Copyright's Market Gibberish

By Gilden, Andrew | Washington Law Review, September 1, 2019 | Go to article overview

Copyright's Market Gibberish


Gilden, Andrew, Washington Law Review


Introduction

Copyright law often forces litigants to answer some very strange questions. For example:

Would anyone pay to see you get attacked by an orca whale?1

Do you plan on selling that video of you having sex with your best friend's wife?2

Do you make a living off of your own wedding photos?3

Did you join a monastery in order to make a few bucks?4

Will you ever really be famous?5

If litigants can plausibly answer "yes," then they stand a decent chance of establishing infringement, demonstrating sufficient "market harm" to defeat a fair use defense, and obtaining monetary and injunctive relief. If they are forced to say "no," courts increasingly shut their doors to their claim, deny any form of relief, and cast their interests as beyond what copyright law is meant to protect.

Copyright law in the United States today is typically justified by the need to provide authors with economic incentives to create original works.6 This longstanding justification for copyright, however, has in recent years become a doctrinal limitation. Although authors historically used copyright to protect nonpecuniary interests,7 contemporary courts and scholars now frequently insist that rightsholders can only challenge the use of a work if it implicates a genuine economic interest in the protected work.8 If, instead, what motivates a dispute is family privacy, sexual autonomy, reputation, or physical and psychological well-being, the rightsholder must look to other areas of law, even if copyright law provides the only realistic avenue for relief.9 Under this view, if copyright is meant to provide market exclusivity and to financially reward authors of creative works, then copyright assertions unrelated to markets and money accordingly have no place in the system.

Despite courts' and scholars' frequent insistence that copyright is only about economic incentives and reward, this Article shows that other noneconomic interests are still quite regularly vindicated through the rhetoric of markets. Even if a lawsuit is rather obviously motivated by interests having nothing to do with economic interests, if a plaintiff can plausibly tell a story about market harm, they are able to vindicate a wide range of noneconomic interests.10 This ability to tell a story about market harm, unfortunately, is often limited to the most powerful rightsholders- famous artists, celebrities, and corporate creators-and not to the wide range of vulnerable and lesser-known individuals who are increasingly turning to copyright to stop the viral spread of their words, images, or voices.11

This Article gives a name to courts' manipulation of market rhetoric in order to advance noneconomic copyright interests: market gibberish. Market gibberish hides the true motivations behind a copyright lawsuit as well as courts' resolution of the dispute, thereby masking the interests actually at stake in contemporary copyright law. Privacy, autonomy, security, family, and friendship are driving a wide range of contemporary copyright assertions, but there is currently almost no place within the dominant approaches to copyright infringement to expressly acknowledge those nontraditional interests.12 Accordingly, courts resort to market gibberish as a way to protect nontraditional copyright interests in a seemingly traditional way. Although courts in copyright cases- particularly in fair use cases-increasingly recognize a broad range of defendants' interests in copying as part of news reporting, scientific research, parody, critique, and other forms of free speech,13 these courts typically do not acknowledge which plaintiffs' interests they are weighing against them. Within the rhetoric of fair use, it is market gibberish versus free speech, or it is nothing at all.

Copyright law desperately needs an expanded vocabulary for the interests it serves.14 In previous work, I have shown that intellectual property law-largely outside of courts-plays an important role in resolving a broad range of social and cultural disputes that are hard to square with economic incentives theory. …

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