Sex, Drones & Videotape: Rethinking Copyright’s Authorship-Fixation Conflation in the Age of Performance
Volume 68, Issue 6, 1319-1370
For more than two centuries, the Copyright Act has eschewed the task of defining authorship. However, with the decoupling of the act of creation from the act of fixation and the dramatic advance of technology, the issue of authorship has gained renewed relevance in recent years, as questions of authorship have permeated numerous high-profile legal controversies. To cite a few examples, the metaphysics of authorship lay at the heart of copyright squabbles involving Naruto (the crested macaque who famously took a selfie), Cindy Lee Garcia (the actress who received death threats for her appearance in the controversial movie The Innocence of Muslims, and, less obviously, Terry Bollea (the wrestler professionally known as Hulk Hogan who bankrupted Gawker Media with a sex-tape lawsuit).
With its exegesis of the Garcia v. Google decisions (both Judge Kozinski’s original opinion and the Ninth Circuit’s resounding reversal en banc), its reconsideration of the Supreme Court’s seminal decision in Burrow-Giles Lithographic Co. v. Sarony, and its analysis of authorial inquiries raised by interviews, drone and surveillance footage, bootleg recordings, paparazzi photographs and classroom note-taking, this Article identifies and critiques the problematic juridical conflation of copyright’s authorship and fixation requirements. As the Article argues, copyright’s authorship-as-fixation regime rests on a faulty premise, betrays copyright law’s role in recognizing and rewarding creativity and denies copyright interests to the very individuals who have provided significant, if not the most important, original contributions to works within copyright’s traditional subject matter. As a result, the Article calls for a fundamental reconsideration of the concept of authorship, including the issue of performer copyrights, in order to better align copyright law with its utilitarian goals, the realities of the creative process and broader public policy.