THE TRAGEDY OF THE CREATIVE COMMONS: AN ANALYSIS OF HOW OVERLAPPING INTELLECTUAL PROPERTY RIGHTS UNDERMINE THE USE OF PERMISSIVE LICENSING.

• Author: Joy, Reagan
• Position: SCP Foundation's creative writing project

CONTENTS INTRODUCTION I. AN OVERVIEW OF INTELLECTUAL PROPERTY AND PERMISSIVE LICENSING A. Copyright v. Trademark 1. Intellectual-Property Purposes 2. Overlapping Intellectual-Property Rights B. Copyright v. Copyleft 1. Permissive Licensing and Its Justifications 2. The Creative Commons Licenses 3. Overlapping Intellectual Property and Permissive Licensing II. Secure, Contain, Protect the SCP Foundation A. History of the SCP Foundation B. SCP Trademark v. the Creative Commons License III. SETTING RIGHT THE PROBLEM OF OVERLAPPING INTELLECTUAL PROPERTY A. Resolving the Duksin-SCP Foundation Conflict B. Resolving the Mutant Copyleft C. The Solution CONCLUSION INTRODUCTION

Secure. Contain. Protect. These three words are one way to view the purpose of intellectual property--as a means for obtaining and maintaining exclusive rights over a creative work or invention. These three words are also the tagline of a vibrant internet community: the SCP Foundation. (1) The SCP Foundation is a "unique collective writing project," where individuals from around the world contribute stories that are published on the website. (2) The community maintains a fictional database written from the perspective of an organization whose purpose is to protect the public by discovering and housing strange, and sometimes dangerous, anomalies found in nature. These anomalies range from an "extremely hostile" cement statue (3) to a cardboard box that periodically opens and releases origami dragons. (4) Since the SCP Foundation is a creative-writing project, the authors who contribute to the website each obtain a copyright to their own work. However, the SCP Foundation utilizes a Creative Commons license to allow subsequent creators to develop works from the stories on the website with greater creativity and flexibility. (5) The SCP Foundation's Creative Commons license specifically allows for anyone to use the works found on the website to create derivative works, so long as attribution is given to the original author and the derivative work is also made available for reuse under the same Creative Commons license. (6) The subsequent creators can even profit from their derivative works under this license. (7) Derivative works can range from artbooks (8) to t-shirts (9) to video games. (10) The SCP Foundation is considered unique because the community can continually grow the story and "anyone can develop it and benefit from it, given their adherence to the license." (11) As the SCP Foundation project shows, Creative Commons licenses, when used well, can increase creativity and innovation of intellectual property. (12)

Although the SCP Foundation is a great example of the benefits of using Creative Commons licenses, the SCP Foundation also illustrates the tension that can arise when different forms of intellectual-property protections conflict. Currently, the SCP Foundation is in litigation involving its copyright and Creative Commons license. (13) A man named Andrey Duksin successfully obtained a Russian trademark on the SCP Foundation logo. (14) He filed for the trademark after he used the logo in his own derivative work called ARTSCP. (15) In this derivative work, Duksin has created an art book that adds new art to accommodate the written entries on the SCP Foundation website. (16) He filed for the trademark because he felt that he had invested "a lot of money into promoting the universe and creating media content" and wanted to ensure that "no one shifty ... jumps in and profits." (17) But Duksin has gone further than just protecting his own work--he has used his trademark to take down legal derivative works made under the SCP Foundation's Creative Commons license. (18) These are not derivative works of ARTSCP, but rather permissible uses of the SCP Foundation content. (19) Even if these were derivative works from ARTSCP, it would not make a difference given that ARTSCP should be subject to the same Creative Commons license terms as the SCP Foundation's license. (20) Members of the SCP Foundation fear that Duksin could go so far as to take down the Russian branch of the SCP Foundation website because the website is using the logo for which he now has a "valid" trademark. (21)

The conflict playing out between Andrey Duksin and the SCP Foundation has implications outside of Russia. The conflict is reflective of one of the biggest debates in intellectual property: what is the purpose of intellectual-property rights? (22) Are intellectual property rights granted only to give a reward and provide a monopoly? Or are they granted to encourage disclosure and, therefore, more innovation and creativity? Further implicated by the Duksin-SCP Foundation conflict is a danger posed to permissive-licensing regimes, like the Creative Commons, that push against the idea of intellectual-property rights granting a monopoly--the danger that this type of licensing is legally inferior to more restrictive uses of intellectual property. This designation could make communities built around permissive licensing susceptible to strategic attacks by people claiming exclusive intellectual-property rights inconsistent with that community's goals.

