Kernochan Center for Law, Media and the Arts
Formalities are back in fashion. Their acolytes fall into two camps, reflecting their different objectives. For formalities, which we shall define as conditions on the existence or enforcement of copyright, can divest authors of their rights, or instead enhance authors' exploitation of their works by alerting their audiences to the authors' claims. For one camp, formalities' confiscatory consequences, once perceived as barbaric, are to be celebrated. The more works from their authors' rights untimely ripped, cast into the public domain, or amputated in their enforcement, the better. Formalities can supply the cure for all copyright's ills, from over-inclusive subject matter, to over-strong rights and remedies, to over-long duration. Worried that copyright's low originality threshold embraces shopping lists and such? A notice requirement will flush out such unworthy scribblings. Scared of strike suits from obscure authors emerging from the woodwork to claim the latest hit song, blockbuster film, or bestselling novel as the fruit of their own inspiration? Locking the courthouse door to the unregistered, or precluding statutory damages, will keep them and their contingency-fee'd counsel back behind the wainscoting where they belong. Distressed that copyright's term just keeps going and going and going? Imposing a renewal obligation early and often will ensure that only those works whose proprietors truly "care" about them will get the full copyright term. That copyright-divesting or -disabling formalities tend in practice to penalize individual creators far more than corporate copyright owners does not dissuade the forces of formalities, for authorship has little purchase with these advocates of the formality-fed public domain.
Jane C. Ginsburg,
"With Untired Spirits and Formal Constancy": Berne Compatibility of Formal Declaratory Measures to Enhance Copyright Title-Searching,
Berkeley Tech. L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/693