Are Patents and Copyrights Morally Justified? - Tom G. Palmer

~44 HarvardJournal of Law & Public Policy [Vol. 13
or a novel. We should not pretend that all connection between
the artist and the creation is severed the first time the work is
sold.”° 8
Representative Markey, like the philosophers who have influenced
him, has misunderstood the ontology of the work ofart.
The connection between “theartist and the creation” is indeed
severed, not the first time the work is sold, but the moment that
it is finished.’ 09
Referents ofdiscourse can enjoy various kinds ofdependent
being. They may, for example, be dependent upon another
thing, as in the brightness of a surface being “dependent” on
the surface, or theymay be dependent in another way, as in the
way that ahand is dependent for its being on the body to which
it is attached, although the hand and the body may become separated,
unlike the surface and the brightness. t ’ 0
Two senses of dependence are confused by advocates ofpersonality-based
intellectual property theories: the dependence
of the art work on a human agent or agents for its creation, and
the dependence of that same work of art on a human agent or
agents for its continued existence. While a work of art obviously
depends on its creator(s) for its creation, and is therefore
a “translation ofhis freedom into an external sphere,” once it
is created it enjoys its own objectivity. The sign that an art work
exists as an objectivity is that wecan always return to it and find
the same work. We do not experience a different work every
time we see or read Shakespeare’s Othello.”
Once created, works of art are independent oftheir creators,
as should be evident by the fact that works of art do not “die”
when their creators do. While no longer dependent on their
creators, they nevertheless remain dependent on some human
108. Markey, Let Artuis Have a Fair Share of Their Profits, N.Y. Times, Dec. 20, 1987,
§ 5, at 2, col. 2.
109. This of course raises the question of when the work is finished. Who would
know when it was finished? Would anyone else undertake to finish Schubert’s “Unfinished
Symphony”? The artist may indeedbe in the privileged position ofdetermining
when a work is finished, but that does not privilege the subjective experience of the
artist in the constitution of the art work as such.
110. Thestrategic differentiation betweenvarious kinds ofdependenceis elaborated
in Husserl, Investigation III: On the Theorj of Wholes and Parts, in 2 LOGICAL INVESTIGA-
TIONS 436 0. Findlay trans. 1970); see also PARTS AND MOMENTS: STUDIES IN LoGic AND
FORMAL ONTOLOGY (B. Smith ad. 1982).
111. I used the possessive—”Shakespeare’s”—in describing this play to highlight
the relationship ofdependence that the work does haveon its author. Shakespearehas
been dead for centuries, while Othello lives on. One might say, however, that Shakespeare’s
mind remains active or still “lives” in Othello.