Abolishing the Derivative Works Right in Copyright, Or, Why Legalizing “The Grey Album” Makes Economic Sense
I’ve just posted a draft paper to SSRN titled Faulty Math: The Economics of Legalizing “The Grey Album.” The Alabama Law Review has kindly agreed to publish it in Volume 59 this winter. The paper examines the incentive-based justifications (primarily economic) for giving copyright owners control over derivative works – in other words, for allowing J.K. Rowling to control who makes movies, Legos, and even earrings based on her Harry Potter novels. Using available empirical data and relevant theoretical models, the paper argues the economic case for the right is weak at best; given its costs in achieving efficient, diverse, rapid production of cultural goods, the sensible move would be to eliminate the adaptation right from copyright’s bundle of entitlements. The paper examines the necessary legal moves to achieve this end, explores complications and challenges created by overlap among copyright’s grants, and suggests the continued viability of the derivative works right can best be ascribed not to economics, but to other motives: the desire to protect the linkage between an author and her expression, and the sense a creator deserves the benefits that flow from her work. Abstract below the jump.
The abstract for the paper:
From an economic perspective, giving copyright holders the right to control production of derivative works – works that transform their expression, such as the movie version of a novel – is unjustified, even harmful. Current scholarship either defends this entitlement as economically sensible or partially reconfigures it. This article assesses the dominant economic rationales for derivative control, and finds them weak at best. Unlike other copyright scholarship, this piece argues that since the right prevents production of attractive, diverse, cheaper new expression, and blocks the promise of re-mix culture, it should be eliminated. This change would also concentrate attention on the adaptation right’s role as a proxy for other copyright concerns, primarily the risk of derivatives substituting for initial works. The article proposes re-configuring copyright law to unfetter transformative expression while safeguarding copyright’s other entitlements. Finally, it concludes by suggesting that economic arguments cover more deeply held beliefs, based on personality theory or labor-desert conceptions, supporting control over adaptation.