[LAUGHTER]

PETER: But in the early 19th century, an America named Frances Lowell managed to sweet talk his way through a handful of industrial towns.

DORON BEN-ATAR: He was this kind of sickly rich guy. A young rich guy from Boston. And he was sent to England for health reasons. Which is, I still today have no idea. Why would anybody go to England for health? The weather in that country is– it’s Seattle all year round.

PETER: You’re from the Mediterranean. You don’t appreciate this–

DORON BEN-ATAR: You’re correct. So anyway, he sent there. And he looked so frail. And nobody cared. Nobody thought he was a threat.

He was also rich and connected. That helps. So they gave him tour of factories in Scotland and Manchester. And it turns out that Lowell may have been frail and rich, but he turned out to have been very smart and actually with a head– with mathematical inclination.

So at night he– at least the lore is. I have no idea if he did it or not. He wrote notes.

ED: When he came back to the US, Lowell shared those notes with a group of investors. They pooled their money and committed to building an American industrial Mecca that would rival the smokiest cities of England.

He died before the plan was complete. But 1823, his partners incorporated Lowell, Massachusetts. The new town ran on the very technology that Lowell had pirated from England. And over the next few decades, it turned out cheap textiles as fast as its British counterparts.

PETER: Over the next 200 years, the Industrial Revolution born in places like Lowell transformed the United States into an economic powerhouse. Ironically, America is now in the position that Britain used to occupy– the developed country that wants to protect its own intellectual property.

DORON BEN-ATAR: It’s not very different than today. You look at the post-industrial world today. What we have over the developing world is knowledge. All of our wealth is embodied in knowledge. We can’t manufacture anything cheaper than they do.

The only thing we can do is have knowledge. And that’s why the intellectual property regime is such an important element to the sort of well being of the West. And that’s why it’s viewed as such an imperialist, oppressive thing by the developing world.

Because they look at our intellectual property regime and see that we are using these legalistic formalities, these technicalities, to block them from manufacturing the most advanced things. From getting the medicine that they need. From– all of those things are very central to them.

And, of course, they say, well, look. You did the same thing.

[MUSIC]

ED: Doron Ben-Atar is a historian at Fordham University. His book is Trade Secrets: Intellectual Piracy and the Origins of American Industrial Power.

[MUSIC]

BRIAN: Ed, Peter. I’ve heard a lot of discussion about things. Stuff.

PETER: Mmhmm.

BRIAN: Inventions. But what about books? What about American authors? And we’ve talked about the economy and the free flow of ideas and how it helps the economy. What about all of those American– that literate society? All those readers?

PETER: Yeah. Well, copyright law and even the patent provision in the Constitution has got a history going back before the Constitution. And it’s– in America it’s Noah Webster, the great dictionary writer who, in 1783, gets Connecticut to pass an act on behalf of the encouragement of literature and genius.

And that’s copied by other states. And eventually that becomes, you might say, the [? er ?] source for the federal constitutional provision. So literature’s right there.

But where are American authors? And the problem is, how can American authors find their voice and find their audience? And it has to do with the price of books, because British authors are underselling them.

ED: Yeah, you might think that the most popular authors in the world, Peter, would actually command a premium.

PETER: Yes.

ED: But as it turns out, their books are dirt cheap in the United States because they’re basically stolen. A printer will buy the latest novel from Dickens or Scott, reprint the sucker, sell it, and keep all the money for himself.

BRIAN: So literally just the printing cost. Nothing goes to the author. No cost of intellectual property.

PETER: It’s as of those books grow on trees. Right?

BRIAN: Yeah. Exactly. In more ways than one.

[LAUGHTER]

ED: So a lot of Americans have an interest in this system. Not only do the publishers have an interest in it, but so do the printers, the working men, the unions who produce all this, as well as the book-buying public. There’s really no incentive for Americans to pay the English these royalties except that it’s the right thing to do.

But you keep getting the books anyway. So what’s the problem?

BRIAN: It’s got be good for society to have all these people reading. It helps our literacy rate.

PETER: Think of the word royalty?

BRIAN: Yeah, exactly.

[LAUGHTER]

PETER: I thought we overthrew that nonsense.

