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The Emperor Has No Copyright subverts the myth of American copyright militancy by providing a more nuanced view of our enforcement regime. Specifically through the use of ostensibly neutral formalities such as the timely registration requirement for statutory damages and attorneys’ fees, the Emperor has been sold a suit of copyright that leaves a surprising number of authors naked - without sufficiently meaningful remedies for infringements of their creative output. By drawing on a wide range of examples - from Hollywood screenplays to the formative blues riffs upon which rock music is built, paparazzi shots of Britney Spears to the iconic portrait of Che Guevara qua revolutionary, and congressional testimony from Scott Turow to publisher battles against university copy shops - this Article deconstructs the beneficiaries of the existing, registration-driven regime. To be sure, sophisticated players enjoy powerful remedies when enforcing their copyrights, dangling the legal Sword of Damocles - draconian statutory damages - over the heads of accused infringers, threatening to hand defendants their heads on a platter with more fervor than Salomé’s dance (to licensed music, of course). Yet when they function as users of intellectual property, these same players often face only the most paltry of penalties for unauthorized exploitation - even when they infringe willfully. In the end, therefore, copyrighted works are effectively placed into a hierarchy of protection that, in many ways, safeguards creators less vigorously than regimes in other countries.
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24 Berkeley Technology Law Journal 1397 (2009) |
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Registration, Cultural Hierarchy and the Myth of American Copyright Militancy |
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“I hope he rots in jail.”
—Slash, ex-guitarist for Guns N’ Roses, reacting to the arrest of a blogger who posted nine tracks from the long-delayed album Chinese Democracy shortly before the songs’ release in 2008. The blogger faced a potential five-year prison term and a $250,000 fine. |
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The Emperor Has No Copyright |
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Slash-Shhh, © 2008 Scott Penner, courtesy of Creative Commons Attribution-Share Alike 2.0 Generic License |
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© 2010 john tehranian |
