Summer 1996
Volume 22, Number 4

Johnson v. Calvert is an extraordinarily resonant case. It echoes King Solomon's famous judgment when confronted with two women who each claimed to be the mother of a child, and it also echoes Athene's judgment in The Eumenides when she rules that Orestes is not related to his mother Clytaemestra. It raises questions about our understanding of the relationship between nature and technology, and it challenges conventional assumptions about gender and reproduction--how exactly is a woman's role in reproduction different from a man's?--and about the nature of kinship. Moreover, like the famous Baby M case in New Jersey a few years earlier,2 it raises questions about whether recent developments in reproductive technology are leading to a new form of the commodification of human beings. As one jurist remarked, the case interrogates "our collective understanding of what it means to be human" (JC, p. 506). What principally interests me in this essay, however, is the significance of the court's resort to the model of intellectual property law to resolve the conflicting claims and the implicit equation of mothers and authors.

As I have discussed elsewhere, the modern representation of the author as the originator and proprietor of a special commodity, the work, was formed in England in the course of the eighteenth century in part through the blending of a Lockean discourse of property with the eighteenth-century discourse of original genius.3 What emerged by the early nineteenth century was the figure of the romantic author, the notion of the author as a creative man who by virtue of imposing the imprint of his unique personality on his original works makes them his own. This notion provides the paradigm and reference point for intellectual property law. Historically, copyright has been an expansive, imperial doctrine, forever conquering new territory in the name of the author. Very early in its history protection was extended from printed texts to engravings and to printed music. In the nineteenth century, in a decisive moment, protection was extended to photography. By today the flag of authorship has been raised over pictorial and graphic works of most kinds, including architectural plans and buildings, commercial advertisements, labels, and fabric designs; over sculptural works, including dolls, toys, and jewelry; and over all sorts of dramatic works, including pantomimes and choreographed dances. Sound recordings are protected, as are musical works; game and contest rules are copyrightable; and so are computer programs, which have been called "silicon epics" and which are regarded by the law as no less works of authorship than poems or novels. Characters such as Superman or Donald Duck are protected, too, even apart from the contexts in which they appear; and in some jurisdictions the public image or persona of an individual such as Groucho Marx or Vanna White is also a property that is protectable and that can be willed to one's heirs.4 Likewise, under patent law it is possible to establish property rights in biological materials such as cell lines--in a famous recent case the regents of the University of California established ownership in a cell line derived from a medical patient's spleen without his consent--5 or even in genetically engineered plants and animals such as Du Pont's transgenic OncoMouse, a laboratory mouse designed to develop cancer.6 There are, then, precedents for the extension of intellectual property rights to aspects of personhood and even to living materials; nonetheless, the California court's extension of the intellectual property paradigm to the determination of motherhood in Johnson v. Calvert represents a remarkable moment in the history of authorship.

2. See In the Matter of Baby M, a Pseudonym for an Actual Person, 537 A.2d 1227 (N.J. 1988)

3. See Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, Mass., 1993). See also Martha Woodmansee, The Author, Art, and the Market: Rereading the History of Aesthetics (New York, 1994).

4. On the extension of copyright, see Peter Jaszi, "Toward a Theory of Copyright: The Metamorphoses of 'Authorship,'" Duke Law Journal 1991 (Apr. 1991): 455-502. Section 102 of the U.S. Copyright Act of 1976 lists the current subject matter of copyright in general. See the discussion in Paul Goldstein, Copyright: Principles, Law, and Practice, 3 vols. (Boston, 1989), 1:57-226. Public images are protected under the right of publicity doctrine; see ibid., 2:601-7. The term silicon epics comes from Anthony L. Clapes, Patrick Lynch, and Mark R. Steinberg, "Silicon Epics and Binary Bards: Determining the Proper Scope of Copyright Protection for Computer Programs," UCLA Law Review 34 (JuneÜAug. 1987): 1493-1594.

5. See Moore v. Regents of the Univ. of Cal. , 793 P.2d 479 (Cal. 1990); cert. denied, 111 S.Ct. 1388 (1991)

6. For OncoMouse, see Donna J. Haraway, "Universal Donors in a Vampire Culture: It's All in the Family: Biological Kinship Categories in the Twentieth-Century United States," in Uncommon Ground: Toward Reinventing Nature , ed. William Cronon (New York, 1995), pp. 321-66. For a general discussion of the patentability of living organisms, see also Thomas Traian Moga, "Transgenic Animals as Intellectual Property (or the Patented Mouse That Roared)," Journal of the Patent and Trademark Office Society 76 (July 1994): 511-45

Mark Rose is professor of English at the University of California, Santa Barbara, a position to which he has returned after serving for some years as director of the University of California Humanities Research Institute. He is the author of many books on literary subjects including Shakespearean Design (1972) and Alien Encounters: Anatomy of Science Fiction (1981) and has also written widely on issues related to the history of copyright law. His most recent book is Authors and Owners: The Invention of Copyright (1993), which was nominated for a National Book Critics Circle Award.