ED: But that’s fine, as long as you think of books being written by that royalty back there in England. But some Americans insist on being geniuses. They insist on writing their own literature. So if you’re an American author, you find yourself in the strange situation of competing with much more popular, and yet underpriced, English authors at the same time that your own books are expensive, even though you’re not making much money from them.

PETER: Right.

BRIAN: But they have copyright protection here, right?

ED: Yeah.

BRIAN: It’s just not doing them any good.

ED: That’s right. You’ll have somebody very popular like Harriet Beecher Stowe come along who can make a living. But most American writers, say, Herman Melville, cannot. And so you find that the United States at the time of the Civil War really hasn’t figured this out.

After the Civil War, we finally have somebody who strides right into the fray and speaks out of both sides of his mouth.

[LAUGHTER]

BRIAN: How American.

ED: It is. And it’s Mark Twain.

BRIAN: Right.

ED: And early on, he is, of course, the great voice of the American vernacular. He speaks in the accents of the enslaved, of the frontier, of the white South.

PETER: Meaning he ripped that stuff off from them.

ED: Yes, if you prefer to think of it that way.

[LAUGHTER]

ED: And as a result, Americans go, now here’s a literature that we can really see as our own. And we really do want to foster that.

And because cost Twain is confident that Americans are going to be able to find their own voice, he’s actually against a copyright treaty with England which would make us complicit in protecting English authors and driving up the price of English literature.

BRIAN: He’s standing up for the little guy, Ed.

ED: Exactly. He says, it’s great that these novels can be found in every shack across America because it’s really making America one of the most intelligent countries in the world.

And then Twain, you gotta love him, completely changes hist mind in the next six years.

[LAUGHTER]

ED: About 1886. And in between, all that’s happened is he’s written the remarkably popular Huckleberry Finn. He says–

BRIAN: Ah. The blockbuster, right?

ED: Yeah. Exactly. And, of course, there’s no more American novel than Huckleberry Finn. But now he says, you know what we need to do? Is we need to have international copyright. Because he says, look. If you go– this is a direct quote.

You go into any public library you’ll see that of every 100 books read by people about 70 are novels and 9/10 are foreign ones. They fill the imagination with an unhealthy fascination with foreign live, with the dukes and earls and kings and the fuss and feathers. It’s graceful immoralities. It’s sugar-coated injustices and oppressions.

And he says, this is not good for America.

BRIAN: Ah, so no discussion of price or competition. It’s all about what’s good for America.

ED: The moral fiber of the nation, Brian.

PETER: Yeah. And that’s, Ed, why we need to protect British authors so they get the royalties from sales of their books. All of a sudden, we protect foreign authors under the idea that we’re serving American interests because we’re going to have fewer of those books circulating.

BRIAN: Yeah.

ED: It’s a win-win-win.

BRIAN: For Mark Twain.

[MUSIC]

ED: If you’re just joining us, this is BackStory. And we’re talking about the history of intellectual property in America. And we’ve arrived at that point in our show when we reach out to some of the folks who have left comments on the topic on our website.

PETER: Hey, guys. Gather round. We have a call from Annapolis, the capital of the great state of Maryland. And it’s Lisa. Lisa, welcome to BackStory.

LISA: Hi.

BRIAN: Hey. Great to have you. So intellectual property. What do you got?

LISA: OK. Well, I’m a freelance artist. And one of the things that I’ve really noticed as far as copyright law, that it’s become almost a weekly affair that you see some artist online discovering that their work has been stolen by a large corporate entity, say Urban Outfitters or Hot Topic.

And, really, your only recourse to that point– because most of these people who are being victimized this way are maybe 25 and living in an apartment in Brooklyn with four other people– is to bring it up on Twitter and have boycott threatened.

PETER: Wow.

LISA: Because taking it to court against a large corporation, it’s entirely out of the question for an individual.

BRIAN: Mmhmm.

LISA: So I guess I’d like to talk about how it went from being something that was supposed to protect innovation to something that was a weapon for corporations.

PETER: We have some thoughts on that, Lisa. But has this happened to you?

