ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, March 20, 2014

Copyright and Contract Again


Because I teach both these courses I am intrigued by their connection.  Copyright, when granted, (which these days is for nearly anything) is essentially a contract between the author and the public with the government acting as the agent of the public. The consideration for the author is defined by duration and breadth of exclusivity. The consideration for the public is the creation of a "work" that will be available on a limited bases for the life of the author plus 70 years and then available without limit after that. If there were no transaction costs at all,  it would be possible to "pay" authors different amounts of exclusivity. Perhaps a greeting card would get one holiday season if anything. Works that are not minimally original draw no consideration. And in some cases, an author -- say one writing a book that will be a guaranteed best seller -- should be charged to have the work copyrighted. 

My sense is that some authors are paid way too much and almost none are paid too little. Has anyone ever heard of an author who turned down the bargain because it is life plus 70 instead of life plus 80? Perhaps more important,  many works would be provided gratuitiously. They require no consideration but the authors recieve it anyway.

Take the makers of the Cajun in Your Pocket. It's a little plastic device that has 6 buttons and it play six Cajun sayings like the classic, "you gotta suck da head off den der crawfish" which then showed up  in that well-know rap tune "Shake ya Ass."  This all resulted in a case that eventually was appealed. Do you think the makers of the Cajun in Your Pocket actually were motivated by the sense they had monopolized  "you gotta suck da head off den der crawfish"? I doubt it. 

When you think about copyright as contract, you realize how ineffective your agent is.

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