The misinterpreted “Intellectual Property” clause of the U.S. Constitution (Art. I, §8, cl. 8) grants Congress the power to “promote the Progress of Science” by securing exclusive rights to Authors for their “Writings.” Its parallel clause states that exclusive rights should accrue to Inventors in the “useful Arts” for their “Discoveries.”

At first blush, authoring or reading novels would seem like a diffuse, unpractical way to promote “scientific” progress in agricultural commerce. But then, Upton Sinclair’s novel The Jungle (1906) itself spurred passage of the first Pure Food and Drug Act to regulate abysmal industrial meatpacking facilities.

Do novels promote the progress of science? Two California-based, agriculturally themed novels at bookends of the 20th century—Jack London’s The Valley of the Moon (1913) and Helena María Viramontes Under the Feet of Jesus (1995)—reveal the possibilities, with an opening detour to the planet Gethen, portrayed by Ursula K. Le Guin in The Left Hand of Darkness (1969).

Nature of the IP Clause

The IP clause confounds historians and legal experts and remains a puzzle, as Prof. Sean O’Connor explains at length in his thought-provoking law review article, “The Overlooked French Influence on the Intellectual Property Clause,” 82. U. Chi. L. Rev. 733 (2015). The IP clause does not mention these words—copyrights or patents—but those two bodies of statutory law find their mandate in this dual grant of congressional authority.

Nowadays, copyright law appears untethered from the founders’ expressed intent to promote the progress of science. Just the opposite transpired: it wholly embraces and preempts state law protection for “fine” art works of sculpture, painting and literature.

Copyright law’s relationship with scientific progress is even hostile—for copyright law simultaneously excludes protection for works that bear the classic hallmarks of scientific inquiry: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. §102(b).

So where is the polestar of “science” to be located in imaginative, novelistic endeavors? O’Connor offers an answer to this conundrum. In the Age of Enlightenment:

“Science” was a reflective enterprise in which the inquirer sought to understand the phenomenon through analysis, without seeking to change or manipulate it. One could “make a science of” anything, including human activity.

“Art” meant the manipulation of changeable aspects of the world.

Whereas science and the “useful” arts are philosophically subject to notions of quantifiable progress, the “fine arts”—based on prevailing taste and sentiment—could not be said to metaphysically “progress.” O’Connor notes that some “might prefer the work of the ancients; some might prefer the work of the moderns. Neither could be proved ‘better,’ and thus there could be no arrow of progress.”

Authors and Their Writings

With printing press technology in full swing, 18th century scientific academies and societies could now publish and more widely distribute the research work and findings of their proceedings; and, individually, that of their members.

Encyclopedias of knowledge came to the fore in the 1700s, compiling advancements in the arts and sciences, e.g., John Harris’ Lexicon Technicum: Or, An Universal English Dictionary of Arts and Sciences. Dictionaries of the “arts and sciences aspired to cover not only facts and theories of the physical and natural sciences but also explanations of crafts and trades (the “manual” or “mechanical” arts”).”[1]

Concurrently, the first English “realist” novel emerges in 1719. Daniel Defoe’s Robinson Crusoe is an “autobiographical” narrative about a shipwrecked mariner who teaches himself how to survive and even thrive as a sole castaway on a Caribbean island, later visited by cannibals. It is a utopian, self-sufficiency fantasy couched in a first-of-its-kind “novelistic realism.” It took in readers like a storm. Its plot and characters would be well known to drafters of the U.S. Constitution by the 1780s.

But what is a “novel” anyway? The Latin root for novel is “new.” A convenient online definition asserts that:

The novel originated in the early 18th century after the Italian word “novella,” which was used for stories in the medieval period. Its identity has evolved and it is now considered to mean a work of prose fiction over 50,000 words. Novels focus on character development more than plot. In any genre, it is the study of the human psyche.  (Emphasis added.)[2]

Even this overarching definition perhaps constrains a fluid “novel” art form—our default form of storytelling for over 300 years. In his 1920s lectures on “Aspects of the Novel,” E.M. Forster captures the more ambiguous breadth of a novel as “a fiction in prose—of a certain extent.”