LISA: Not me personally. It’s friends of mine. Often what will have happened is the company had hired a designer. And the designer went ahead and submitted this to the company. And then the company will claim that the design belongs to them.

[INAUDIBLE]. You’ll see some things that are just very clearly inspired or traced over. And ones that are– like literally the original illustration has been taken into Photoshop and maybe the colors have been changed a little bit.

BRIAN: Yeah. Right.

ED: It seems to me it’s kind of a byproduct of the new era, Lisa, where you have– suddenly you can be an artist and be seen all over the world pretty quickly.

LISA: Mmhmm.

ED: It’s just that your ideas can be taken pretty quickly as well. So it’s kind of a devil’s bargain. Does it seem?

BRIAN: Mmhmm.

LISA: Yeah. Certainly.

BRIAN: Well, Ed, didn’t you have this problem all the way back in the 19th century when people would come up with a nifty idea for a farm implement and, before they knew it, someone would make like a little change or whatever?

ED: Yeah. But ironically, the thing that we think of as the great patentable invention of the cotton gin was immediately overtaken by all kinds of people who would take the idea of a rotating device that would pull cotton from the seeds and replace it with, say, something that looks like a saw blade. And then they would change the shape of that. Then they would add another handle.

And the courts were just completely swamped, even in the rural slave South, out of all places, with just too much innovation going on.

PETER: Well, we think that Eli Whitney invented the cotton gin, right? But he never made any money off it.

ED: Right.

LISA: Mmhmm.

ED: So I guess what I’m saying is is that it may be in times a special intellectual flux that this stuff– it’s really hard to control.

PETER: Yeah.

BRIAN: Yeah.

LISA: Yeah.

BRIAN: Yeah. The history of this is even worse than that. Because a lot of corporations, particularly the huge ones that could afford research labs– this is a great thing, inventing ways to live for tomorrow. You know what most of the work went into in many of these great labs was inventing things that could be patented so that they couldn’t be used by other corporations.

PETER: Mmhmm. Yeah.

BRIAN: So some of today’s household names, which I will not mention in corporations, they had whole operations that were negative patenting. And so they were pouring money into invention and tapping the genius of these scientists and engineers all so that they could continue to keep using the same outmoded– I won’t mention the item– that they had been using. And so that some other company wouldn’t get an edge by making that item a little bit better.

ED: I think what’s interesting and kind of heartbreaking about the story Lisa is telling is the disparity between major corporation with all this marketing clout and somebody who’s out on her or his own, creating designs.

LISA: Yeah.

PETER: I think in courts, plagiarism is getting pretty specific about exactly what would constitute a violation.

LISA: Mmhmm.

PETER: People know it so well that they stay just inside the line of acceptability. But I’m wondering in design, how would you go about proving that something is too close to something else to be an independent standalone? Are there criteria that artists and designers agree on?

LISA: Usually I think the specific is that it has to be altered at least 30% to be considered an original work.

PETER: Uh huh.

BRIAN: Wow. 30%?

LISA: So just changing the color of something– yeah. Taking an original illustration and changing the color doesn’t constitute redrawing something that’s similar but different enough.

PETER: But actually about 70% could be pretty much a rip off.

BRIAN: Yeah, and, Lisa, I’ve got to tell you. I alter shirts 30% as soon as I put them on.

[LAUGHTER]

PETER: That’s not that much.

[LAUGHTER]

ED: You’re so creative. So what’s the name of the guy who did the Obama hope illustration that was basically a photograph then that he colored and stuff? Shepard Fairey.

LISA: Shepard Fairey. Yeah, that was it.

ED: What would you think of something about that, Lisa? What percentage change is that?

LISA: Well, that’s a little bit difficult. It looks like it’s been altered more than 30%, obviously. It’s an illustration rather than a photograph. But it did use somebody else’s intellectual property as a basis. And they decide in favor of the original intellectual property holder.

ED: Yeah. And it’s not– and the reason I ask it is kind of rhetorical. Because it’s not clear where creativity lies in all that.

PETER: And you know, Ed, the interesting thing is we’re talking about corporations versus individuals, designers, artists. But there’s a third party, of course. And all the ambiguity we’re talking about makes these things end up in court.

