Did Donn Zaretsky Take A Position On Appropriation and Copyright? or, Why IP Is Not Real Property

But be careful. This tricky little hypothetical is sometimes used by the free culture party when talking about the death of creativity and culture. Their argument is this. That if third-world children, dying of AIDS, could be saved by unlawfully “appropriating” medical patents from Pfizer, then surely that means that appropriationists (or secondary users) are also morally and legally exculpated when taking copyrighted images without consent, or without having to apply current fair use standards under US Copyright law. Let me spell this out for you: the wallet hypothetical and the death/creativity hypothetical are very, very different. In other words, although the tangible-intangible property argument is plausible, the death/creativity one is not. The death/creativity hypothetical provides for two very different factual scenarios (death vs. cultural creation), with different legal doctrines (patents vs. copyrights), and with very different mediums of appropriation and expression (narcotics vs. images).

Regardless, the “what ifs” are fun to play. Heck, I often wonder, “what if I, 5′ 9″, 165lbs, and a 5 seconds flat in the 40-yard dash, could play middle linebacker for the NY Jets?” That’s fun to ponder, but not gonna happen. What does happen is that my friends and I play football at the local park, and we call ourselves the Williamsburg Copyrights — and best of all — I play both middle linebacker (we play a 4-3) and quarterback. Take that free culturists!

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