Borrowed Fiction and the Rightful Copyright Position

52 Pages Posted: 4 Oct 2014

See all articles by Viva Moffat

Viva Moffat

University of Denver Sturm College of Law

Date Written: September 13, 2014

Abstract

Works of “borrowed fiction” — unauthorized sequels or retellings of literary works — have long prompted legal, cultural, and social backlash. With respect to copyright disputes, this is because borrowed fiction entails a range of legitimate but conflicting interests. Copyright law has historically elevated the interests of the “original” author over those of other writers and the reading public. Scholars have offered a range of proposals to counter this tendency, but these reforms have focused on the infringement analysis and the fair use doctrine. Each of those, however, involves a binary decision, one that is not amenable to accommodating the conflicting interests at stake. This Article proposes that a better accommodation between and among these interests can be achieved at the remedial stage. By taking seriously both the “rightful position” notion in remedies law and the Supreme Court’s admonition against presumptive injunctive relief, courts can reach a more nuanced result in borrowed fiction cases. Under this approach, the full panoply of remedies would remain available, but rarely would anything more than compensatory damages be necessary to put the plaintiff in her rightful copyright position.

Suggested Citation

Moffat, Viva, Borrowed Fiction and the Rightful Copyright Position (September 13, 2014). Cardozo Arts & Entertainment Law Journal, Vol. 32, 389, 2014; U Denver Legal Studies Research Paper No. 14-56. Available at SSRN: https://ssrn.com/abstract=2504808

Viva Moffat (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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