When it comes to last Sunday’s NYT coverage of “designer dogs” (labradoodle = labrador crossed with poodle, for example), I do indeed have a dog in that fight. My family shares a house with a well-loved, brilliant three-year-old poodle named Lizzie, after Elizabeth Bennet. A neighbor of ours, who shares a house with a relative of Lizzie, looks at the labradoodle in the neighborhood and says: “Dumbing down the breed.”
The debate reminds me of the allegedly dilutive effect of unauthorized sequels to popular novels and films. Does a world of labradoodles betray an externality that causes market failure and an underproduction (or underappreciation) of poodles? Will dog shows have less popular traction if “mongrel” breeds proliferate? I don’t see it; if anything, as my neighbor’s comment suggests, the proliferation of varieties of “thing” seems to enhance the value of the original. Why aren’t AKC breeders celebrating, not battling, designer dogs?
IIRC, that’s Posner’s argument for rights of publicity, Mike. Rebecca Tushnet’s recent piece on fanfic suggest, otoh, that as long as the “canon” is intact, derivatives don’t dilute the value of the primary text. And cf. Justin Hughes on Recoding.
I think the question should boil down to your measurement of social value — you seem to be talking market incentives and market effects. There, my sense is that you’re right. But you could discuss this in terms of value at different registers…
Mike – descriptively, generally, from a market perspective, yes — I think derivatives that reference the primary source generate more wealth for the “canon.” So, it follows, I think Posner is wrong about the market operation of the right of publicity.
But it also depends on your register of value. If we move outside the observable economic sphere, we get into some of the issues Justin Hughes has talked about in his “Recoding” paper. A certain purist set may see negative value in dilution of the thing at issue, despite the economics of the situation.
I figured that the post itself was suggestive enough of the contrast between Posner/Hughes and Tushnet that I didn’t need to draw analogies between any particular IP scholar and a poodle. I did, however, wait until the last moment to remove a reference to DRM for dogs.
Hey Mike — apologies. I thought the first post hadn’t been posted (the delay for authentication confused me) — so the second post was just reiterating the first.
Your post was certainly suggestive and I guess I was really just translating it into things we both already know, which didn’t add much. We indeed can talk about this stuff obliquely.
So perhaps what I meant to say was: Labradoodle, his eyes uncovered!
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