Gorman, Robert A

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Yale Law School Legal Scholarship Repository

A Tribute to Ralph S. Brown:
Pioneer Scholar and Professorial Statesman
Robert A. Gorman'
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.'
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 turn 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,
f Kenneth W. Gemmill Professor of Law, University of Pennsylvania.
1. BENJAMIN KAPLAN & RALPH S. BROWN, JR., CASES ON COPYRIGHT, UNFAIR
COMPETITION, AND OTHER TOPICS BEARING ON THE PROTECTION OF LITERARY, MuSICAL, AND
ARTIsTIc WoRxs (1960).
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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,' 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' 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.5
Ralph's inclination toward "low protectionism" has been reflected in the
writing of younger scholars who today are concerned about too-
2. RALPH S. BROWN & ROBERT C. DENICOLA, CASES ON COPYRIGHT, UNFAIR
COMPETITION, AND RELATED ToPics BEARING ON THE PROTECTION OF LITERARY, MUSICAL,
AND ARTISTIC WORKs (7th ed. 1998).
3. Ralph S. Brown, Jr., Advertising and the Public Interest: Legal Protection of Trade
Symbols, 57 YALE L.J. 1165 (1948), reprinted in 108 YALE L.J. 1619 (1999).
4. See, e.g., Ralph S. Brown, Copyright and Its Upstart Cousins: Privac); Publicit, Unfair
Competition, 33 J. COPYRIGHT Soc'Y 301 (1986).
5. Ralph S. Brown, The Joys of Copyright, 30 J. COPYRIGHT SOc'Y 477, 480-81 (1983).
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Gorman
overreaching a copyright realm in an age of new technologies of vast
communicative and instructional potential.
As if the books and articles were not achievement enough, there are
uncountable intellectual property scholars, from thirty years old to seventy
years old, who have known Ralph's influence as a mentor. He seemed to
read everyone's work and actually took the time to write thoughtful notes-
friendly but forthright, and always positive and supportive. Of course, it
was often something of a task to decipher Ralph's letters; there has never
been agreement on whether it was more difficult to decode the notes written
in Ralph's compact and spiky handwriting or those that were typed on what
has been described to me as "the first typewriter ever built." In urging his
coauthor Professor Denicola to refer in his writings to the works of junior
scholars, Ralph added the injunction to "give them an adjective-precede
the citation with something like 'insightful,' 'innovative,' 'penetrating,'
etc." As to Ralph's influence, Professor Jessica Litman recalls that, when
she was a young, untenured teacher who had not yet published any article
on copyright, Ralph somehow tracked her down and sent her an article he
had just published in which he cited and respectfully treated a law review
note she had written as a student. She reflects on that experience, and on
Ralph's notes to her about her several articles over more than a decade:
For a teacher at the beginning of her career, that was an
extraordinarily meaningful gesture. (And I took it to heart. When I
have seen a student Note I admire, I've sent a note off to the
author.) ... Ralph always made it clear that he genuinely cared that
I wrote and that I wrote what I did. Much of what I've written is
better for that feedback. Ralph went out of his way to seek out and
build relationships with young scholars. The stories I've heard from
others lucky enough to have known him and been influenced by
him are much the same. Ralph was an extraordinary mentor for
young people in the field.... [He] cared about young scholars, and
invested a great deal of himself in helping them to find their voices.
He taught me that on the very rare occasions that someone does it
well, mentoring can be extraordinarily effective. I've tried to pass it
on.
So as to pass on Ralph's legacy as scholar and mentor, three forthcoming
major intellectual property conferences will be dedicated to him, as will the
resulting publications. These conferences, sponsored by the Association of
American Law Schools, span the years 1999 and 2000, and will be led by a
younger generation-and now the established generation-of scholars, all
of whom were touched by Ralph.
So far, I have described only one aspect of Ralph's multiple
achievements. The other sphere in which I know of his extraordinary
1999] 1467
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service is the AAUP. The Association, as most of you know, is dedicated to
the promotion and protection of the rights of university faculty members,
particularly through academic freedom and tenure-the ultimate goal being
