How to Write a Life: Some Thoughts on Fixation and the Copyright/Privacy Divide
William & Mary Law Review, Vol. 51, 2009
49 Pages Posted: 20 Nov 2009
Date Written: November 18, 2009
Many individuals have been surprised or troubled to find themselves the subject of biographies, plays, photographs, and Internet postings in which they did not actively participate, transformed from fairly anonymous individuals into widely known artistic subjects. Although these experiences are not new, the development of recording and photographic technology and the ability to distribute such recordings over the Internet to a worldwide audience have redrawn the boundary between public and private. Events that formerly would have receded into the darkness of the past are now captured on mobile phones and uploaded to YouTube. Search engines and web archives make it ever harder to distance oneself from these once forgettable and now cemented episodes of life. Commentators have chronicled the misfortunes of individuals who believed their actions were viewed by only a few in the direct vicinity but who became unwilling Internet sensations virtually overnight. Concerned by these developments, scholars have highlighted the privacy interests at stake, calling for reforms that would provide greater protection against unwanted publicity, even for acts in public places, a space in which privacy law traditionally provides little force. As illuminating as these discussions are, they often do not take into account a potential competing interest: the copyright held by the writer or photographer who has captured the subject’s life, an interest that arises at the moment of fixation -- the second that the story is committed to keyboard or the JPEG is stored in memory. Fixation -- the act of preserving something, even if only temporarily -- is necessary to obtain protection under U.S. copyright law, which requires that the copyrighted “work” be “fixed in a tangible medium of expression.” Because many works of creative expression are fixed in some form, the subject of fixation arises in relatively few cases -- typically in connection with computer technology, when the question is whether fixation in computer memory meets the statutory requirement. Fixation receives a bit more attention on the scholarly front, where commentators have highlighted how the requirement works to exclude artistic endeavors such as improvisational theater from the scope of copyright protection. On the whole, then, it would seem as if fixation is a relatively uncontroversial topic. Yet fixation is increasingly important in an information age. Under U.S. copyright law, fixation is what creates both an author and a commodifiable subject, neither of which exists as a legal entity in copyright law before the act of fixation occurs. It transforms the creative process (and its subject) from a contextual, dynamic entity into an acontextual, static one, rendering the subject archived, searchable, and subject to further appropriation. Even in contexts in which there is no competing claim as to control, fixation still works to bound the fruits of creative effort, engendering distance between the author and audience. Fixation thus causes a kind of death in creativity even as it births new legal rights. Once an “author” has fixed a certain version of her work, she has propertized its subject, subordinating the work to the various laws and tropes that come with a property-based regime such as copyright law: ownership, transformation, borrowing, and theft. Fixation is what allows the subject to be commercialized and analyzed; it is what marks the transformation to subject in the first place.
Keywords: authorship, copyright, fixation, right of publicity
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