Science Meets Fiction

Science fiction encompasses a literary genre in which, per Ursula Le Guin, the author “is supposed to take a trend or phenomenon of the here-and-now, purify and intensify it for dramatic effect, and extend it into the future.”[3]

Le Guin rejects a dogmatic, science fiction cabining of her novels, such as The Left Hand of Darkness. That work examines social life on a distant planet Gethen wherein “gender is not fixed, but serially mutable.” “Any individual, then, can be both a mother and father and can bear and sire children,” leading to the novel’s memorable line, “The king was pregnant.” Gethenians may well be the product of a planetary colonizing experiment gone awry.

We witness life on Gethen—known to outsiders as Winter, for its inhabitants live in an Ice Age—through the eyes of its Earth “first contact” envoy, Genly Ai. He is trying to persuade planet leaders to join a loose confederation of planetary systems for trade purposes. He possesses a single unchanging gender, an anomaly in a world where:

For most of their twenty-six-day month and cycle, Gethenians are androgynous and celibate, but for two or three days of kemmer they become sexually active as either male or female, with no say in which.

Through Genly Ai, “we witness the limits on worldview that his single unchanging gender imposes.”[4] Le Guin adds novelistic heft to his odyssey by basing descriptions of Gethen’s terrain and frigid atmosphere on the journals of Arctic and Antarctic explorers.

LeGuin believes her novel should be read as a “thought-experiment” regarding what a perfectly gender fluid world might be like:

The purpose of a thought-experiment, as the term used by [Erwin] Schrödinger and other physicists, is not to predict the future—indeed Schrödinger’s most famous thought experiment goes to show that the “future” on the quantum level, cannot be predicted—but to describe reality, the present world.[5]

By the end of a good novel, Le Guin suggests that we may find that “we’re a bit different from what we were before we read it, that we have been changed a little, as if by having met a new face, crossed a street we never crossed before. But it’s very hard to say just what we learned, how we were changed.”

No spoiler alerts here. Reading this novel did recast my mindset, somehow.

Searching for “The Valley of the Moon”

Back to the planet Earth and the state of California, circa the early 20th century. In Jack London’s novel, The Valley of the Moon (1913), we follow the life and times of Billy and Saxon Roberts, a working class couple who leave Oakland—after Billy’s release from jail for attacking “scabs” during a labor strike.

They “tramp” and camp through northern California on their quest to find a plot of land they can call their own. As Saxon puts it, “We’re not looking for gold but for chickens and a place to grow vegetables.” They desire an “All-Around Farm.”

Their mission is quixotic: “What we want is a valley of the moon, with not too much work, and all the fun we want. And we’ll just keep on looking until we find it.” This is a combined “California Dreamin’,” “Garden of Eden,” and “Promised Land” mythos, writ large.

Billy invokes Defoe’s novel as they seek idyllic self-reliance: “Here’s where we can play real Robinson Crusoe,” Billy cried [to Saxon], as they crossed the hard sand from the high-water mark to the edge of the water. “Come on Robinson. Let’s stop over. Of course, I’m your Man Friday, an’ what you say goes.”

Early in their travels, Billy laments how newer California immigrant cultures (Portuguese, Dalmatians, Japanese and Chinese and others) all seem to excel in more intensive farming practices than the “cut and run” tactics practiced by a first wave of California immigrants who would “skin the soil and move, skin the soil and move.”

Billy traffics freely in racial, xenophobic aspersions and stereotypes, but they often end up being back-handed tributes to the agricultural prowess of more recent immigrant farming practices. For example, he opines that Croatian immigrants “have a way with apples. It’s almost a gift.” “They know each tree, its whole history, everything that ever happened to it, its every idiosyncrasy. They have their fingers on its pulse. They can tell if it’s feeling as well today as it felt yesterday.”

Eventually, Billy and Saxon serendipitously run into Jack Hastings and his wife Clara. Hastings is a stand-in for Jack London himself. Clara paints a word portrait of Jack’s abiding interest in “scientific” farming:

He spends all of his time on the ranch in conserving the soil. There are over a thousand acres of woods alone, and, though he thins and forests like a surgeon, he won’t let a tree be chopped without his permission. He’s even planted a hundred thousand trees. He’s always draining and ditching to stop erosion and experimenting with pasture grasses. And every little while he buys some exhausted adjoining ranch and starts building up the soil.

