Monday, April 5, 2010
This Article subverts the myth of American copyright militancy by providing a more nuanced view of our enforcement regime. In the process, we detail how, in the age of mechanical (and digital) reproduction, procedural nicities establish cultural hierarchy through the selective restoration of Benjaminian ‘aura’ to creative works. As it turns out, the Emperor has been sold a suit of copyright that leaves a surprising number of authors naked - without sufficiently meaningful remedies for infringements of their creative output. Copyrighted works are effectively placed into a hierarchy of protection that, in many ways, safeguards creators less vigorously than regimes in other countries.
Unlike any of its intellectual property allies, the United States demands timely registration of a copyright in order for rights holders to qualify for the recovery of statutory damages and attorneys' fees. Through the use of this ostensibly neutral formality, the current system privileges the interests of repeat, sophisticated rights holders, often at the expense of smaller creators. Moreover, existing law practically encourages certain kinds of infringement. In the end, sophisticated players enjoy powerful remedies when enforcing their copyrights. They dangle the legal Sword of Damocles - draconian statutory damages - over the heads of accused infringers, threatening to hand defendants their heads on a platter with more fervor than Salomé’s dance (to licensed music, of course). By sharp contrast, when they function as users of intellectual property (something all creators do), these same players often face only the most paltry of penalties for unauthorized exploitation - even when they infringe willfully.
Our copyright regime therefore beatifies the works of elites - consecrating their cultural production as sacred texts and subjecting any use to permission and payment - while relegating the creative output of the rest of society to fodder for unauthorized manipulation and commercialization. The point of this analysis is not to call for even greater copyright protection for all creators. Rather, by drawing on a wide range of examples - from Hollywood screenplays to the formative blues riffs upon which rock music is built, paparazzi shots of Britney Spears to the iconic portrait of Che Guevara qua revolutionary, and congressional testimony from Scott Turow to publisher battles against university copy shops - this Article deconstructs the beneficiaries of the existing regime. In the end, we highlight the need for holistic reform that equalizes protection among different classes of authors and rights holders while also balancing the interests of copyright users.
Download the article from SSRN at the link.