Abstract:
Copyright law's primary device for promoting progress is to bestow
rights on the authors of works. Rights vest automatically and last for a
very long time. Authors' choices to retain, license, or transfer those
rights fuel opportunities to communicate the works to their audiences.
The copyright system's mechanisms for determining who authored works
(and therefore automatically obtained copyright rights) should be both
accurate and reliable, since misidentifications will undermine the law's
working as intended.
This article examines authors' creation
of works and copyright law's handling of authorship disputes. Many works
result from creative collaboration. Although the copyright statute
incorporates mechanisms for allocating rights among multiple
contributors, judges appear to be uncomfortable with severally-authored
works. Accordingly, courts have adopted rules that minimize, reallocate,
or erase the creative contributions of inconvenient collaborators.
These well-settled rules are nonsense, neither well-reasoned nor
probative. They complicate and confuse our efforts to identify the
author and owner of copyright in a work, and exacerbate power
disparities in unbalanced creative ecosystems.
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