One problem with writing a book on intellectual property is the difficulty of keeping up with the rate at things become even more absurd.
http://www.swans.com/library/art11/aah045.html End Of Story by Alma A. Hromic Arts & Culture (Swans - November 21, 2005) In sane times, creative people were treasured and supported and called "gifted." In sane days, a muse arrived uninvited and was welcomed with open arms and feted and praised and sacrificed to in order that she should stay and keep her bounty flowing. These days, apparently it is a matter of the utmost importance to figure out how, if the muse is to be allowed to stay, to charge her rent. In modern American society there doesn't seem to be a thing under the sun that doesn't, in some way, shape or form, lend itself to litigation. Sometimes it seems that the only professionals that still earn good money are the lawyers, and since they are running out of things they can sue people about, one legal or paralegal shark has come up with a shining new penny of an idea: let's fix it so we can patent STORIES. That way, we can sue people who "infringe" our copyright. Money for nothing. But let's backtrack and go over some of the things that appear on the website of Knight & Associates ("The First and Best in Storyline Patents!") -- it's at plotpatents.com, if you don't believe me and want to go and wade through this twaddle yourself. For those of us in the industry the very first sentence of Andrew F. Knight's justification is a complete idiocy: "A Storyline or Plot Patent application," says he, "seeks to claim a new and non-obvious fictional plot of storyline." We all know that there are a limited number of plots in existence -- depending on who you have read or listened to last, the number ranges from 3 to 42, but everyone agrees that basically this is all there is. You have what you have, no more, no less. EVERY STORY IN CREATION can be reduced to one of these plots, if you reduce it far enough. Let someone "patent" these, and we're all through -- there will never be another book, another movie... well, actually, let's just go back to the website and quote from that. There will never be another "...movie, motion picture, book, novel, novella, short story, television show, play, commercial, advertisement, or any other fictional account." We, the creators, are plumb out of business -- that, or we are mice for some fatcat lawyer to play pounce with. What publisher, what producer, will take on a new project knowing that they can be sued for the shirt on their backs if they commit to it, simply by virtue of some gold-toothed gold-digger smirking up to them and pointing out that their new storyline, reduced to its lowest common denominator, matches something that a "client" holds a "patent" to. We have copyright law, which protects stories. But according to Mr. Knight copyright law protects only "expressions" of stories, not the storylines themselves, and this is a Bad Thing. He has an Expected Value of a Storyline, which he then proceeds to show us via a mathematical equation -- and after all, we know that if you can't prove something in words, throw math at it until enough people are unable to comprehend your proof and a critical mass of them simply takes your word for it (for what it's worth, he comes up with $67,500 -- not a bad day's work if you can get it). The idea is, you see, that you should patent everything. Right now. Get BROAD PROTECTION, because "...you may soon find yourself infringing your competitor's storyline patents." Competitor? What competitor? Another writer? Ye gods and little fishes -- write a better book on the exact same idea as someone else, and people will buy your book over that other person's -- that is the only competition, just exactly how good you are at what you do. Patent a storyline, and you might as well patent the clay that the sculptor uses to make a statue or a vase. The basic clay is everyone's raw material; it's what you do with it that matters. This very idea proves that Mr. Knight has no notion about what creativity or art actually is or what it entails. All he sees are greenbacks. Our intrepid patent planner then tells us to go and consider the unique plots of things like "Memento," "Butterfly Effect," "Groundhog Day," "The Village," etc. I will grant you, the creators of those individual works did unique things to make their product stand out and become, and remain, memorable. But this is already covered by copyright, and if someone else tried to publish a story like "Memento" they would be smartly told, "It's been done, sonny" -- that is to say, unless they did something even more vividly original to the idea which both stories started with. The idea of memory loss, of a yearning for revenge for a wrong which has been done, of knowing whom to trust, of whom not to believe, of not knowing which of your "memories" are real and which are something that you have created to shield yourself against truths you cannot handle. Reduced to this, there are plenty of fish matching that description in the fiction sea. But look at what Mr. Knight considers to be a "patentable storyline" (my comments in CAPS): "A process of relaying a story having a unique plot, the story involving characters and having a timeline, comprising (WELL, OF COURSE IT "INVOLVES CHARACTERS AND HAS A TIMELINE." IT'S A STORY!): indicating that a first character has an inability to retain long-term memories after a time in the timeline; indicating that said first character trusts notes written by said character; indicating that said first character believes that said first character has been wronged by a perpetrator; indicating that said first character desires to perform an act of retribution against said perpetrator; indicating that said first character believes that attempting to perform said act is a futile endeavour; indicating that said first character writes a note to said first character indicating that a second character, whom the first character believes is not the perpetrator, is the perpetrator." AND EVERYTHING ABOVE IS NOT A GENERIC STORYLINE. IT IS THE PLOT OF THE STORY AND THE MOVIE CALLED "MEMENTO." AS SUCH IT IS ALREADY PROTECTED BY COPYRIGHT. PATENTING THIS PATHETIC SURGICALLY CASTRATED AND MULTIPLY-AMPUTATED VERSION OF THAT PLOT SERVES ABSOLUTELY NO PURPOSE OTHER THAN TO TAKE ONE OR MORE OF THE POINTS, RENDERED SOUR AND TASTELESS BY BEING TRANSLATED INTO LEGALESE, AND APPLYING IT TO A COMPLETELY UNRELATED STORY IN SUCH A WAY AS TO ENABLE A LAWYER TO WRING MONEY OUT OF SOMEONE WHO DOES NOT OWE IT AND PROBABLY CAN'T AFFORD IT. In the legal brief on the website, Mr. Knight states that a valid US patent