In The Secret Life of Copyright, copyright law meets Black Lives Matter and #MeToo in a provocative examination of how our legal regime governing creative production unexpectedly perpetuates inequalities along racial, gender, and socioeconomic lines while undermining progress in the arts. Drawing on numerous case studies – Harvard’s slave daguerreotypes, celebrity sex tapes, famous Wall Street statues, beloved musicals, and dictator copyrights – the book argues that, despite their purported neutrality, key rules governing copyrights – from the authorship, derivative rights, and fair use doctrines to copyright’s First Amendment immunity – systematically disadvantage individuals from traditionally marginalized communities. Since laws regulating the use of creative content increasingly mediate participation and privilege in the digital world, The Secret Life of Copyright provides a template for a more robust copyright system that better addresses egalitarian concerns and serves the interests of creativity.

With its assessment of cases involving Oscar Wilde, Cindy Lee Garcia, Arne Svenson, and Hulk Hogan and analysis of authorial inquiries raised by slavery daguerreotypes, surveillance art, paparazzi photographs, revenge porn, and celebrity sex tapes, Chapter 1 identifies and critiques the problematic conflation of copyright’s authorship and fixation requirements that functions to deny performers property interests in creative works. Copyright’s authorship-as-fixation regime rests on a faulty premise, betrays copyright law’s role in recognizing and rewarding creativity, and denies authorial rights to a class of individuals – subjects – who provide significant original contributions to works within copyright’s traditional subject matter. Just as significantly, given the dramatic disparities in capital accumulation and control over the tools of creative production and continuing inequalities in the representation of women and persons of color behind the camera, the authorship-as-fixation doctrine has had far-reaching societal consequences by propertizing the white male gaze and giving legal bite to a system of production and ownership that imbues rightsholders with the power to control representations of female and non-white bodies.

In The Secret Life of Copyright, copyright law meets Black Lives Matter and #MeToo in a provocative examination of how our legal regime governing creative production unexpectedly perpetuates inequalities along racial, gender, and socioeconomic lines while undermining progress in the arts. Drawing on numerous case studies – Harvard’s slave daguerreotypes, celebrity sex tapes, famous Wall Street statues, beloved musicals, and dictator copyrights – the book argues that, despite their purported neutrality, key rules governing copyrights – from the authorship, derivative rights, and fair use doctrines to copyright’s First Amendment immunity – systematically disadvantage individuals from traditionally marginalized communities. Since laws regulating the use of creative content increasingly mediate participation and privilege in the digital world, The Secret Life of Copyright provides a template for a more robust copyright system that better addresses egalitarian concerns and serves the interests of creativity.

Chapter 4 identifies one of the most troubling developments in copyright law over the past generation: the surprising and remarkable story of how its exemption from First Amendment scrutiny has enabled powerful interests to cynically weaponize copyright as a forceful, state-backed vehicle of censorship to silence critics and suppress dissent. Thus, copyright has a growing free speech problem – one that threatens to undermine both the vitality of our regime governing the use of creative works and our most basic free speech rights. After surveying the growing use of copyright law to stifle legitimate discourse on issues of racism, religious discrimination, reproductive rights, gay rights, corruption, torture, and police brutality, the chapter examines the conditions empowering such lawfare and considers how we might better ensure that copyright law stops serving as a transparent censorial proxy enabling the powerful to silence the powerless and, instead, returns its focus to vindicating the appropriate economic interests of rightsholders.

Chapter 3 argues that copyright’s derivative rights doctrine, with its ever-expansive breadth, has played a powerful, but unappreciated, role in privileging prevailing ideologies over resistive ones, reducing the latter to acts of infringement. With its examination of the long-forgotten copyright disputes involving the translations of Bambi and Mein Kampf from German to English in the lead up to World War II and the infamous standoff between the Charging Bull and Fearless Girl statues on Wall Street, the chapter details the way in which copyright’s outlawing of acts of “semiotic disobedience” has rendered important cultural symbols inviolable and, in the process, ensured the preservation of prevailing narratives on issues related to geopolitics, race, gender, religion, slavery, national heritage, indigeneity, colonialism, capitalism, and corporate governance by suppressing challenges to them. As such, the chapter posits that the derivative rights doctrine has created sacred texts in two senses: works that are sacrosanct and epistemologies that are incontestable. A derivative-rights doctrine that is insufficiently checked (by doctrines such as fair use) not only betrays the core purpose of the copyright regime – progress in the arts – but also forcefully undermines the ability of society (and, particularly, marginalized groups) to resist dominant social and political narratives.