to strengthen higher education institutions for the public good.
The length and distinction of Ralph's more than forty years of service
to the AAUP are surely unparalleled in the history of the Association.
Ralph was President of the AAUP from 1968 to 1970, when race relations
and the Vietnam War were causing great divisions both in the larger society
and within the Academy. (At the very same time, Ralph was addressing
similar problems while sitting as Associate Dean of the Yale Law School.).
Ralph's 1970 Presidential Address, characteristically, was notable for its
call for open-mindedness, civility and professional responsibility among the
professoriate in addressing the contentious issues of the day.
The period of Ralph's presidency was also a time of developing
concerns within the AAUP itself. Among other things, the Association was
beginning to consider the advent of collective bargaining for faculty in
higher education institutions and the vexing question of the AAUP's proper
attitude toward this development, with then unknown implications for the
governance of universities, professional norms of collegiality, and the very
structure and possible existence of the Association itself.
Both before and after his AAUP Presidency, Ralph chaired, and was a
long-term member of, the Association's most important policymaking
committees. As chair of one such committee, on College and University
Government, Ralph played the key role in drafting an AAUP document of
great importance and influence, among not only faculty but also university
administrators and boards of governors; it is known as the 1966 Statement
on Government of Colleges and Universities. And, soon after the AAUP
decided in the early 1970s, with great caution and ambivalence, to embrace
collective bargaining for university faculty, Ralph became the Chairman of
the Committee that formulated AAUP policy about unionization, as to
which there were many hotly disputed issues. Ralph's intellect, character,
skills, and eminence inspired the confidence and facilitated the
deliberations of a diverse collection of faculty types. To this day, I do not
know whether Ralph was particularly entranced by issues relating to
collective bargaining.6 But I do know that when Ralph was asked to chair
this important and politically charged committee, he was more than willing
to do so; there was a pressing need for his services, and he unhesitatingly
stepped forward when called. I sat as a junior member of that committee,
and I observed with wonder Ralph's capability, akin to alchemy, to distill
6. But see Ralph S. Brown, Jr., Collective Bargaining in Higher Education, 67 MICH. L. REV.
1067 (1969).
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wise and congenial solutions from discursive chaos; no one will ever be
better than Ralph in efficiently and productively chairing a committee.
With this crescendo of activities in the early 1970s, and after some
twenty years in leadership positions in the AAUP, including as President,
did Ralph cut back? No. At the age of sixty, in 1973, he embarked upon yet
twenty-five more years of tireless and central contributions to the
Association. Ralph, for example, served two terms (most recently at the age
of seventy-seven) as the Association's General Counsel-its principal legal
advisor on all matters from computer purchases, income tax returns, and
office-building leases to the drafting of briefs on major constitutional
issues.
Surely, Ralph's most significant AAUP service was on Committee A
on Academic Freedom and Tenure. In one capacity or other-as chair,
member, or consultant-Ralph served with that Committee initially in 1958
and then after his Presidency over an almost uninterrupted thirty-year
period from 1970 until just this past June. He has been that indispensable
Committee's indispensable pillar of work and wisdom. The qualities that
have made him so were well described more than twenty years ago by
another AAUP President and long-time colleague, Clark Byse of Harvard,
who said: "Ralph Brown has a first-rate, superior intelligence, an
overwhelming capacity for work, a willingness to take on difficult
assignments, a quickness of perception, a clear and lively literary mode of
oral and written expression, and an ability to reconcile apparently
irreconcilable views."'7
As part of his work for Committee A, Ralph's investigating committee
reports on academic freedom and tenure issues are of almost mythic stature.
He chaired or served on several small ad hoc committees assigned to visit
one or another campus at which the administration was accused as an
egregious violator of AAUP policies; on the basis of the resulting reports,
the Association decides whether to place the institution on the infamous
