Abandoning Copyright

73 Pages Posted: 3 Mar 2020 Last revised: 26 Mar 2020

See all articles by Aaron Perzanowski

Aaron Perzanowski

Case Western Reserve University School of Law

Dave Fagundes

University of Houston Law Center

Date Written: February 24, 2020

Abstract

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and the case law is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete private benefits, copyright abandonment is potentially costly for rights holders but broadly beneficial for society. Nonetheless, rights holders — ranging from lauded filmmakers and photographers to leading museums and everyday creators — make the counterintuitive choice to abandon valuable works. This Article analyzes two previously untapped resources to better understand copyright abandonment. First, we survey four decades U.S. Copyright Office records, demonstrating both the motivations for abandonment and the infrequency of the practice. Second, we examine every state and federal copyright abandonment case, a corpus of nearly 300 decisions. By distilling this body of law, this Article distinguishes abandonment from a set of related doctrines and reveals the major fault lines in judicial application of the abandonment standard. Finally, we highlight the potential of abandonment to further copyright’s constitutional aims by suggesting a series of reforms designed to better align copyright holder incentives with the public good.

Keywords: copyright, abandonment, public domain, property

Suggested Citation

Perzanowski, Aaron and Fagundes, Dave, Abandoning Copyright (February 24, 2020). William & Mary Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3543654 or http://dx.doi.org/10.2139/ssrn.3543654

Aaron Perzanowski (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

HOME PAGE: http://www.theendofownership.com

Dave Fagundes

University of Houston Law Center ( email )

4604 Calhoun Rd.
Houston, TX 77204
United States
713.743.1431 (Phone)
713.743.2238 (Fax)

HOME PAGE: http://www.law.uh.edu/faculty/main.asp?PID=5033

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