8.SE.1.1

All of intellectual property law is an act of imagination. If a tree falls in a forest and no one is around to call it “property,” the tree still exists. But the objects of intellectual property have no existence apart from what we give them. You can’t copyright an unwritten novel; you have no trademark rights in a word the consuming public has never heard of. We must imagine these things into being before we can make them the subject of legal rights and obligations. Nor is the work of imagination done at the moment of creation. We must constantly play a game of practical metaphysics to grant legal rights over things that can’t be seen or touched. When the legal system says that this assembly of gears and levers infringes on that set of marks on a piece of paper, it’s calling an abstraction into being. The “invention” that connects the two is itself a creation of the legal mind no less than the arrangement of parts is a creation of the engineering mind. Lawyers must decide whether a given abstraction is an invention at all (most of us would agree that a short  story isn’t one); whether it has attributes like “new,” “useful,” “obvious,” and so on; and what exactly its limits are. None of these distinctions come ready-made in nature; they require continuous, purposeful, collective imagination. Like Tinkerbell, intellectual property really would vanish if we stopped believing in our ability to see it. And if we must imagine intellectual property law, it must also imagine us. Every body of law has an internal logic to it, a logic drawn from and reflected in the social relationships it imagines among the people subject to it. Thus, for example, Carol Rose observes that property law validates exclusionary self-interest while also presuming that people are generally inclined to respect each other’s claims to property; it therefore imagines a “morality. . . not presum[ing] saintliness, but. . . not made for total
 * Associate Professor of Law, New York Law School. Aislinn Bl