“…this is my life”: Corporate Biography, Moral Rights & Being Slow to BerneILN IP Insider December 19, 2018
James P. Flynn, Member of the Firm and the Managing Shareholder of the firm’s Newark office, authored an article in ILN IP Insider, titled ““…this is my life”: Corporate Biography, Moral Rights & Being Slow to Berne.”
Following is an excerpt:
People often do quite well financially selling their life story. But stop and think for a minute what that statement means — “selling their life story.” The complex personal investment each writer makes in his/her craft and the further psychological dynamic of autobiography have each seen repeated comment and exploration. SeeCalvin D. Peeler, From The Providence Of Kings To Copyrighted Things (And French Moral Rights), 9 Ind. Int’l & Comp. L. Rev. 423, 426 (1999)(authors’ moral rights “evolved from a societal concern about individual author’s and artist’s personality and reputation investments as they are exhibited through their creative work”); C. R. Romiţan, The Right Of Authorship On A Work, 1 AGORA International Journal of Juridical Sciences 155, 158 (2014) (“The authorship of a work belongs only to individuals, because only they have the specific qualities of the creator, namely: intelligence, personality, sensibility, faculty to create, to think, to formulate ideas and also to expose them in an original and personally form. In order to recognize the authorship of a work, the law does not require any condition because it arises from the mere fact of creating the work”); see also Livingston, P. (2016). “Authorship.” In N. Carroll & J. Gibson (Eds.), The Routledge companion to philosophy of literature (pp.173-183). New York: Routledge, at 14 (autobiographies convey perspectives beyond what is “manifested in the texts alone”); Burke, P., “Representations of the Self from Petrarch to Descartes,” pp. 17-28 in Porter, R., (1997) Rewriting the self: histories from the Renaissance to the present, London: Routledge, at 17 (“‘man became a spiritual individual and recognized him- self as such’. The rise of self-awareness or subjectivity was reflected by the rise of autobiographies”). Does a life story sold cease to be one’s own life? Is it no longer an individual’s personal history? Does it become someone else’s life? When I remember and describe my own history in my own language and way, has not my history somehow merged with my expression of it? While one might ask if I can get it back, is it not just as natural for me to say why should I have to do that, as my story has never left me? I mean, it is mine, isn’t it?
Such questions have been raised in real life courts (including a recent one in a New Jersey court and those on which basketball is played) as well as in fiction ranging from Disney to a Seinfeld episode or two. Given this blogger’s penchant for pop culture conduits into intellectual property law issues, a reader could reasonable anticipate that I have given up the formality of examining real cases. Perhaps I have done so in favor of an extended riff on what could have been Kramer v. J Peterman, et al. That would have been a possible fictional detour open to Seinfeld after the Van Buren Boys episode (in which Kramer sold all the stories he had accumulated over a life time for just $750) instead of the fictional course actually taken, the Peterman reality tour in the Muffin Tops episode.
But I have not given up on real cases. I am instead writing about a case now winding its way through the United States Court Of Appeals for Third Circuit, TD Bank NA v. Vernon W. Hill, II. In that case, Vernon Hill, a former banking executive, was found by a federal district court to have infringed plaintiff’s copyright and breached his contract with plaintiff by using in his own autobiographical tract material that he had written for any earlier, ultimately unpublished autobiography. The rub, naturally, is that the earlier manuscript was done as a work for hire for Commerce Bancorp, his then employer.