So the third party, of course, is the legal system. Who’s making out like bandits, so to speak, when it comes to these intellectual property things? It’s, of course, the lawyers.

LISA: Oh.

PETER: And I hope there’s going to be no legal action as a result of this slur against a great profession, but on that note our producers have said the show will be shut down now. So, Lisa, we got to so good bye.

LISA: Oh, thank you so much.

PETER: Bye bye.

ED: Bye, Lisa.

LISA: Bye.

BRIAN: So long.

If you’d like to join us in a future show, have a look at the topics we’re working on. They’re all at backstoryradio.org.

ED: we’re going to take a short break. When we come back, the hand of big government protecting your Twitter feed.

PETER: You’re listening to BackStory. And we’ll be back in a minute.

BRIAN: This is BackStory. I’m Brian Balogh. And I’m here with Ed Ayers.

ED: Hi. And Peter Onuf’s with us.

PETER: Hey, folks. Today we’re talking about intellectual property. Patents, trademarks, and, yes, copyrights.

BRIAN: One of essential questions in the history of copyright law is what has actually counted as a copy. Obviously, something like a photocopy is, well, a copy. But what if someone takes your story and turns it into, let’s say, a musical. Or a painting.

What if somebody takes your story and simply tells it in another language?

SIVA VAIDHYANATHAN: In 1852, Harriet Beecher Stowe actually took a publisher to court because there was a German translation, an unauthorized German translation, of Uncle Tom’s Cabin that was circulating.

ED: This is Siva Vaidhyanathan. He’s a professor at the University of Virginia and author of the book Copyrights and Copywrongs.

SIVA VAIDHYANATHAN: And throughout the United States at the time, there were large pockets of German-speaking and German-reading people. And Stowe– actually Stowe’s husband because Stowe didn’t have legal standing, being a woman– Stowe’s husband sued for copyright infringement over one of these German translations.

And the court ruled that because copyright protects the specific string of text or the specific mode of expression and not the underlying idea, that the translation of Stowe’s characters and story into German didn’t count as a copy because all the translator did was take the ideas and put different letters to it.

BRIAN: All right. I admit that was confusing. What the court basically said was that Stowe’s only right was to protect her story the specific way it had been expressed. That is, using the English alphabet and grammar structure. You could tell the exact same story in German or French or Klingon, and because the letters– literally the letters on the page– were different, it was a different expression.

ED: And throughout the history of copyright, this has been the question. What counts as an original idea and what counts as an expression of that idea?

SIVA VAIDHYANATHAN: One of the most poorly understood aspects of copyright– and it’s the thing that I think I surprise students with the most when I talk about it– is that copyright does not protect ideas. Or it’s not supposed to protect ideas. It’s supposed to protect the expression of a particular idea.

So, for example, if I were to say, God said to Abraham, kill me a son. Abe said, man, you must be putting me on. God said, no. Abe said, what? God said, you can do what you want, Abe. But the next time you see me running and you better come.

What I just said right there is a string of text copyrighted by Robert Zimmerman, aka Bob Dylan. He owns it. And yet the story, the idea, is owned by all of us. Because it’s in Genesis.

So the Abraham and Isaac story is something that anybody can write a song about. That’s the idea. And the original text is, of course, in the public domain. But the specific expressions that Dylan uses he owns and will own for an incredibly long time.

Now, the idea-expression dichotomy holds up in theory. But then, when you’re suddenly talking about the theater being big business in the late 19th century, then you’re dealing with the fact that authors or songwriters are going to want to sell the rights to their work on the market for theater. So that’s about a transference from one media form to another. The creation of a derivative work.

And then think about the translation of certain things like books into plays and then plays into film. Well, that all becomes part of the story of making sure that in some ways ideas are protected. But there’s a lot of slippage between idea and expression.

ED: Siva says a lot of the slippage happened at the turn of the 20th century when ideas started, well, moving. In the early days of film, there really were no rules. Filmmakers could take the stories of famous authors– authors like Mark Twain or Charles Dickens, say– and turn them into movies, essentially without permission.

This new form of expression, the motion picture, created all sorts of problems when it came to storytelling.

