From the Mouths of Babes: Protecting Child Authors from Themselves

Abstract

Akiane Kramarik painted some of her earliest commercial works by age seven. She now paints eight to twenty paintings a year, which sell for anywhere from $50,000 to $1,000,000 apiece. In addition, she has written and published two books of poetry. Her teenage brothers operate a website dedicated to Akiane and her works, on which consumers can purchase her books and artwork. The website bears a copyright notice, but her brothers do not have a copyright registration in the website. Like Akiane and her brothers, thousands upon thousands of, "underage authors," are exposing their copyrighted works online. But what rights, exactly, are they securing for themselves? In theory, the Copyright Act could protect against the misappropriation of a young author's rights, but only if that author thinks to register his or her work. The minor author is often all too willing to expose the work to infringement by publishing or even creating the copyrightable work online, inviting right-click instantaneous copying. Distribution of copyrighted works can occur before the author has even realized that a work has been created, thanks to social networking sites that target teens, and tweens as young as age six.

In addition, social networking sites have complex user agreements and terms of use that could confuse someone who is thirty-eight, much less eight. These terms, which many users never acknowledge or see, purport to be contractual agreements that bind the user regardless of that user's age. Or do they? The contractual doctrine of infancy may be raised as a defense against an adult plaintiff. But the infancy doctrine may not be used as a sword, allowing minors to pick and choose the contracts they would disaffirm. Online contracts may present an instance where the doctrine of infancy should be expanded so that minor authors who post materials on a web site can protect the rights in those works from unwitting dilution. In the case of A.V. v. iParadigms, involving the popular plagiarism-checking software Turnitin, the author was an older infant, bound by terms and conditions of a web site to which he was forced to publish as part of a high school class in order to receive a passing grade.

This article begins by examining the practical ability or inability of the, "infant author," to achieve and exploit the full rights of copyright, given that the Copyright Office itself seems to recognize that any rights given to infant authors are tempered by contract laws. Section II reviews the contractual doctrine of infancy and its effect upon a child author's protection under copyright law. Section III examines the specific problem of minors contracting regarding their copyrights, especially online contracts. Section IV explores the issue as currently framed, reviewing potential solutions already suggested and noting their inherent problems. Section V examines the recent decision in A.V. v. iParadigms, noting potential flaws in the court's rationale. Section VI explores some of these problems, including constitutional rights that support the creative process but which may be limited in a child's setting, and suggests a measure that Congress could take to ensure that these rights are born with the child's work and mature as quickly as rights for a work authored by an adult.

Keywords: copyright, intellectual property, infancy doctrine, infancy defense, contracting minors, online contracts, underage authors, infant authors, child authors, underage artists, infant artists, child artists, misappropriation

JEL Classification: K12, K30