Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930

7. The Corporation’s Money Paid for the Painting; Its Artist Colored It; Its President Designed It

7 The Corporation’s Money Paid for the Painting; Its Artist Colored It; Its President Designed It Inventors and authors have long been imagined to be individual humans because originality and creativity are imagined to be uniquely human attributes . As patent and copyright law came to recognize the validity of corporate intellectual property in the twentieth century, courts and legislators had to reconsider the relation between the creative employee and the corporate employer . In the burgeoning twentieth-century market for intellectual property as consumer goods, firms used the names of individual creators as markers of quality or authenticity to brand their products even as the commercialization of the production of art and books demanded corporate control of intellectual property. As businesses sought intellectual property protection for an increasingly broad and commercialized array of products, particularly in the area of copyright, the legal justifications proffered by their lawyers and accepted by judges for granting copyrights changed from protection of individual artistic expression to protection of corporate investment in producing innovative artifacts of popular culture. Firms insisted upon control of employee talent while demanding intellectual property protection for commercial products that were not “art” or “literature” as defined by the romantic celebrations of individual creativity. Their lawyers reconciled competing imperatives of corporate control and individual artistic expression by developing informal systems for attributing works to employees while insisting that legal rules of express or implied contract gave their clients ever greater control of both the process and products of employee creativity. Authorship corporate intellectual property  [212] became a brand and a legal fiction, and the contract of employment emerged as a technology of authorship. Courts and firms deployed romantic images of individual authorship to expand intellectual property rights in works that were created in a bureaucratic business environment anathema to the romanticized notion of authorship that had previously justified copyright monopolies. Courts first analogized the corporation to the studio or atelier of the great artist where the corporation ’s president did the creative work and the corporate employees, like a great painter’s assistants, filled in the background and unimportant details. Walt Disney was to his animated films as Titian was to his paintings. Eventually it was no longer necessary to imagine the corporate president as the artist; as the legal fiction of corporate personhood gained traction in popular culture, law imagined the corporations as the artist. The Disney Corporation became the author. While corporate personality was transforming the notion of collective authorship of commercial works, the implied contract of employment acquired new meaning that consolidated corporate control of employee creativity. Courts began to see commercial creation of books, lithographs, and other popular copyrighted works as a form of corporate R & D which firms should own by virtue of the corporate investment in the creative process. Courts used contract concepts to justify a shift from the old rule of presumptive employee ownership to a new rule of corporate ownership. Contract was fictionalized as an exercise of individual will and intention just as authorship ceased to be imagined as an exercise of individual will and intention. Rand McNally, the map publisher, accommodated the realities of bureaucratic production of copyrights with the persistent need to attribute works to individual creators by devising internal corporate processes for attribution that substituted for copyright ownership. At Rand McNally, authorship became simultaneously a process of collective production and a brand advertising certain attributes of a commercial product. In the market for commercial art and texts, corporate “authors” deployed norms of attribution in the place of the law of copyright as the cultural capital of authorship. A nonlegal custom of attribution as a creator was all that was left to artists, authors, and inventors. A claim to attribution became the intellectual capital—but never the property—of the employee-creator. It also became the way in which corporate merchants of commercial products of “art” and “literature” built consumer loyalty to the corporate brand. Attribution of corporate products to individual employees guaranteed the artistic authenticity of the fabricated cultural commodities. [213] The Corporation’s Money Paid for the Painting The Corporate Author and the Expansion of Intellectual Property As intellectual property became more likely to be created in collaborative work settings, no single individual could plausibly claim to be the inventor or author, and no one person could have a compelling moral claim to control the idea or knowledge. As a consequence, when the employer was a corporation, its...