SIVA VAIDHYANATHAN: There was a very big case in 1909 involving a very big novel, Ben Hur, a tale of the Christ. Which was a novel that came out in 1880. It was written by a Civil War general named Lew Wallace. Is had sold 2 million copies. It was one of the biggest sellers of late 19th century America.

And, of course, it tells a story of a Jew wrongly accused of plotting to kill the Roman governor of Judea. And ultimately he ends up converting to Christianity. And it’s a grand tale.

Now, a film company called Kalem Company, which was the biggest challenger to Edison in the early days of film, decided to put out a film version of Ben Hur with the chariot race and a bunch of– more like vignettes of the novel. And this occurred at the same time that Harper and Brothers, the publisher, had actually sold the rights for dramatic adaptation to a stage company.

BRIAN: Meaning, if you wanted to dramatize Ben Hur you needed to ask the stage company for permission. The problem was, nobody had ever said that film, this new medium, was a dramatization. To Kalem and other filmmakers, movies were different from plays. And they didn’t want to pay for the rights.

SIVA VAIDHYANATHAN: Ultimately, the courts ruled against Kalem and Company.

ED: And they did so in a way that would have thrilled Harriet Beecher Stowe. The court said that film was indeed different from theater. But that didn’t mean that filmmakers could just take whatever stories they wanted.

Instead of paying stage companies, filmmakers would now pay authors for the right to use their stories. Stowe had trouble simply stopping unauthorized translations into a new language. But now, writers could stop translations of their work into entirely new mediums.

It was one step closer to protecting ideas and not just their expressions.

BRIAN: And Siva says, actually, this works pretty well for a while. Writers are getting paid, studios are making money. But in the 1970s, that line between idea and expression, between what can and cannot be copyrighted– that line got really blurry.

Because with the advent of the television and the VCR and the cassette tape, all these different ways to consume and copy media, creators got scared.

SIVA VAIDHYANATHAN: And so what we have at that moment is the stakes are so much higher. The stakes of profitability for these industries are higher. The complexity of rights transfer is higher. And, by 1976, Congress realizes that they can’t keep adding new media forms and guessing and predicting the new media forms. And so they decide that anything fixed in a tangible medium of exchange– that’s the phrase in the law– shall be considered copyrighted instantly.

And this is a pretty significant term. Because this is why, today, copyright is the most pervasive law that regulates culture that we have in America. It may be one of the most pervasive laws we have in America. Any time that you write an email, any time that you write a poem, any time that you sing a song, any time you share a photo on Facebook, you are participating in the copyright system.

ED: It’s all protected, Siva says in ways that Harriet Beecher Stowe could never have imagined.

[MUSIC – BOB DYLAN, “HIGHWAY 61 REVISITED”]

PETER: We’ve spent most of the hour today looking at intellectual property that does have some sort of government protection. But we’re going to end the show with something a little different.

CARLOS MENCIA: Yes. Go ahead. Tell everybody–

JOE ROGAN: You steal material–

CARLOS MENCIA: What material?

JOE ROGAN: Constantly.

CARLOS MENCIA: What material?

PETER: OK. So what you’re hearing is an argument between comedians Carlos Mencia and Joe Rogan, recorded on stage in 2007. Mencia had built up a reputation for breaking one of the cardinal rules of stand up comedy– don’t steal jokes.

CARLOS MENCIA: Do you really think that a Jewish guy came up with that joke [BLEEP]? Do you really think that?

[CHEERING]

ED: In stand up comedy, there’s never been a practical way to protect your intellectual property. Suing someone for joke theft is expensive. And it’s not always clear what elements of the joke are even fair game for copyright.

BRIAN: Chris Sprigman is a law professor. And along with as co-author, Dotan Oliar, Sprigman looked into how stand up comedians develop their own ways of protecting intellectual property.

His research starts in what has to be the best archive in America.

CHRIS SPRIGMAN: I spent a couple of days digging around in Phyllis Diller’s joke file that sits in the Smithsonian. It’s a cabinet full of about 50,000 jokes on index cards. And if you look through that joke file, there were jokes that she wrote. There were jokes that she bought. And there were jokes that, for lack of a better word, she stole.

