A Tale of (at Least) Two Authors: Focusing Copyright Law on Process over Product

I. INTRODUCTION 1009 II. THE AUTHOR IN COPYRIGHT LAW 1013 III. FOCUSING ON PROCESS 1020 IV. PRACTICAL CONCERNS 1028 V. CONCLUSION 1032 I. INTRODUCTION U.S. copyright law accords its bundle of rights to the "author" of the work.1 But despite the centrality of this figure in the Copyright Act, the statute doesn't define the term, and commentators have yet to agree on precisely what characteristics this creature should have. As history and scholarship show, an author can take on many different personas.she can be individual or corporate; she can be someone who creates deliberately or accidentally; and she can work separately or in collaboration with others. Far more attention has been paid to this individual's creative output: "works of authorship."2 Works of authorship are the creations to which rights attach,3 and so discovering the substance and boundaries of such works is often the first step in any copyright analysis. As a result, in U.S. copyright law, the author is defined more by what she creates-a copyrightable "work"-than by why she creates. This result seems odd, because U.S. copyright law is typically explained as affording authors economic incentives to create so that the public benefits from the development of new works.4 An author will be reluctant to create and commercialize her work if a second-comer can simply copy that work and sell it so as to recoup her cost of copying, far more cheaply than the author herself, who must also recoup the cost of production. This explanation assumes, however, that authors create in response to economic incentives. While this may be true for some authors and for some forms of expression, it is unquestionably not true for others.5 A Hollywood studio or a famous romance writer might well be thinking about profits and losses as they begin work on a new film or novel, but a teenager writing songs in her bedroom might merely be expressing sadness over a breakup or sharing her musicality with her friends. The incentive assumption is made even more problematic by the vast range of expression that is protected under the current Copyright Act. Whereas copyrightability under the 1909 Copyright Act was triggered by publication with the appropriate affixed notice,6 the 1976 Copyright Act requires only an original work "fixed in a tangible medium of expression."7 Thus, as others have noted, e-mails, musings on the back of an envelope, and vacation photos might all be equally protected by copyright, even though none of them were written with an eye toward economic exploitation.8 Because the term "author" spans a wide range of characteristics, one's notion of how the word should be described might align not only with the kind of creative work one does (or engages with) but also with one's sense of what the scope of the legal rights attached to authorship should be. In the traditional argument, an author is a creator (perhaps a corporate one) who is motivated by economic return.9 Such an author expects and deserves remuneration for its efforts in order to recoup its investment in selection, production, and distribution. It will be disinclined to create additional works if rampant copying goes on unabated; it is the creator of the standard, the canon, the blockbuster. In the counterargument, an author is the (typically individual) creator who produces new and imaginative works, often by incorporating or commenting on the works of others.10 She will create without incentives so long as she is not constantly in fear of litigation (and, perhaps, receives attribution); she is the creator of the mashup, the parody, the independent film. …