Copyright Article

The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying

Vol. 125 No. 7 Courts and scholars today understand and discuss the institution of copyright in wholly instrumental terms. Indeed, given the forms of analysis that they routinely employ, one might be forgiven for thinking that copyright is nothing more than a comprehensive government-administered scheme for encouraging the production of creative expression and is therefore quite legitimately the subject matter of public law. While this instrumental focus may have the beneficial effect of limiting copyright’s unending expansion, it also serves as a source of distraction. It directs attention away from the reality that copyright is fundamentally a creation of the law and is thus endowed with a uniquely legal normativity that instrumental accounts find difficult to capture. In so doing, it also glosses over the rather crucial fact that copyright law’s basic structure is and indeed always has been that of private law.
Copyright Article

Worth a Thousand Words: The Images of Copyright

Vol. 125 No. 3 Copyright starts with the written word as its model, then tries to fit everything else into the literary mode. It oscillates between two positions on nontextual creative works such as images – either they are transparent, or they are opaque. When courts treat images as transparent, they deny that interpretation is necessary, claiming both that the meaning of the image is so obvious that it admits of no serious debate and that the image is a mere representation of reality. When they treat images as opaque, they deny that interpretation is possible, pretending that images are so far from being susceptible to discussion and analysis using words that there is no point in trying. The oscillation between opacity and transparency has been the source of much bad law. This Article explores the ungovernability of images in copyright, beginning with an overview of the power of images in the law more generally. The Article then turns to persistent difficulties in assessing copyrightability and infringement for visual works.
Copyright Recent Publication

Recent Publications

Vol. 122 No. 1 COPYRIGHT’S PARADOX. By Neil Weinstock Netanel. New York, N.Y.: Oxford University Press. 2008. Pp. ix, 274. $34.95. ENHANCING GOVERNMENT: FEDERALISM FOR THE 21ST CENTURY....