Maybe the term “blood-soaked” is a bit too harsh and inappropriate for a neutral discussion about a few high-profile copyright and patent infringement cases in history. Nonetheless, if not blood-stained, these were fierce intellectual battles between contenders who fought for a different kind of victory: the right to be called, officially, the first.
If we’re starting with more straightforward cases (though so many of these disputes are rarely straightforward), you would think we’d naturally lean towards literary copyright infringement. To a layman who hasn’t been scarred by the nitty-gritty details of such courtroom battles, it seems pretty simple. If we’ve written something, and we see traces of our work appearing verbatim under someone else’s name to be used for commercial purposes, we’d first throw a hissy fit and, after a moment’s clarity, point out any evidence we have to prove that the work was originally ours, highlighting word-for-word similarities by the plagiariser, all somewhat easily traceable on record.
But then, we venture into more complicated territory, where we hear of authors being sued for allegedly stealing facts about experiences in real people’s lives and using these intangible traces in their written works. We read about famous disputes, where one party is finally credited as the original owner of a specific invention, computer application, blueprint, design, or some form of intellectual property only after a gruelling and costly legal battle.
Nikola Tesla, for instance, in 1943, was finally acknowledged by the United States Supreme Court as the first and true inventor of was called the “wireless”, or by modern terms, the radio. This recognition was awarded four months after his death, and 50 years after he first filed a radio patent from the United States Patent and Trademark Office. The patent was issued to Tesla in 1900, the same year that Guglielmo Marconi also applied for a radio patent. Given that two radio patents had already been awarded to Tesla by May of that year, Marconi’s patent was initially rejected, quite notably by the patent examiner himself who expressed disbelief of Marconi’s denial of having previously read any of Tesla’s research before filing the patent.
In what must have been a torturous year for Tesla, the patent office made a surprise move and issued a patent to Marconi in 1904, titled “Apparatus for Wireless Telegraphy”, branding Marconi as the inventor of the radio. Financially strained and unable to fight these depressing circumstances, Tesla resorted to silence and had to watch the acclaim and commercial success surrounding the invention of the radio go to another. Whether Marconi had based his own discoveries about the wireless transmission of signals on Tesla’s early work or had surreptitiously come to the same conclusions about these systems at the same time as did Tesla, the “Great Radio Controversy”, alongside other patent disputes like that involving Alexander Graham Bell and Elisha Gray about the invention of the telephone, are a testament to the volatile intellectual property landscape in 19th century America.
There are numerous other cases, the outcomes of which pose difficult questions about the extent to which the originality of ideas should be credited to their owners before the whole exercise becomes perfunctory, even damaging, to creativity and innovation.
Malcom Gladwell heartily explored this exact premise in his 2004 article, “Something Borrowed”, for the New Yorker. Gladwell meticulously widens the grey area between copying ideas and creatively building off someone else’s work to produce something new. Who really did it first? he asks. Or better yet, is it really fair to claim the status of being the sole inventor of an idea, which itself may have been subconsciously gleaned off someone or something else? Gladwell even expresses a hint of regret at the backlash of litigation and negative media attention directed at British playwright Bryony Lavery, after she had supposedly taken facts, details, and even lines of dialogue from psychiatrist Dorothy Lewis’s 1998 memoirs and from Gladwell’s 1997 profile on Lewis for the New Yorker, using them in her Broadway play, Frozen.
As Gladwell notes, Lavery wasn’t claiming that she was the first to think of the concepts and material lifted from his or Lewis’ works like many believed she did; rather, she drew inspiration from their works to produce an entirely fictitious plot for a play, and didn’t do enough to remove their resemblance to the original sources.
The story bears similar grey-area undertones to another literary controversy in 2007, in which plaintiffs Michael Baigent and Richard Leigh unsuccessfully sued The Da Vinci Code author Dan Brown for “non-literal” copyright infringement of their 1982 non-fiction book, The Holy Blood and The Holy Grail. Their book focused on a secret sect that was formed to protect the bloodline of Christ that was said to have merged with the French Merovingian dynasty. While Brown hadn’t plagiarised any actual text from their work, the authors contended that he had lifted from their book the sequence in which the facts were assembled regarding how the bloodlines merged. Not surprisingly, the court ruled in favour of Brown with a judgment that somewhat mirrors Gladwell’s sentiment: that no one person has a sole claim to historical facts and concepts, although the presentation of those facts and how they are adapted are a different matter.
Perhaps a new appreciation for pioneers should be expressed. Not only does it take a substantial amount of foresight, effort and acumen to be the first to do or discover something; the final and equally challenging step of the journey is how well you land in the public’s collective consciousness, acknowledged either as “the first”, “the one who fought with the first”, or somewhere in between.
This article was first published in the print edition of Esquire Malaysia, January/February 2017.