Performance Anxiety: Copyright Embodied and Disembodied

Rebecca Tushnet

Georgetown University Law Center


Journal of the Copyright Society of the U.S.A., Vol. 60, pp. 209-248, 2013
Georgetown Public Law Research Paper No. 13-040

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance — both as protected work and as right — is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

One key problem of performance from copyright’s perspective is how to identify the creative elements that make a work of performance original and protectable, as distinguished from elements that make it a work (a fixed artifact). A major variant of this question involves authorship: who is sufficiently responsible for a work of performance to be deemed its author, and thus its default owner? In a world where works require dozens and even hundreds of people to complete them, this question will often be difficult to answer while both respecting creativity and recognizing economic imperatives. Another set of questions involves whether there are ways to recognize performers’ creative contributions without contributing to copyright’s bloat, and how to assess claims of infringement in a performance context when the alleged copying isn’t exact. This article addresses these puzzles of performance, arguing that manageability rather than creativity is generally the basis for the rights allocations and distinctions copyright law makes. The recent controversy over the film Innocence of Muslims, along with other instances in which subjects of audiovisual works claimed copyright in those works, demonstrate the limited role played by creativity in copyright law.

Number of Pages in PDF File: 41

Keywords: copyright, performance, authorship

JEL Classification: K00, K30, K39

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Date posted: May 14, 2013 ; Last revised: October 28, 2013

Suggested Citation

Tushnet, Rebecca, Performance Anxiety: Copyright Embodied and Disembodied (2013). Journal of the Copyright Society of the U.S.A., Vol. 60, pp. 209-248, 2013; Georgetown Public Law Research Paper No. 13-040. Available at SSRN: http://ssrn.com/abstract=2264277

Contact Information

Rebecca Tushnet (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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