Copyright and the 1%

71 Pages Posted: 18 Mar 2019 Last revised: 26 May 2020

Date Written: February 19, 2019

Abstract

No one ever argues for copyright on the grounds that superstar artists and authors need more money, but what if that is all, or mostly all, that copyright does? This article presents newly available data on the distribution of players across the PC videogame market. This data reveals an L-shaped distribution of demand. A relative handful of games are extremely popular. The vast majority are not. In the face of an L curve, copyright overpays superstars, but does very little for the average author and for works at the margins of profitability. This makes copyright difficult to justify on either efficiency or fairness grounds. To remedy this, I propose two approaches. First, we should incorporate cost recoupment into the fourth fair use factor. Once a work has recouped its costs, any further use, whether for follow-on creativity or mere duplication, would be fair and non-infringing. Through such an interpretation of fair use, copyright would ensure every socially valuable work a reasonable opportunity to recoup its costs without lavishing socially costly excess incentives on the most popular. Second and alternatively, Congress can make copyright short, narrow, and relatively ineffective at preventing unauthorized copying. If we refuse to use fair use or other doctrines to tailor copyright’s protection on a work-by-work basis and insist that copyright provide generally uniform protection, then efficiency and fairness both require that that uniform protection be far shorter, much narrower, and generally less effective than it presently is.

Keywords: copyright, incentives-access, marginal incentives, excess incentives

JEL Classification: D01, D04, D42, D60, K19

Suggested Citation

Lunney, Glynn S., Copyright and the 1% (February 19, 2019). Stanford Technology Law Review, Vol. 23, Iss. 1, 2020, Texas A&M University School of Law Legal Studies Research Paper No. 19-51, Available at SSRN: https://ssrn.com/abstract=3338060 or http://dx.doi.org/10.2139/ssrn.3338060

Glynn S. Lunney (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States
504-865-5987 (Phone)

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