Jack Hasting’s ranch is in the real Valley of the Moon (Sonoma Valley) near Glen Ellen, California. When Billy and Saxon reach this promised land, it envelops them in rapture. They descend to their future “all-around farm” alongside a “stream that sang under maples and alders.” The “air was aromatic with laurel” and “wild grapevines bridged the stream from tree to tree.”

The novel ends happily. Their flight from the dystopian city is a bucolic success. When Saxon informs Billy that she’s pregnant, a doe and a spotted fawn look “down upon them from a tiny open space between the trees.”

While Jack London’s hobby farming passions never panned out as a viable agribusiness enterprise, his former estate in the Valley of the Moon is now Jack London Historic State Park.

Citizenship Papers “Under the Feet of Jesus”

Fast forward to 1995, and you perceive the gritty, dusty reality of a Chicano migrant labor force at work in the grape fields and peach orchards of central California—through Helena Mara Viramontes first published novel, Under the Feet of Jesus. It is dedicated to the memory of César Chávez, co-founder of the National Farmworkers Association (later the United Farm Workers) along with Dolores Huerta.

In his book of essays entitled The Other California: The Great Central Valley in Life and Letters (1994 ed.), Gerald Haslem outlines Huerta’s advocacy for agricultural reform:

Dolores Huerta also speaks English, the language of power, and does it well. Of course, she speaks Spanish too. Raised in Stockton, she has become one of this state’s best known Chicanas, a public spokesperson for the United Farm Workers, its first vice president, and a realist. “Don’t be fooled,” she warns, “It is still extremely difficult for nonwhites to escape poverty in this state, which means in this Valley. The odds remain against us.”[6]

Huerta and Chavez would lead the Delano grape strike in 1965 and the Chicano Movement more generally.

Viramontes’ novel puts names and faces to the felt lives of piscadores (Spanish for “fruit or vegetable pickers”). We experience their food, shelter, health and economic precariousness primarily through the lens of Estrella, a young teenager, nicknamed Star. Under the Feet of Jesus is a Bildungsroman, a coming-of-age novel.

Orchards, creaky old barns, dreamy, but polluted irrigation ditches, eucalyptus trees all project novelistic realism. Char in a family cooking pit (used by previous inhabitants) smells of “toasted corn tortillas, of garlic and chile bubbling over the flames, of fried tripas spitting fat in a cast-iron skillet.”

The iconic Sun Maid raisin logo serves as an objective correlative symbol of the dissonance between toiling in the fields and California dreamin’:

Under the leafy grapevines, the grapes hung heavy. [Estrella] had readied the large rectangular sheet of newspaper print over an even bed of tractor levelled soil, then placed the wooden frame to hold the paper down. Now, her basket beneath the bushes, Estrella pulled the vine, slit the crescent moon knife across the stem, and the cluster of grapes was guided to the basket below.

Carrying the full basket to the paper was not like the picture on the red raisin boxes Estrella saw in the markets, not like the woman wearing a fluffy bonnet, holding out the grapes with her smiling, ruby lips, the sun a flat orange behind her. The sun was white and it made Estrella’s eyes sting like an onion, and the baskets of grapes resisted her muscles, pulling their magnetic weight back to the earth. The woman with the red bonnet did not know this.

An empty Quaker Oats container in a kitchen cabinet becomes an object of rebellious play. Estrella grabs “the chubby pink cheeks Quaker man, the red and white and blue cylinder package and shook it violently and its music was empty.”

Like a band majorette, she headlocks “the Quaker man’s paperboard head like a hollow drum . . . . One foot up, one foot down, her dress twirling like water loose in a drain, Estrella drummed the top of his low crown hat, slapped the round puffy man’s double chins, beat his wavy long hair the silky color of creamy hot oats.” This is Star’s mock retribution of Americana—for ignoring migrant worker poverty and injustice.

Estrella’s mom Petra keeps her children’s birth records and her marriage certificate in a manila envelope stored under the feet of a Jesucristo statue beside her bed. The latter proves she was married “in the town of Santa Ana, county of Orange, state of California.” Questions of citizenship lurk around the every corner and these papers need spiritual safeguarding.

The novel-concluding epiphany takes place in a decrepit, soon-to-be-demolished barn. As Estrella climbs a chain, hand-over-hand, to the barn’s loft, the intensity of the effort soaks “the back of her shirt collar with sweat.” “The stench of bird droppings gave the loft a sharp acid smell which cut through the damp hay and alfalfa and dusty nests.”

