A Tribute to Ralph S. Brown: Pioneer Scholar and Professorial Statesman

Article excerpt

I was fortunate to know Ralph in two different sectors of his long and remarkably active life: the American Association of University Professors and the law of copyright.

I first saw Ralph's name in 1962 when I took Professor Benjamin Kaplan's Harvard Law School course on Copyright. The coursebook was authored by Ralph and Ben, and had been published only two years before.(1) What a wonderful book it was--intellectually challenging, with carefully selected cases that were fun to read (Superman vanquishing Wonderman in the courtroom, a Lone Ranger impersonator enjoined against beating his horse in public), and authors' notes laced with history, literature, and the arts! I never fully realized the greatness of their accomplishment, for I learned only recently that theirs was the first coursebook in the subject. It brought copyright, and related fields of intellectual property law, into university legal education for the very first time. It must have been a mammoth undertaking for the two of them to confront, organize, and comment on a sea of disconnected statutes and cases, reaching as far back as early eighteenth-century England. Intellectual property scholars and teachers of my generation, and those who have come after, have simply taken for granted that this is what the field should look like.

Today, some forty years after the publication of Kaplan & Brown, many who learned from that book are teaching the course, and those whom we have taught in mm are teaching others who will teach and practice in the field. There are some twenty intellectual property casebooks, at least a dozen of which focus mostly or exclusively on copyright; there are several scholarly treatises in the field; and there are surely well over a hundred American law schools offering courses in the field. Most of these books and courses can trace their inspiration--and also their coverage, organization, and approach--back to the Brown and Kaplan book. Its seventh edition, on which Ralph actively worked with his coauthor Professor Robert Denicola, was just published this summer,(2) only two or three weeks after Ralph's passing. Ralph was also something of a pioneer in offering, some forty years ago, a course titled "Law and the Arts," a subject increasingly being taught in U.S. law schools.

Ralph's scholarly accomplishments and influence go well beyond the casebook. His first article on intellectual property was published in The Yale Law Journal in 1948(3) and dealt with trademarks and advertising. More than a generation before most everyone else, Ralph used an illuminating economic analysis of the law, and he produced a work that has been widely praised and still makes stimulating reading today. In his dozen or so significant articles on intellectual property since then, Ralph tackled complex issues of breadth and importance, and he wrote with erudition, wit, analytic rigor, a sense of the real world, and an elegant and highly readable writing style. He was also an innovator in developing the links between copyright and fields such as trademark, unfair competition, defamation, privacy, and publicity.(4) Laced through almost all of his writings, from the 1940s to the present, was his principled concern that the law not impose undue restraints upon fair copying, elaboration, and communication, lest society's pool of knowledge and culture be diminished. Ralph himself stated his philosophy in a short piece, aptly titled The Joys of Copyright:

   The perennial tensions between monopoly and competition, between
   restrictions and openness, also keep this field interesting. Copyright
   pulls toward a monopoly, albeit a perforated and narrow one. Unfair
   competition, when a Learned Hand holds the reins, is mindful of the
   competitive ideal. But other judges, and some legislatures, ride off on
   what I think to be wooly notions of unfairness, and on property rights that
   Congress has not created. They thus override the position that competition
   is copying--not only making something different, but making it, whatever it
   is, cheaper or better. …