Abstract
Excerpted From: Emma R. Burri, Check Your Bank Account First: Examining Copyright Formalities and Remedies Through a Race-Conscious Lens, 29 Washington and Lee Journal of Civil Rights and Social Justice 141 (Fall, 2022) (320 Footnotes) (Full Document)
The copyright registration system is one of the many ways which creators can protect their creations and intellectual property in the United States legal system. Copyright protection arises as soon as “an author fixes the work in a tangible form of expression” and currently lasts for the life of the author plus another seventy years after death. Copyright owners have exclusive rights to reproduce their works, perform the work publicly, and to distribute copies via sale, just to name a few. This system of copyright, however, has not always been a tool that is accessible to all creators. For much of the history of copyright in the United States certain mandatory steps, copyright formalities, had to be followed in order to gain access to the protection and benefits of copyright ownership. Failure to comply with these formalities either terminated the copyright or prevented the protections from arising in the first place.
These formalistic copyright requirements existed alongside explicit systems of slavery and racial discrimination which intentionally stripped Black Americans of capital, education, and land. These strict formal requirements existed “within social structures that historically did not serve the interests of black cultural production.” Copyright formalities became another tool to steal from and oppress Black creators. While copyright has shifted away from the rigid per se registration requirements, timely registration of a copyright still provides significant benefit in the form monetary damages and attorney's fees.
This Note examines the history of copyright formalities, how the history of formalities intersects with systemic racial oppression, and whether the historical concerns surrounding these procedural mechanisms have been adequately addressed by the reduction in formalistic requirements. Part II provides an overview of the origins of the copyright system in the United States and how formalities fit within that system. Part III examines how the copyright system has historically failed to provide adequate protection for artists of color. Part IV addresses the issues of modernization that are currently confronting copyright law and how formalization does or does not adequately address them. Part V examines how recent legislation has failed in modernizing musical copyright and in addressing the concerns of creators of color and explores the persistent economic inequality that BIPOC are still facing as a result of generations of discrimination. Part VI argues for the abolition of the limitations on remedies for failure to register within three month of creation. Part VII advocates for two potential alternative fee structures which could be adopted to make registration less of a financial hardship for creators. These proposed changes would be small but significant changes to the copyright system which would be a step towards addressing the historic and ongoing challenges that creators of color face.
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The United States currently experiences tremendous economic inequality which is closely tied to its history of segregation, racism, and exclusion of BIPOC. Section 412 and copyright fee structures may continue to perpetuate this trend given the economic realities that creators of color currently face. Abolishing section 412 and changing the copyright fee structure are two small and easily adopted changes to begin to address the legacy of racism in America. Make no mistake, these changes are limited proposals intended to provide a manageable first step and create meaningful benefits for creators of color immediately, but they are far from a comprehensive solution to persistent racism in America.
J.D. Washington and Lee University School of Law (2022).
