Valuing Attribution and Publication in Intellectual Property

Intellectual Property

Article Snapshot

Author(s)

Christopher J. Buccafusco, Zachary C. Burns and Christopher Sprigman

Source

Virginia Law and Economics Research Paper, No. 2012-02, 2012

Summary

The authors’ studies show that creators value attribution rights and this fact should affect the analysis of U.S. law.

Policy Relevance

The data from these experiments can help influence the desirability of attribution rights in the U.S. compared to those abroad and help in understanding the value that creators get from attribution.

Main Points

  • A key question about the value of a work in fields of creative endeavor is: how willing are creators to accept less money for more credit?
     
  • Attribution is the right of an author, creator, or artist to be credited with having created a work, beyond merely being compensated for the work.
     
  • Many creators are willing to accept less money for greater attribution for their work; however, U.S. intellectual property (IP) law offers only very limited protection to a creator’s interest in his or her reputation.
     
  • Copyright law does not cover an author’s attribution rights so authors often used trademark law to prevent their work from being “passed off” by others. This remedy was lost, however, when the Supreme Court disallowed such use of trademark law in Dastar Corp. v. Twentieth Century Fox.
     
  • Foreign countries tend to have much stronger attribution protection laws than the U.S. and often seek enforcement of those laws through treaties.
     
  • The “creativity effect” tends to show that those who create a work place a higher value on it than mere owners of the work or would-be purchasers.
     
  • The experimental studies concur and show that creators of works tend to value them substantially higher than rational choice theory would predict. This could make IP markets less efficient by making negotiation of deals more difficult and harder to consummate—resulting in fewer deals overall.
     
  • Adding a default right of attribution to American IP law may worsen rather than reduce inefficiencies in IP markets. The law’s stance on attribution should thus weigh carefully the value of having an attribution default versus not having one.
     

 

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