After Estrella shoves the barn’s trapdoor open, a “sparkle of stars cut the night—almost violently sharp.” She makes her way onto the roof. The “termite-softened shakes crunched beneath her bare feet like the serpent under the feet of Jesus, and a few pieces tumbled down and over the edge of the barn.” She ventures to the roof edge and “trusts the soles of her feet.” A breeze flutters “a few loose strands of hair on her face and nothing had ever seemed as pleasing to her as this.”

Novels and Scientific Falsification

While novels could readily be subsumed within an 18th-century “positivist” definition of science, they cannot withstand scrutiny under its 20th-century paradigm tests—verification and falsification.

Nevertheless, university literature courses espouse “theories” of critical analysis, as if they rested on some quasi-scientific basis. However much these theories may aid (or abet) textual analysis, they are necessarily scientific bunk. The premier literary critic of our age, George Steiner (who passed away in February 2020), spells out why such academic theorizing about literature cannot possibly claim scientific status:

Two indispensable criteria must be satisfied: verification or falsifiability by means of experiment and predictive application. There are in art and poetics no crucial experiments, no litmus-paper tests. There can be no verifiable or falsifiable deductions entailing predictive force. One must be crystal clear on this. * * *

However conventional, however imitative of its canonic forerunners, each and every literary text, each and every painting or sculpture, is a ‘singularity.’ It is a contingent phenomenality which could or could not have come into perceptible form. * * * [I]t is not a predictable fact determined by theoretical postulates or entailed by logic. [From Real Presences (1989).]

That novels are not scientific tracts is of no real moment. They do not need that highly refined status to achieve their ends. They continue to fascinate, delight, bore, provoke and compel us through their prose. Sometimes, they alter the social, political firmament. Through sheer accretion, they add to a body of knowledge and experience.

Like us, novels “beat on, boats against the current, borne back ceaselessly into the past.”[7]

[1] Sean M. O’Connor, The Overlooked French Influence on the Intellectual Property Clause, 82 U. Chi. L. Rev. 733, 746-77 (2015).

[2] See https://penandthepad.com/history-novel-6305937.html.

[3] Ursula K. LeGuin, Author’s Note to The Left Hand of Darkness.

[4] David Mitchell, Introduction to The Left Hand of Darkness.

[5] See n. 3, supra.

[6] From Gerald Haslem’s essay “Bronzing the Valley.”

[7] The final line from F. Scott Fitzgerald’s novel The Great Gatsby.

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Photo of Paul D. Swanson Paul D. Swanson

Paul Swanson’s track record speaks for itself: the World Trademark Review 1000 lists Paul as a top individual in the trademark practice, describing him as a “very smart IP litigator who brings decades of courtroom experience to the table.” He is the only…

Paul Swanson’s track record speaks for itself: the World Trademark Review 1000 lists Paul as a top individual in the trademark practice, describing him as a “very smart IP litigator who brings decades of courtroom experience to the table.” He is the only Washington attorney to be awarded Lexology’s 2017 Client Choice Award in the field of trademark law.

Paul’s food/intellectual property law practice provides astute counsel regarding the intellectual property foundations of your food-related business ventures. His guidance is especially vital for agribusiness clients with intellectual property rights in formerly unbranded fresh fruit and vegetable produce. As the industry has shown, the reputation and goodwill of agribusinesses and foodservice companies is bound up in the quality of their products and services and the brand recognition generated through the diligent efforts of company employees and their predecessors.

Having worked on cases that now authoritatively control legal outcomes in matters of agribusiness commerce, Paul has a deep understanding of the complex legal issues faced by his clients. He regularly speaks on and writes about intellectual property issues and is principal contributor to the firm’s “Earth and Table” Law Reporter blog, devoted to analyzing the interplay between intellectual property and food commerce.

Paul is a Former Chair of the Washington State Bar Association’s Intellectual Property Section. He also chaired a WSBA/IP trademark committee whose work significantly revised Washington trademark law, and is a member of the International Association of Culinary Professionals (IACP).

Paul served as a Board Member of the Neighborhood Farmers Market Alliance, a community-based, nonprofit organization that operates seven farmer/food-only markets in Seattle neighborhoods. His article regarding the history and legal status of organic and natural food labels entitled “We Are What We Eat” appears on the website of Gastronomica: The Journal of Food and Culture.