Can Copyright Law Protect People from Sexual Harassment?

Abstract

The scandals stemming from the serious allegations of sexual harassment or sexual assault by Harvey Weinstein, Roger Ailes, Les Moonves, Matt Lauer, Bill O’Reilly, Charlie Rose, Bryan Singer, Kevin Spacey, and many other prominent and powerful figures in the creative industries show the ineffectiveness of Title VII, which prohibits sexual harassment in the workplace, in protecting artists and others in the creative industries from sexual harassment. Among other deficiencies, Title VII does not protect independent contractors and limits recovery to, at most, $300,000 in compensatory and punitive damages. Since many people who work in the creative industries, including the top actors, do so as independent contractors, Title VII offers them no protection at all. Moreover, even for employees, Title VII’s cap on damages diminishes, to a virtual null, the law’s deterrence of powerful figures in the creative industries — some of whom earned $300,000 in less than a week. Not surprisingly, many of the accused harassers in Hollywood had no shortage of funds to pay “hush money” to their accusers, yet continued to sexually harass people for years. This Article proposes a new way to address sexual harassment in the creative industries: enact federal legislation that prohibits sexual harassment in the development of works of authorship that receive federal copyrights. The proposed legislation is modeled on Title IX’s prohibition of sex discrimination in educational institutions that receive federal funding — which carries, potentially, the ultimate penalty of loss of federal funding for educational institutions in violation. Similarly, the proposed legislation authorizes a court to order the forfeiture of copyright for any work that has the requisite nexus to the sexual harassment or retaliation, if the violation was willful or wanton. A court-appointed trustee will oversee the copyright in the best interests of the public and the innocent individuals who participated in the development of the underlying work.

Keywords: #metoo, copyright, sexual harassment, hostile work environment, employment law, entertainment industry, Hollywood, Weinstein, Moonves, Lauer, O'Reilly

JEL Classification: K30, K31, K39