The Free Exercise of Copyright Behind Bars

63 Pages Posted: 28 Oct 2022 Last revised: 28 Jul 2023

See all articles by Viva Moffat

Viva Moffat

University of Denver Sturm College of Law

Date Written: August 10, 2022

Abstract

Incarcerated people produce vast amounts of creative and expressive work – from paintings and sculptures to essays, novels, music, and NFTs – but they are rarely described as artists and their work is often not described as 'art'. Incarcerated people also do not regularly take advantage of copyright law, the primary form of protection for creative works, but they should. Copyright provides a strong set of rights that combines strains of free expression values with property rights elements. Copyright confers dignitary and expressive benefits, and for some creators, financial rewards. As such, copyright can be a tool to help incarcerated people improve their lives, both while they are in prison, and after they are released. In the prison context, at least, copyright should be thought of as akin to a civil right and, understood in this way, it can be a part of the movement to reform the U.S. carceral system, empowering those who create. Moreover, because copyright is a right in intangibles, there is no reason that incarcerated people cannot or should not advance and vindicate their copyright interests just as they would if they were not in prison. In other words, copyright behind bars should not operate any differently than copyright in the free world. This article first describes the enormous range of artistic work created by incarcerated people, as well as the prison system’s regular attempts to deter and suppress such work. The article then explains both how copyright law protects virtually all of those works, and why copyright is valuable to incarcerated people and should become part of the carceral reform project. Finally, the article argues that there are no good reasons for limiting or impinging on the exercise of copyright by those who are in prison, or on their ability to create, disseminate, and profit from their expressive and artistic works, just as people in the free world do.

Keywords: Copyright, Prison law, Carceral reform, Intellectual Property

JEL Classification: K11

Suggested Citation

Moffat, Viva, The Free Exercise of Copyright Behind Bars (August 10, 2022). Washington and Lee Law Review, Forthcoming, U Denver Legal Studies Research Paper No. 22-11, Available at SSRN: https://ssrn.com/abstract=4260631

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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