Rational Faith: The Utility of Fairness in Copyright

By Bair, Stephanie Plamondon | Boston University Law Review, July 1, 2017 | Go to article overview

Rational Faith: The Utility of Fairness in Copyright


Bair, Stephanie Plamondon, Boston University Law Review


INTRODUCTION

In copyright scholarship, the values of fairness and utility are often at odds- and utility is almost always the winner. Scholars do not hesitate to sacrifice authors' interests if doing so will promote creativity and its attendant social benefits.

This dynamic was immediately apparent after the recent Blurred Lines litigation. The day after a jury held that Robin Thicke and Pharrell Williams's hit song infringed the late Marvin Gaye's copyright in his 1977 track Got to Give It Up and awarded Gaye's family $7.4 million in damages,1 commentators pronounced their own verdicts. In an opinion piece titled "Squelching Creativity," Kal Raustiala and Christopher Sprigman lamented that the decision "cast[] a huge shadow over musical creativity."2 Noah Feldman's piece, with the similarly definitive title "'Blurred Lines' and Bad Law," warned that the finding would "inhibit future artists" and "be a cost to artistic creation."3

Both editorials offered the same account of the jury's error. According to Feldman, the factfinder focused inappropriately on Gaye's fairness interests or "moral rights" in his creation.4 In the process, it ignored copyright's true purpose-the "maximiz[ation of] socially valuable artistic production."5 Feldman declared that "the jury should've overcome its legitimate moral outrage" and found in favor of Thicke and Williams in order to promote this true purpose.6 In a similar vein, Raustiala and Sprigman bluntly proclaimed that "[b]asic fairness [to creators] is not the goal of our copyright system."7 They explained that, instead, the goal "is to adequately incentivize artists to produce new creative works."8

The opinions expressed by Feldman, Raustiala, and Sprigman represent the dominant view in copyright and intellectual property scholarship today.9 Those adopting this view embrace an economic utilitarian account of intellectual property that seeks to advance the public interest by providing creators with adequate incentives to innovate.10 They reject a moral rights account of intellectual property that concerns itself with (among other things) issues of fairness to creators.11

In a recent article, Mark Lemley, a strong proponent of the dominant utilitarian approach, characterized the moral rights account as "Faith-Based Intellectual Property."12 Lemley's terminology suggests that anyone who cares about fairness in intellectual property ("IP") is ignoring empirical evidence about its economic value.13

It turns out, however, that the dominant view's charge that moral rights scholars ignore empirical evidence is more than a little ironic, given the fact that utilitarians have themselves largely overlooked an entire body of relevant empirical literature. Neuroscientists and psychologists have long known that preferences for fairness are a part of our biological makeup,14 and that this has consequences for creativity and innovation. Treating creators fairly not only acts as a powerful motivator for creative work, but also results in objectively more creative output.15 Conversely, creators lose motivation and creativity suffers when innovators operate in an environment they perceive to be unfair.16 If consideration of fairness is faith based, then, it is a rational faith, because empirical evidence shows that fairness promotes utilitarian ends.

This insight redefines the traditional scholarly debate between moral rights and utility proponents in IP. For moral rights advocates, it means the ability to openly express their intuitions about the "necessity and importance of'17 fairly administered IP rights without being accused of evidence-denying blind faith. And for utilitarians, it means a call to rethink their absolutist position that "basic fairness [to creators] is not the goal of our copyright system."18 Though it might not be the ultimate goal, as far as they are concerned, it deserves consideration as an instrumental goal in achieving the ultimate end of promoting creation. …

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