Fifty Years of U.S. Copyright: Toward a Law of Authors' Rights?

Document Type

Article

Publication Date

2023

Abstract

In honor of the 50th Anniversary of the American Intellectual Property Law Association Quarterly Journal, this Article explores developments in U.S. copyright law within that timeline. Fifty years would take us to 1972, but the signal event in U.S. copyright law during that period is the 1976 Copyright Act, which took effect in 1978. I will examine how that law marks a watershed in U.S. copyright, shifting us toward a law of authors’ rights more consonant with the international standards of the Berne Convention on the Protection of Literary and Artistic Property. That said, U.S. copyright law and international norms still maintain an asymptotic relationship: U.S. law might approach a goal of authorial primacy, but its lack of moral rights and the persistence of vesting employers and certain commissioning parties with authorship status under the “works made for hire” doctrine ensure that the two lines of authority will never converge. At a more fundamental level, however, authors and authorship underpin the 1976 Act to a greater extent than its predecessors, starting with the statutory setting of creation as the point of attachment of federal copyright protection (rather than publication with proper notice of copyright). This Article will consider the respects in which the 1976 Act and its implementation, through to the recent interpretations of the Act to exclude non-human authorship, center copyright on creators. Part I addresses the relationship between creativity and formalities; Part II reviews copyright ownership; Part III examines the scope of protection of authors’ economic and moral rights; and Part IV addresses secondary authorship and the fair use defense. I conclude with some reflections on “authorless works” and why they cannot sustain copyrights under the 1976 Act.

Disciplines

Intellectual Property Law | Law

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