64 Pages Posted: 13 Apr 2007
From an economic perspective, giving copyright holders the right to control production of derivative works - works that transform their expression, such as the movie version of a novel - is unjustified, even harmful. Current scholarship either defends this entitlement as economically sensible or partially reconfigures it. This article assesses the dominant economic rationales for derivative control, and finds them weak at best. Unlike other copyright scholarship, this piece argues that since the right prevents production of attractive, diverse, cheaper new expression, and blocks the promise of re-mix culture, it should be eliminated. This change would also concentrate attention on the adaptation right's role as a proxy for other copyright concerns, primarily the risk of derivatives substituting for initial works. The article proposes re-configuring copyright law to unfetter transformative expression while safeguarding copyright's other entitlements. Finally, it concludes by suggesting that economic arguments cover more deeply held beliefs, based on personality theory or labor-desert conceptions, supporting control over adaptation.
Keywords: Copyright, Derivative Works, Intellectual Property, Incentives, Grey Album, Music, Re-Mix, Mash-up
Suggested Citation: Suggested Citation
Bambauer, Derek E., Faulty Math: The Economics of Legalizing the Grey Album. Alabama Law Review, Vol. 59, 2007; Wayne State University Law School Research Paper No. 07-18. Available at SSRN: https://ssrn.com/abstract=979833