Law Commons^™

How Many Wrongs Make A Copyright?, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Derek Bambauer’s provocative paper argues that, because the remedies available to people who suffer unconsented distribution of intimate images of themselves are insufficient, we should amend copyright law to fill the gap. Bambauer’s proposal requires significant changes to every part of copyright—what copyright seeks to encourage, who counts as an author/owner, what counts as an exclusive right, what qualifies as infringement, what suffices as a defense, and what remedies are available. These differences are not mere details. Among other things, incentivizing intimacy is not the same thing as incentivizing creativity. Bambauer’s argument that copyright is normatively empty and already full …

All Of This Has Happened Before And All Of This Will Happen Again: Innovation In Copyright Licensing, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Claims that copyright licensing can substitute for fair use have a long history. This article focuses on a new cycle of the copyright licensing debate, which has brought revised arguments in favor of universal copyright licensing. First, the new arrangements offered by large copyright owners often purport to sanction the large-scale creation of derivative works, rather than mere reproductions, which were the focus of earlier blanket licensing efforts. Second, the new licenses are often free. Rather than demanding royalties as in the past, copyright owners just want a piece of the action—along with the right to claim that unlicensed uses …

“I’M A Lawyer, Not An Ethnographer, Jim”: Textual Poachers And Fair Use, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This short article, written for a festschrift for Henry Jenkins, discusses the influence of his work on media fandom in legal scholarship and advocacy around fair use.

Performance Anxiety: Copyright Embodied And Disembodied, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance—both as protected work and as right—is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

One key problem of performance from copyright’s perspective …

Copy This Essay: How Fair Use Doctrine Harms Free Speech And How Copying Serves It, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay …