Jessica Rizzo (University of Pennsylvania Law School – Student/Alumni/Adjunct) has posted Flesh and Bone: Theater, Copyright, and the Ineffable (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:
Existing copyright regimes are wholly out of step with the most critically significant forms of theater being made today. The joint works doctrine in particular is inadequate for assigning value to the contributions of multiple collaborators in a fair or sensible way. This is true to an extent even in the traditional theater, but the doctrine is utterly unsuited to parsing the more complex and mutable vectors of authorship in more experimental, de-hierarchized collaborative configurations. The fact that our legal system is not equipped to accommodate innovative performance work signals a troubling lack of national investment in the arts. To remedy this unfortunate situation, I propose amending the Copyright Act so that it (1) invalidates judge-made law requiring an independently copyrightable contribution for joint authors in theater and (2) makes it possible to assign proportional ownership shares that reflect the relative contributions of collaborators. I further propose establishing a Federal Court of Appeals for Art akin to the Federal Circuit so that, going forward, complex questions of authorship and aesthetics can be adjudicated not by generalists but by judges with appropriate expertise. Art, like science, has a specialized technical language all its own, and the conditions under which are is made are particular and often peculiar. If it is to be true to its constitutional mandate, copyright law must promote artistic progress. It may be too much to ask that the law keep pace with the manifold developments in the ever expanding (and increasingly interdisciplinary) art world, but a new, specialized Article III court could at least mitigate against the law being left where it is today, in the proverbial dust.