When I first met Tim Sandefur, at an IHS Liberty and Society seminar, we started arguing before we’d even said, “Hello.” I don’t think we’ve ever really finished that particular argument, which concerned the meaning of “liberal” and what to do about it, because he still doesn’t agree with me. Fortunately, however, I did win an early argument with Tim about where he should go to law school, convincing him to attend Chapman University School of Law. And I certainly cannot argue with his decision, after graduating from Chapman, to join the Pacific Legal Foundation and pursue a career in smashing statism.
Tim’s blog, Freespace, recently offered a couple of amusing and informative posts about Credence Clearwater Revival’s run-ins with the law. In one of those posts, he relates how John Fogerty—the band’s lead guitarist, lead vocalist, lead songwriter, and (as Tim convincingly argues) lead leader—faced a lawsuit for plagiarizing himself. Tim concludes, “The possibility of self-plagiarism seems to me to be excellent evidence of the incoherence of a natural right to copyright. Perhaps Professor Bell will comment on the subject.”
Me? Comment on a question of intellectual property? Oh, gosh. If you insist.
Paradoxical though self-plagiarism may at first sound, I don’t think it says much the fundamentals of copyright. Rather, it says merely that copyright functions much like tangible property. Regardless of whether it arises naturally or by fiat, property can be acquired by creation, transferred voluntarily, and trespassed by its initial owner in violation of that transfer.
Fogerty was accused of copying without authorization a copyrighted work that he had created and then transferred to a music publisher. Even someone who believes in a natural right to copyright should see that as a prima facie case of self-plagiarism. It follows logically from the initial acquisition of a copyrightable work (by creation), the transfer to another party of that intellectual property (by sale), and the trespass on it by the same party who initially created it (by Fogerty, the alleged self-plagiarist).
Like Tim, I doubt that copyright constitutes a natural right. And, like him, I think that it does make sense to talk about natural rights to other sorts of property. But, perhaps contrary to him, I don’t see any paradox in violating a natural right you’ve acquired but transferred to another person. As always, though, I’m happy to argue with Tim about the question.