58 Pages Posted: 29 May 2011 Last revised: 24 Jan 2012
Date Written: May 20, 2011
“I’m a writer not a biter, for myself and others.
I say a B.I.G. verse, I’m only biggin’ up my brother.”
- Jay Z
Copyright law in the United States may be at one of its periodic inflection points. In the past, major technological change and major shifts in the way that copyrightable works were used have led to major changes in the law, from the invention of the printing press prompting the first codification of copyright, to the popularity of the player piano contributing to a reevaluation of how musical works should be protected, to the dawn of the computer age leading to an explicit expansion of copyrightable subject matter to include computer programs (to name but a few examples). Today, owners of copyright face a world where digital technology has made it easy and cheap to reproduce, adapt, distribute, display or perform the works of another. Equally important, a generation of users has grown up expecting to be able to freely usurp the traditional exclusive rights of the copyright owner. If the declining sales and audiences in the music, newspaper and broadcast television industries tell us anything, it is that old legal paradigms regarding copying, and the business models built around them, are in jeopardy.
With what do we replace the old approach to copying? The short answer is: something less like a rigid, blanket ban on copying of expression and something more like a flexible approach that distinguishes acceptable, or even laudable, imitation of another’s expression from undesirable copying. Scholars have explored norms-based alternatives to intellectual property law in policing copying in various creative and innovative communities, such as chefs, comedians, research scientists, jambands, and magicians. The community of hip-hop artists employs a norms-based approach to imitation as well. The types of copying, and the consequences of each type, are varied and nuanced. The cultural consequences of imitating in the “wrong” way are such that the formal legal consequences of copying are irrelevant within the community. Even though hip-hop music has become popular music and popular music is largely owned commercially and protected with copyright law, instances of one hip-hop artist (not record company) suing another over copying are exceedingly rare. This paper will explore the lessons that the Copyright Act can learn from Jay-Z and his brethren.
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