must satisfy, at a minimum, the requirements of Section 101 ("Utility"), 102 ("Novelty"), 103 ("Nonobviousness"), and 112 ("Definiteness") of 35 USC. How on earth is a work of fiction applicable to this approach? What is the utility of a work of fiction? It is to entertain, and in order to achieve this the creator of a work of fiction must be able to have the freedom to seek out material that will entertain. Bar such a creator from the well of storyline by patenting everything under the sun, and the utility vanishes. Novelty? Every book, every movie, is new. It may remind you of other things you've seen or read, sometimes forcibly, but all the ideas contained therein come from the same place -- from life. Patent a storyline and you might as well start patenting existence itself. "Nonobviousness"? That one varies -- plotlines will reveal themselves to different people at different rates. I, for instance, immediately realized what "Sixth Sense" was about, less than five minutes into the film. There were people whom I count as my friends, intelligent and perfectly rational people, for whom the movie's denouement was a shattering surprise. To me it was obvious; to them, it was not. Who, then, will set themselves as the judge for the "nonobviousness" of a work of fiction? And finally, "Definiteness"? What does this mean, precisely, when applied to a work of fiction? We start getting to the middle of the legal brief, and we get this lovely paragraph: "The author has submitted to the US Patent and Trademark Office several test patent applications on novel storylines, utilizing various claim forms and a creatively distributed lexicon. Regardless of which structures and words, if any, ultimately pass muster in the Patent Office, and subsequent litigation..." (emphasis mine) Let's parse this into English. Mr. Knight is practically drooling at the prospect of lovely new litigation avenues that might be opening up here -- remember those $67,500? And the author is apparently willing to lie and to cheat, using "creatively distributed lexicon" (now there's a patentable phrase) in order to achieve a situation where such litigation becomes possible. One might say that I am being excessively malicious and attributing motives where none exist -- but I don't have to say anything that Mr. Knight himself has not already said in a separate part of his website squirrelled away under the heading "opportunities." Here, he helpfully splits things up into "Opportunities for the Media Industry" and "Opportunities for the Intellectual Property Law Industry." He draws big scary pictures for the Media Industry ("If you don't do this someone else will and then you'll have to pay THEM!") and then explains where the Intellectual Property Law Industry can climb aboard ("...this new industry may represent $10-20 million per year in new legal business -- in prosecution alone! Add in litigation and portfolio management, and the industry may become a truly significant source of new income"). The kicker, of course, is this: the author's firm, Knight and Associates, is "available" to both industries as a consultant firm and "a full-service patent prosecution firm." Please contact a representative. It would seem that out of the goodness of his heart Mr. Knight is setting out to protect the public from "hackneyed plots" and dull movies. Hollywood, he says, "...is failing. Hackneyed plots are commonplace in modern movies, and creativity has been replaced by expensive special effects... There is a substantial need for original, intellectually exciting plots in all forms of entertainment, such as novels and, particularly, motion pictures." As an apparently complete ignoramus on what this industry is all about, Mr. Knight does hit one particular nail on the head -- there ARE a disproportionate number of "special effects" in modern movies. But he fails to respond to the point that the movies without the special effects are pretty nearly relegated to the "art house" circuit and have theatre runs of three weeks or less. People WANT the special effects -- that's what they go to the movies to see, unfortunately. But the more important point is this: it is not the plotlines that are to blame for the situation. It is in how the plotlines are being developed, treated, and presented. And this is emphatically not what Mr. Knight is out to patent, for the simple reason that it is unpatentable -- it is human creativity. But human creativity needs its clay. Patent the clay, and it all goes away. Concluding his impassioned legal brief, Mr. Knight states the following: "...the value of [an innovator's] copyright depends on his ability as a performer, not as an inventor. An artistic inventor who invents a fantastically original and compelling storyline may not be a particularly skilled writer. He may, for example, have a limited vocabulary and a poor understanding of grammar. Any book he creates will be avoided by any potential buyer who reads the first paragraph, such that the copyright value of his extremely valuable invention is nil. . . . [the producer] can obtain unearned financial benefit from the inventor's unrewarded hard work and innovation." Having an idea, Mr. Knight, is not hard work. You are making the fundamental error in separating performer and performance -- having ideas and expressing them is an intrinsic whole; if you cannot express your idea, then you cannot copyright that idea and claim that someone else, who had a similar idea but expressed it better, read your mind and stole it from you. Ideas are the cheapest thing in this industry, and what the audience -- the readers, the movie goers -- are paying money for is to see how this idea has been shaped, treated, written, moulded, filmed, performed. If it is performed by an entity different from the performer, then that person or people should be paid for providing the idea, and the performers should be paid for interpreting it. But if the idea originator is incapable of putting the idea across, either by him- or herself or through the proxy of other people, then it is no longer his idea to claim. In your world, Mr. Knight, apparently those who can, do, and those who can't, sue. I wonder if Mr. Knight has heard about the storyline that involves a goose that lays golden eggs. Let's put it this way -- patent the egg such that the goose has to pay for laying it, and there is very little point in sitting back and waiting for another egg. End of story. End of all stories, everywhere. There goes all that lovely money. Michael Perelman Economics Department California State University michael at ecst.csuchico.edu Chico, CA 95929 530-898-5321 fax 530-898-5901
