Law Commons^™

A License To Plagiarize, Brian L. Frye

Law Faculty Scholarly Articles

Since time immemorial, authors have wanted to own various kinds of

exclusive rights in the works they create. Curiously, the rights authors want

to own at any particular point in time tend to reflect the nature of the market

for the works they create. The first exclusive right authors wanted was attribution.

In classical Greece, philosophers accused each other of copying

ideas without attribution. The Roman poet Martial coined the term plagiarius

to criticize other poets for passing off his poems as their own. Even

medieval Irish poets observed plagiarism norms that prohibited copying

without attribution. In all of these …

A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye

Law Faculty Scholarly Articles

For numberless generations, jurisprudes waged total war in the

conflict among textualism, intentionalism, and purposivism.

Textualists insisted that courts must interpret statutes based on the

meaning of their text, intentionalists insisted on the intention of the

legislature, and purposivists insisted on the purpose of the statute.

Eventually, textualism prevailed. Courts universally recognize

that they are obligated to interpret statutes in light of their text, or

at least pretend that the text of the statute determined their

interpretation. And the few remaining heretics are swiftly identified

and corrected by their superiors. As Justice Kagan famously

observed, “We’re all textualists now.” Whether …

Conceptual Copyright, Brian L. Frye

Law Faculty Scholarly Articles

Conceptual art is art that consists of ideas, not their realization. It tests the

boundaries of art, by eliminating the art object entirely. Legal scholars should be

interested in conceptual art because it can help them test the boundaries of legal

doctrines and their justifications. I created a work of conceptual art that reflects

on both the securities laws and copyright doctrine. Among other things, I asked

the SEC and the Copyright Office to opine on that work, with limited success. I

use my experience to reflect on how conceptual art can illuminate our

understanding of the law.

The Right Of Reattribution, Brian L. Frye

Law Faculty Scholarly Articles

Usually, authors love their works as their children: fiercely and unconditionally. Indeed, many authors refer to their works as their “children,” and some show far more solicitude for their aesthetic children than their actual ones. Of course, authors can also be cruel to their works. As William Faulkner famously observed, “In writing you must kill all your darlings.” But even such merciless culling doesn’t prevent authors from loving what survives. If anything, their love only deepens with each sacrifice.

But even the filial bond can be broken. Many disappointed parents have disowned their prodigal children. Sometimes the relationship can be …

Literary Landlords In Plaguetime, Brian L. Frye

Law Faculty Scholarly Articles

The coronavirus pandemic has affected our lives in countless ways. One of its unfortunate effects was the unavoidable closure of public libraries. Many people rely on public libraries for many different things, including free access to books. When public libraries closed, many people lost access to books, especially new books.

In response, the Internet Archive created the National Emergency Library to make digital copies of books more accessible. The Internet Archive's Open Library is a free digital lending library founded in 2006 that provides digital access to the books in its collection. Currently, the Open Library holds about 4 million …