PHYLLIS DILLER: My husband is usually absolutely no help because he boozes. He gets so high he won’t drink without a net under him.

[LAUGHTER]

BRIAN: Wasn’t her fake husband named Fang?

CHRIS SPRIGMAN: Yeah. She had a fake husband named Fang who she told a lot of jokes about. A lot of which, by the way were stolen from a comic strip that appeared for many years called “The Lockhorns,” which was about a warring couple.

BRIAN: Remember it.

CHRIS SPRIGMAN: Right. She’s got hundreds and hundreds of these “Lockhorns” panels cut out of the newspaper and pasted onto index cards. And if you know Phyllis Diller, you can hear those “Lockhorn” panels reflected in her jokes about her fictional husband, Fang.

PHYLLIS DILLER: He spent one night in the front yard trying to kill the garden hose.

[LAUGHTER]

BRIAN: Phyllis Diller, as I recall, appear on Ed Sullivan.

CHRIS SPRIGMAN: Yes.

BRIAN: So if someone she stole that joke from is listening to Ed Sullivan, would he or she be a little pissed off?

CHRIS SPRIGMAN: Well, possibly. But the norms about who owned jokes are very different before, say, the early 1960s. The first style comedy was really based around the joke. So these are joke slingers. They’re one liner artists. They’re telling joke after joke after joke.

They adapted jokes. They took them and made them their own. They didn’t think of themselves as stealing. They just thought of themselves as telling jokes in the canon.

So what’s interesting to me is the difference between the post-vaudeville environment of free appropriation, comedians basically engaging in what they used to call the corn exchange, whereby they stole jokes, they traded them.

[LAUGHTER]

CHRIS SPRIGMAN: Verses now, where they don’t. Where they have a norm system that pretty fiercely guards individual ownership of jokes.

BRIAN: Tell me what changed in the early ’60s, mid-60s.

CHRIS SPRIGMAN: So in the early and mid-60s, you have a generation of comedians– so Lenny Bruce being probably first among equals. Then Mort Saul being another.

These are comedians who reject the post-vaudeville model. They are not just telling interchangeable jokes. They are investing in individualized material.

So if you listen to Lenny Bruce, his material is very tied to his particular personality, his character.

LENNY BRUCE: I want to have you over to the house, but I got a but of a problem now. And I don’t want you to think I’m out of line. But I got a sister. And I hear that you guys, you know– it’s my sister.

And– well, I’ll put it to you a different way. You wouldn’t want no Jew doing it to your sister, would you?

[LAUGHTER]

CHRIS SPRIGMAN: That style of comedy, I would say, is dominant, is almost completely dominant today. So I think of a modern comedian. I often use the example of Sarah Silverman. Because people know her. She’s accessible.

BRIAN: Mmhmm.

CHRIS SPRIGMAN: So her jokes are absolutely tailored to a character that she plays on stage. This character of the morally obtuse, just completely not clued in monster.

SARAH SILVERMAN: They say, you know, strippers, you know, they end up being in porn. And, you know, it’s like a gateway job to porn. And–

[LAUGHTER]

SARAH SILVERMAN: I don’t know. What are you going to do? I’d never do it. And I’ve– I could if I wanted to. I’ve been approached.

[LAUGHTER]

SARAH SILVERMAN: Or if I did it would be purely, you know, for political reasons. Because I do not think there are enough Jewish women represented in porn.

[LAUGHTER]

CHRIS SPRIGMAN: So this is the new style of comedy. And along with this new style of comedy cam a new set of attitudes toward comedians taking other comedians’ jokes.

And when comedians hear other comedians doing what they think is stealing, appropriating others’ material, they react. They confront. And this is something very different, as well, from what you saw in the day of Phyllis Diller.

BRIAN: So, the million dollar question. How do they react? What do they do?

CHRIS SPRIGMAN: Most often, just like in any other dispute, these things get settled. So the comedian agree– who’s told the joke– agrees not to tell it. Or to tell it differently so that it’s recognizable as a separate joke. Or to buy the joke, lock, stock, and barrel. That occasionally happens.

