Causing Copyright

Intellectual Property, Copyright and Trademark, Networks, the Internet, and Cloud Computing, Internet and Media and Content

Article Snapshot

Author(s)

Shyamkrishna Balganesh

Source

Columbia Law Review, Vol. 117, No. 1, pp. 1-78, 2017

Summary

In deciding whether a creator is entitled to copyright protection, courts often consider whether the creator caused the work to be produced. Copyright law should develop a more coherent theory of causation.

Policy Relevance

The theory of causation in copyright cases should serve the goals of copyright.

Main Points

  • Generally, copyright law lacks a systematic method for deciding whether a particular creator actually caused a work to be created and thus deserves protection.
     
  • The Copyright Office denied a photographer’s claim that he held the copyright on a picture taken by a monkey using the photographer’s equipment.
     
  • When the issue of causation arises, copyright law refers to abstract ideas unrelated to causation.
     
    • If an artist creates a visually appealing image by knocking over his paints, copyright law would decide whether the image is protected based on its creativity and originality.
       
    • “Originality” cannot explain the denial of copyright in the monkey case, because the photograph was original.
       
  • When joint creators are involved, the courts ask whether the creators intended to be joint authors, and whether each controlled the production of the work; “control” is a proxy for causation.
     
  • Copyright law embodies unstated theories of causation.
     
    • Courts grapple with causation issues when a work has been produced by a machine such as a computer.
       
    • In “work for hire” cases, the law assumes that the employer caused the work to be created.
       
  • Copyright law should explicitly require the creator of a work to prove causation.
     
  • First, the creator should prove “creation in fact,” showing that “but for” the creator’s actions, the work would not exist; if joint creators are involved, each creator should prove that his contribution was necessary to the creation of the work.
     
  • Second, the creator should prove “legal causation,” showing that recognizing her connection to the work would satisfy the goals of copyright law; relevant factors include:
     
    • Whether creator’s control of the creative process made the outcome predictable.
       
    • Whether the creator’s claim is disproportionate to her contribution.
       
    • Whether the public might conflate one creator’s contribution with another’s contribution.
       
  • Requiring creators to prove causation explicitly would make decisions on copyright protection more coherent, and affirm the policies underlying copyright law.
     

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