Authors' Copyright (?)

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Book Chapter

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This chapter takes inspiration from Professor Rochelle Dreyfuss’ important early article on United States’ copyright’s works made for hire doctrine, The Creative Employee and the Copyright Act of 1976. Bucking the tide of law and economics analyses of intellectual property rights, Dreyfuss contended that ‘attention to nonpecuniary, author-based interests is necessary in order to take full advantage of the talents of the creative and to, in the words of the Constitution, “promote the Progress of Science and useful Arts”.’ She demonstrated that even when authors have little economic stake in the control of their creative outputs, ‘vesting the creative with copyright ownership produces non-pecuniary benefits both to the creative and to the public.’ Indeed, ‘[s]evering financial considerations from other creative concerns harms not only the interests of authors in the integrity of their work and in their reputation, but those of the public in high-quality, accessible, creative material.’

Professional authors reinforce Dreyfuss’ insights. Pulitzer Prize-winning playwright Doug Wright explained that he makes money from writing screenplays (over which he will have no creative control),

But if I have a truly original idea, one I’ve dredged up from my soul, I’m saving it for the stage. I have to protect my heart. … [C]opyright guarantees us only one thing, one ephemeral, fleeting, but indispensable thing: our singularity as artists. … Because of copyright, I get to be the CEO of my own imagination. When I create a work, copyright acknowledges that it belongs to me as fully as a newborn belongs to its mother. And just like a parent, I am granted responsibility for its future. … Copyright acknowledges that fearless act of creation and self-disclosure, and gives it worth. It says, ‘This play is the result of one man’s wish to forge a universal human truth from his own hardship, his own pain, and bequeath it to us in a meaningful and generous way. For the health of the culture, we must honor that gesture. We must give it value.’ … [C]opyright keeps our art, the theater … alive. For playwrights like me, copyright doesn’t provide incentives; it is the incentive.

Dreyfuss and Wright concur that vesting copyright in authors favors creativity because authors care not only about making a living, but also, and especially, about controlling how their works are disclosed and exploited. We ignore authors’ non-pecuniary interests at the peril of our culture. This chapter builds on their exploration of authors’ copyright, but extends the inquiry to economic as well as non-pecuniary rights.


Intellectual Property Law | Law

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