A Tale of (at Least) Two Authors: Focusing Copyright Law on Process Over Product
25 Pages Posted: 31 Jul 2009 Last revised: 5 Aug 2009
Date Written: July 31, 2009
U.S. copyright law accords its bundle of rights to the author of the work. But despite the centrality of this figure in the Copyright Act, the statute doesn’t define the term, and commentators have yet to agree on precisely what characteristics this creature should have. As history and scholarship show, an author can take on many different personas, she can be individual or corporate; she can be someone who creates deliberately or accidentally; and she can work separately or in collaboration with others. Far more attention has been paid to this individual’s creative output: works of authorship. Works of authorship are the creations to which rights attach, and so discovering the substance and boundaries of such works is often the first step in any copyright analysis. As a result, in U.S. copyright law, the author is defined more by what she creates, a copyrightable work, than by why she creates.
This result seems odd, because U.S. copyright law is typically explained as affording authors economic incentives to create so that the public benefits from the development of new works. An author will be reluctant to create and commercialize her work if a second-comer can simply copy that work and sell it so as to recoup her cost of copying, far more cheaply than the author herself, who must also recoup the cost of production. This explanation assumes, however, that authors create in response to economic incentives. While this may be true for some authors and for some forms of expression, it is unquestionably not true for others. Copyright law itself, however, remains fairly agnostic in this debate. Despite the varying interests and incentives that motivate authors to create, copyright law gives all authors exactly the same bundle of rights. Although the term of those rights differs depending on whether the author is corporate or individual, and although an employer can acquire rights in a work without having actually created the work (through the work-for-hire doctrine), both the individual and the corporate author hold the same rights to prevent certain unauthorized uses of the work. Copyright law makes no attempt to match the rights it grants to the needs of the party to whom it grants those rights, resulting in too much protection in some instances and not enough in others. It seems particularly unbalanced to engage in a multifactor, nuanced analysis of the defendant’s use and then to compare it to a monolithic right on the plaintiff’s side of the equation.
Copyright law might, therefore, better accomplish its goals if it took better account of the activities and interests of authors rather than focusing on the products of their creativity. Different types of authors engage in different modes of creation and therefore have different interests in controlling the results of their work. The goal of this Article is to consider whether copyright law would be improved by recognizing this perspective.
Keywords: copyright, authorship, creativity, originality
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