censure list. I can affirm that these can be very demanding assignments,
physically and emotionally. Ralph's investigative reports-three of them
undertaken in the past ten years-at large universities and small colleges,
compellingly and scrupulously provide the reader with memorable lessons
at both the institutional and human levels.
On all of the various task forces and committees that Ralph has led over
the years, and in his many published articles and speeches, Ralph's writings
have illuminated some of the more enduring and difficult issues of the
academy in the past quarter-century: financial exigency that leads to the
7. Clark Byse, Report of Committee A, 1975-1976,62 AAUP BULLETIN 169, 183 (1976).
8. See, e.g., Academic Freedom and Sexual Harassment, ACADEME, Sept.-Oct. 1994, at 64;
Ralph S. Brown, Jr., Financial Exigency, 62 AAUP BULLETIN 5 (1976); Ralph S. Brown &
1999] 1469
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retrenchment of tenured faculty, academic freedom and tenure for senior
faculty when mandatory retirement for age has been legally abolished, the
balance between the freedom to teach and the protection of students and
colleagues from sexual harassment, and the values and the very real hazards
of so-called post-tenure review. Although so many of us think of Ralph as
preeminently a scholar in the field of intellectual property, he has also been
crucially influential in developing the scholarly field of legal and
professional issues in higher education.
How fitting it is that the AAUP has recently decided to create an award
named for Ralph Brown, to honor academic leaders with exceptional
accomplishments in implementing sound principles of academic
governance. It will become one of the most significant and prestigious
awards that the Association bestows.
This long litany of achievements cannot begin to convey the depth of
admiration and affection felt by each and every AAUPer who has had the
memorable pleasure to work with Ralph, and to deliberate, exchange ideas,
stroll (usually very briskly), museum-hop, eat, drink, and swap tales with
him. We all remember walking into a committee room and immediately
finding our eyes drawn to the lean figure with the ruddy complexion,
bowtie, and debonair attire, and that enviably full head of startling white
hair, the animated engagement of hands and body, and what Ben Kaplan
has called "the impetuosity of speech." 9 He was a person of incomparable
integrity, wit, charm, decency, energy, and warmth. The present issue of
Academe, the AAUP journal, has a number of brief tributes to Ralph from
several of us who served with him through the years;' the deeply felt
reminiscences capture Ralph so well, and I urge you to read them.
To come full circle, I would like to recall the words of Ben Kaplan,
Ralph's copyright partner and my own mentor, who wrote on the occasion
of Ralph's alleged "retirement" from the Yale faculty some fifteen years
ago:
He can be prodigiously efficient: A general manager of, say, the
Polaroid Company, was lost when Ralph turned to law. The law
school has known and drawn upon his administrative talents. He
actually likes to be loaded down with work, and volunteers for
sweaty assignments while colleagues prudently look the other way.
He strives to keep things moving; hence, he tries constantly to
promote consensus in order to overcome impasse or
inertia .... Amidst warring factions, he is a fecund inventor of
formulae for peace.
Jordan E. Kurland, Academic Tenure and Academic Freedom, 53 LAWv & CONTEMP. PROBS. 325
(1990).
9. Benjamin Kaplan, The Copyright Connection, 93 YALE L.J. 1189, 1191 (1984).
10. See Remembrances of Ralph S. Brown, 1913-98, ACADEME, Sept.-Oct. 1998, at 10.
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This enthusiastic, generous, friendly, witty man of superior
intelligence and high cultivation is not an inhabitant of the
Egosphere, in which so many law teachers take up residence. If (as
I firmly believe) a certain abnegation of self, a certain rejection of
enviousness, is the condition of entry into the kingdom of heaven,
then Ralph has an excellent chance of final ascension. This,
however, should be long delayed.... He remains a youth.'
Ralph's ascension into the kingdom of heaven was indeed delayed, but
not at all long enough. Until the end, he did remain a youth-and he will
continue to inspire so many of us to emulate his rare qualities of mind,
temperament, character, and devotion to the public good.
II. Kaplan, supra note 9, at 1190-91.
1999] 1471



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

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

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