But if there is no agreement, then you see the community of comedians imposing penalties. So the basic penalty– and this is surprisingly effective– is bad mouthing.

So if you think about it, comedians are very good at bad mouthing on the whole.

BRIAN: Yeah, it’s their job. Stock and trade.

CHRIS SPRIGMAN: And it’s very unpleasant. Let me give you an example. Robin Williams, who was accused of stealing a lot of jokes when he was a stand up comedian– he became a movie star, so stand up wasn’t quite as important to him later in his career.

But he said in an interview in Playboy Magazine that he stayed out of comedy clubs. Because every time he went into a comedy club he was given dirty looks and bad mouthed. And it was just–he couldn’t take it. So there’s an example of someone actually driven away from the craft because of his reputation for stealing jokes.

And I’m sure Carlos Mencia– in fact, I know that Carlos Mencia attracts a lot of the same kind of attention these days.

BRIAN: If we step back from the details and think about the purpose of copyright law, which presumably is to inspire and encourage creativity and to reward creativity, do you think that creativity is better served for these comedians through these informal mechanisms than it would be through a more formal regime of copyright?

CHRIS SPRIGMAN: The justification for an IP system– and, of course, comedians have an IP system. It’s just not a formal one. The justification is that without it, no one will invest in the creation of new art, literature. Of which jokes are a subcategory.

I think if you look at comedy, it doesn’t ring true. Before there was this informal norm system that basically gives IP rights to comedians, there was plenty of material. After the norm system, there was plenty of material. What really changed was the kind of material.

BRIAN: And even there, by your own account as I understand it, the change in comedy in the mid-60s was not driven by a change in the IP self-enforcement. It was the other way around.

CHRIS SPRIGMAN: Yeah. So I think cultural changes in America– so the cultural changes that accompanied the ’60s, the rise of individualism, the rise of the counterculture. This is what changed comedy. I think the norm system springs up in the wake of that.

And then the norm system helps to solidify those changes.

BRIAN: Right.

CHRIS SPRIGMAN: It helps to make them sensible.

BRIAN: And it holds it in place.

CHRIS SPRIGMAN: Exactly.

BRIAN: So perhaps this obsession with subsidizing creativity, if you will, is the wrong question to be asking in the first place.

CHRIS SPRIGMAN: Well, it depends on what kind of creativity we’re talking about. So, if we’re talking about new drugs, new pharmaceuticals– those are so expensive to invent. They’re so expensive to get through clinical trials.

There, I think, the conversation about how to subsidize the creation of these things is a very important conversation. When we’re talking about things like jokes or fashion designs or even songs or poems or academic work or really pretty much all other types of creativity I can think about which tend to spring out of people regardless of what you do, the effect of IP, I think, is more to shape the way our creative industries provide those things, to shape the kind of material that we get, than it is to ensure that we get it.

I think we’re going to get it. The question is, precisely what kind of paintings do we get? Precisely what kind of jokes? And who provides them? Is it more individual provision? Or is it more corporate provision?

These are the questions that I think IP raises. They’re interesting questions. But they’re not the kind all or nothing question about whether we get creativity.

[MUSIC]

BRIAN: Chris Sprigman is a professor at the University of Virginia. His book is Knock Off Economy. Special thanks to Dotan Oliar for his work on the comedy research.

And that’s going to do it for today, folks. In case you were wondering, this show, like all our shows, is available to download for free, no permission necessary, at our website backstoryradio.org.

PETER: Thanks for listening. And don’t be a stranger.

BRIAN: Today’s show is intellectual property of Jess Engebretson, Eric Mennel, Chioke I’anson, and Emily Charnock. Our senior producer is Tony Field. Jamal Millner is our engineer. And Allen Chen is our intern. BackStory’s executive producer is Andrew Wyndham.

Major support for BackStory is provided by the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, the University of Virginia, Weinstein Properties, an anonymous donor, and the History Channel– history made every day.

FEMALE SPEAKER: Peter Onuf and Brian Balogh are professors in the University of Virginia’s Corcoran Department of History. Ed Ayers is President and Professor of History at the University of Richmond.

BackStory was created by Andrew Wyndham for the Virginia Foundation for the Humanities.