Causing Copyright

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

Article Snapshot


Shyamkrishna Balganesh


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


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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