Academic journal article Harvard Law Review

"Recoding" and the Derivative Works Entitlement: Addressing the First Amendment Challenge

Academic journal article Harvard Law Review

"Recoding" and the Derivative Works Entitlement: Addressing the First Amendment Challenge

Article excerpt

An author redefines the characters of a classic literary tale to criticize the original narrative and the slave-owning society it romanticizes. (1) A sculptor works from a photograph to duplicate the image of eight puppies and their owners in a critique of the banality of modern society. (2) A publisher releases a comic book that depicts classic and wholesome cartoon characters engaging in decidedly unwholesome activities. (3) These creators have in common their use of "recoding": the appropriation of a copyrighted cultural object for new expression in a way that ascribes a different meaning to it than intended by its creator. (4)

Whether and to what extent recoding should be tolerated raises concerns that go to the foundations of copyright law: How much compensation for artists is enough? Should they be able to collect license fees from new artists in addition to the compensation they get from selling their works to the public? Who benefits when copyright owners dictate the terms of use for cultural icons that society has widely recognized? This Note focuses on various utilitarian implications of recoding and how they relate to an ongoing, heated debate over the proper role of the First Amendment in limiting (or strengthening) the entitlements granted by copyright law. By exploring this intersection of utilitarian and First Amendment concerns, it arrives at two tentative conclusions. First, a more explicit role for the government in determining the ground rules of recoding could ameliorate utilitarian and, somewhat paradoxically, First Amendment concerns. Second, a reform conditioning the right to recode on the passage of time and the cultural saturation of the underlying object would have utilitarian and possible First Amendment advantages over other suggested reforms.

Part I sets up the competing interests at stake by summarizing important aspects of the law governing recoding and the nature of First Amendment challenges to the entitlements granted by copyright. Part II engages in the thought experiment of abolishing the derivative works entitlement, a fundamental obstacle to recoding, and concludes that this entitlement is desirable but overly broad--a problem that could be addressed with a more explicit government role in the pro-cess. Part III explores three suggested reforms: a compulsory license, an intent/estoppel theory relating to the copyright owner's actions, and a rule granting the right to recode any cultural object that has become established over time or through cultural saturation. It concludes that the third is most beneficial for the interests explored.

I. LEGAL CONTOURS OF RECODING

A. Copyright Law

Legal scholars have long debated the justification for intellectual property rights (5) and questioned their proper role and scope in a free-speech democracy. (6) The Constitution explicitly states that the purpose of intellectual property legislation must be "To promote the Progress of Science and useful Arts. (7) Congress enacted the first copyright statute in 1790 and has made many statutory modifications since; "the general goal of these statutes has been to establish an incentive for authors to create, by providing them an avenue for obtaining remuneration. (8) The Supreme Court has similarly interpreted the constitutional mandate in a utilitarian cast. (9) Consistent with recent scholarship, this Note considers utilitarian aims beyond ex ante incentives to create; relevant concerns include the development of markets for the protected work and the prevention of harmful externalities. (10)

Many provisions of the Copyright Act go to the basic question of how cultural objects may be recoded. These include provisions dealing with the simple act of reproduction itself (11) and with compulsory licenses for certain performances. (12) The Act also grants a creative work's author the exclusive right to prepare "derivative works" (13) and consequently restricts recoding. …

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