Prof. Jane C. Ginsburg, Columbia University School of Law
February 17, 2015
When our nation’s Founders were heading to the Continental Congress, Abigail Adams entreated husband John to “remember the Ladies.” We know what became of that plea. So, as the prospect of “the next great copyright act” sparks Copyright Office and PTO studies, congressional hearings, and interest-group advocacy, a sentiment of hopeful skepticism underlies my exhortation to “remember the authors.” The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. That right, as enacted in our copyright laws, however, has long fallen short of ensuring that authors enjoy the fruits of their intellectual labors, or even receive credit for creating them. My wish-list for copyright reform therefore puts two hopes at the head of the agenda. First, all authors (including “employees for hire”) should enjoy enforceable rights of attribution. Second, and for the United States more radically, the copyright law should limit the scope of authors’ grants in order to ensure that authors are fairly remunerated. In this column I will address the first aspiration; a later column will detail the second.
The Right To Be Recognized as a Work’s Author
An author’s interest in being identified with her work is fundamental, whatever one’s conception of the philosophical or policy basis for copyright. That is, whether one sees copyright as a natural right conferring on the author the ownership of the fruits of her labor, or as an economic incentive scheme to promote the production of works of authorship, or as a public works program designed to fill the public domain (or, most accurately, as a combination of the three), giving credit where it is due is fully compatible with both the author-regarding and the public-regarding aspects of these goals, as well as intuitively just. As one federal court judge explained:
Reputation is critical to a person who follows a vocation dependent on commissions from a variety of clients. Success breeds success, but only if the first success is known to potential clients. To deprive a person of a credit to which he was justly entitled is to do him a great wrong. Not only does he lose the general benefit of being associated with a successful production; he loses the chance of using that work to sell his abilities.1
Yet, unlike most of the world’s other copyright laws, U.S. copyright law has not included a general right to be recognized as the author of one’s intellectual creations. (The federal court judge just quoted sits on the Australian Federal Court, not on any U.S. bench.)
Saying U.S. authors should enjoy attribution rights is one thing; articulating the scope of those rights is another. I would urge Congress and the Copyright Office (to the extent that it might devise attribution requirements as part of its rules respecting registration), to consider the following:
The right’s beneficiaries should be the human (not juridical) authors and performers, regardless of their employment status. Unlike the Visual Artists Rights Act (VARA) (the only current statutory provision for limited rights of attribution for an extremely limited class of authors), an attribution rights enactment should not exclude from its ambit creators of works made for hire. Nor should the law disqualify categories of works: all works of authorship, and all musical, dramatic, choreographic, or audiovisual performances should be covered. Similarly, the number of a work’s authors or performers should not of itself disqualify these participants from the right to claim authorship. Although a multiplicity of authors or performers might prompt fears that enforcement of an attribution right will be too unwieldy, the implementation problems are better addressed through an infringement standard that incorporates a reasonableness criterion, as well as through carefully devised waiver provisions.
2. Scope of the Attribution Right.
The duration of the attribution right would be the same as the copyright term. After the author’s death, it would pass to her heirs (in the absence of heirs, the right might be exercised by an appropriately empowered authors’ society). Arguably, the public interest in accurate identification of a work’s creators persists beyond the expiration of exclusive economic rights in the work, but one should not conflate copyright claims with trademark-inflected claims against inaccurate labeling. Different durational consequences flow from the distinct nature of authors’ rights on the one hand, and consumer protection on the other. The interests underlying these regimes may at times converge, but neither fully captures the other (trademarks-based claims against false labeling allow injured economic actors – who may not in fact be authors – to act as proxies for the confused consumer, to correct the false information the defendant has injected into the marketplace). To each regime its own: to authors, control over the use of their names in connection with their works for so long as economic rights last, and to consumers, protection against false representations of fact in commercial advertising or promotion for so long as those misrepresentations are materially misleading.
The attribution right would be infringed when an author’s or performer’s name is omitted from publicly distributed copies and phonorecords or from public performances, including transmissions, of the work. Though the statute should distinguish between public and private distributions or communications, with only the public ones triggering the right, fair use and other statutory exceptions should not automatically supply a defense. It is important to recognize the difference between permissible copying or communications on the one hand, and uncredited copying or communications on the other. The question is not whether the use should be ruled infringing of the copyright owner’s economic rights, but whether the use, even if otherwise lawful, should acknowledge the user’s sources. This does not mean that omission of name credit can never be fair and reasonable. Rather, the test of reasonableness in this context is not the same as for fair use; for example, to the extent that repurposing a work from “aesthetic” to “informational” purposes might be a fair use,2 it does not follow that the “information” may omit the author’s name. The manner and medium of the work’s otherwise lawful dissemination may well affect the reasonableness of nondisclosure of authors’ or performers’ names. For example, a requirement to identify all authors and performers may unreasonably encumber the radio broadcast of a song, but performances disseminated by digital media might more conveniently include the listing. Indeed, a click can provide information even more extensive than that available on a printed page.
As for the details of a reasonableness standard, I believe a U.S. statute might profitably emulate other countries’ approaches, which include placing on the exploiter the burden of showing reasonableness, setting out statutory reasonableness factors, and encouraging the creation of voluntary codes for various sectors of creative activities. In fact, the credit agreements negotiated between industry groups such as the several motion picture and television guilds and the studios might inspire similar codes in other sectors.
Both VARA and, to some extent, other countries’ copyright laws provide an appropriately narrow approach to waivers of attribution rights. To be enforceable, the waiver should be in writing and signed by the author or performer before the work is created or performed, and should specifically identify the works and the kinds of uses to which the waiver applies. The waiver might, unless otherwise specified, devolve to the co-contractant’s successors. On the other hand, ambiguities in the scope of the waiver should be construed against the party asserting the waiver (whether or not that party is the original grantee). A U.S. attribution rights statute should not allow blanket waivers for present and future works of employees. Employee-executed waivers should meet the same standard as those of authors who are vested with copyright. Because attribution rights are independent of economic rights, an author should not need to be vested with the economic rights in order to qualify as a holder of attribution rights. With respect to works of multiple authorship, I would depart from VARA, which allows one joint author to waive all co-authors’ rights. I would provide that a waiver is effective only as to the co-author(s) who sign the requisitely specific writing; co-authors who do not sign would retain their attribution rights.
Injunctive and monetary relief should be available to redress violations of the attribution right. Although a remedy compelling inclusion of the author’s name in subsequent public distributions or communications of the work may be the principal form of relief, modification of existing, undistributed inventory may also be appropriate. Authors should be able to claim damages based on a showing of specific harm. Alternatively, because such a showing may be difficult to demonstrate, an attribution rights provision ought to permit the award of statutory damages, particularly when the defendant has willfully omitted the author’s name. As is already the case for VARA violations, registration should not be a prerequisite to obtaining statutory damages.