As this Note argues, the purpose and values behind the use of a permissive license and a trademark are so completely at odds that there can be no compromise between them. Therefore, it should be impossible to obtain overlapping trademark rights to a creative work that is operating under a permissive license.

This Note aims to explain and address the problem of overlapping intellectual-property rights with a focus on permissive licensing. First, this Note provides an overview of copyright and trademark law and discusses the problem of overlapping copyright and trademark interests. Second, it introduces permissive licensing and provides some examples of different forms of permissive licensing. Third, it discusses the SCP Foundation and the problems that the SCP Foundation community has faced because of Andrey Duksin's trademark on the SCP Foundation's logo. This Note concludes with a discussion of how the SCP Foundation situation might resolve and proposes a broad solution for how intellectual property should address the problems created by overlapping trademarks with permissively licensed works.

1. AN OVERVIEW OF INTELLECTUAL PROPERTY AND PERMISSIVE LICENSING

   Intellectual-property law has been developed and justified through many different theories. There are currently three main theories utilized to justify intellectual property law: personhood, natural rights, and utilitarianism. (23) The personhood theory argues that property rights embody a person's self-ownership. (24) "[T]angible and intangible items" are used to "define ourselves and obtain control over" our lives. (25) From this perspective, there are moral and ethical reasons to grant intellectual-property rights. (26) On the other hand, the natural-right theory argues that individuals are entitled to control over their own labor. (27) This theory advocates for individuals to own what they create. It is based in the philosophical theories of John Locke and Immanuel Kant. (28) Finally, the utilitarian theory argues that "[a]bsent certain guarantees, authors and inventors might not engage in producing intellectual property." (29) The utilitarian theory argues that intellectual-property rights incentivize the creation and distribution of a public good. It is the most common model of justification. (30) For example, the Intellectual Property Clause of the Constitution states that Congress has the authority "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (31) This statement embodies the utilitarian ideal of promoting the creation of the arts while limiting exclusive ownership. (32) However, the means employed to achieve the utilitarian balance vary depending on the type of intellectual property involved.

   The Duksin-SCP Foundation conflict implicates two major types of intellectual property law--copyright and trademark. Understanding how they are different will help clarify some of the issues found in the Duksin-SCP Foundation situation. Furthermore, overlapping intellectual-property rights appear to circumvent the delicate balance that intellectual-property law tries to create. (33) Many countries, including the United States, have not answered the question of whether different intellectual-property rights can be granted to the same work. (34) This lack of guidance can cause problems, especially when individuals disagree over the purpose of the intellectual property grant.

   1. Copyright v. Trademark

      1. Intellectual-Property Purposes

         The United States government protects works under copyright law that are "original works" and are "fixed in any tangible medium of expression." (35) A work receives protection under copyright law at the point of its creation and, unlike other intellectual property, it does not require registration. (36) It "endures" from its creation to seventy years after the author's death. (37) Copyright law protects literary works, pictures, and sound recordings, as well as derivative works and compilations. (38) However, a copyright for a derivative work extends only to protect the new material and does not provide a copyright owner rights to the preexisting material. (39) Nor does the fact that a derivative work may receive copyright protection provide the creator with the right to make a derivative work without the original copyright owner's permission. (40)

         The utilitarian goals of intellectual-property rights play out in copyright law differently than in patent and trademark law. Copyright law provides a longer period of exclusive ownership in exchange for granting greater benefits to the public. (41) The main benefit provided to the public is that after the copyright expires, it enters the public domain, and anyone can...