From the Mouths of Babes: Protecting Child Authors from Themselves
West Virginia Law Review, Vol. 112, No. 2, pp. 431-467, 2010
38 Pages Posted: 17 Jun 2011
Date Written: 2010
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.
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
Suggested Citation: Suggested Citation