Case Western Reserve University School of Law Scholarly Commons Faculty Publications 2020 Abandoning Copyright Dave Fagundes Aaron K. Perzanowski Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Intellectual Property Law Commons Repository Citation Fagundes, Dave and Perzanowski, Aaron K., "Abandoning Copyright" (2020). Faculty Publications. 2060. https://scholarlycommons.law.case.edu/faculty_publications/2060 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. ABANDONING COPYRIGHT Dave Fagundes* & Aaron Perzanowski** For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and the case law is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete private benefits, copyright abandonment is potentially costly for rights holders but broadly beneficial for society. Nonetheless, rights holders—ranging from lauded filmmakers and photographers to leading museums and everyday creators—make the counterintuitive choice to abandon valuable works. This Article analyzes two previously untapped resources to better understand copyright abandonment. First, we survey four decades U.S. Copyright Office records, demonstrating both the motivations for abandonment and the infrequency of the practice. Second, we examine every state and federal copyright abandonment case, a corpus of nearly 300 decisions. By distilling this body of law, this Article distinguishes abandonment from a set of related doctrines and reveals the major fault lines in judicial application of the abandonment standard. Finally, we highlight the potential of abandonment to further copyright’s constitutional aims by suggesting a series of reforms designed to better align copyright holder incentives with the public good. * Baker Botts LLP Professor of Law, Assistant Dean for Faculty Development, University of Houston Law Center. ** Professor of Law, Oliver C. Schroeder Jr. Distinguished Research Scholar, Case Western Reserve University. Our thanks to Ellen Boyd, Kathleen Burke, and David Cruz for outstanding research assistance, to Zvi Rosen for his help navigating Copyright Office records, and to Clark Asay, Mark Bartholomew, Sarah Burstein, Michael Carroll, Bryan Choi, Margaret Chon, Jorge Contreras, Rebecca Curtin, Brian Frye, Dmitry Karshtedt, Jake Linford, Yvette Liebesman, Lydia Loren, Mike Madison, Michael Mattioli, Jan Osei-Tutu, Blake Reid, Guy Rub, Andres Sawicki, Martin Skladany, Amelia Rinehart, Jessica L. Roberts, Jennifer Rothman, Zahr Said, Lior Strahilevitz, Shine Tu, and Rebecca Tushnet, as well as participants in the Association of Law Property & Society (ALPS) Annual Meeting, Intellectual Property Scholars Conference (IPSC), M3 IP Workshop, Three Rivers IP and Tech Law Colloquium, University of Houston Law Center Internal Faculty Workshop Series, and Works In Progress IP (WIPIP) meetings, for their comments on prior drafts. Electronic copy available at: https://ssrn.com/abstract=3543654 INTRODUCTION ............................................................................. 3 I. CONCEPTUALIZING ABANDONMENT .......................................... 7 A. Abandoning Property .................................................... 7 B. Abandoning Copyrights .............................................. 10 II. THE SOCIAL COSTS OF ABANDONMENT ................................. 14 A. The Social Costs of Abandoning Physical Property ... 14 B. The Social Benefits of Abandoning Copyrights ......... 16 1. Private Welfare Effects ......................................... 16 2. Public Welfare Effects .......................................... 19 C. Revealed Preferences & Attempted Abandonment .... 31 III. THE LAW OF COPYRIGHT ABANDONMENT ............................ 36 A. Statutory Silence ......................................................... 36 B. Administrative Agnosticism ....................................... 38 C. Judicial Uncertainty .................................................... 43 1. Distinguishing Adjacent Doctrines ....................... 44 2. The Unsettled Black Letter of Abandonment ....... 47 IV. OPTIMIZING ABANDONMENT ................................................ 59 A. Illuminating a Pathway to Abandonment ................... 60 B. Recalibrating Incentives .............................................. 64 1. Carrots ................................................................... 65 2. Sticks. .................................................................... 69 C. Availability and Abandonment as a Social Practice ... 70 CONCLUSION .............................................................................. 72 2 Electronic copy available at: https://ssrn.com/abstract=3543654 INTRODUCTION Copyright vests automatically, whether authors want it or not. The author of an original work is a copyright holder from the instant that work is fixed in some durable form.1 But what if you don’t want to own a copyright in the photo you just took or the song you just wrote?2 Or what if, for reasons of personal gain or pure altruism, you want to abandon your existing copyright and place your work in the public domain? In theory, copyright owners, like owners of chattel property, may abandon their works.3 In fact, copyright law borrowed its legal test for abandonment from common-law property doctrine. In practice though, it remains far from clear how an author can actually relinquish rights in a work. The Copyright Act makes no mention of abandonment, and there is no standard form to file with the Copyright Office. In light of this, courts have been understandably conflicted about what acts reflect an intent to abandon. And even if the law did offer a clear pathway for authors to abandon their copyrights, there is no single, definitive registry of abandoned works for would-be users to consult.4 The uncertainty surrounding these elementary questions of copyright ownership is problematic, in part, because it frustrates abandonment’s potential to enrich the increasingly starved public domain. Copyright’s constitutional lodestar—promoting the progress 1 See 17 U.S.C. § 102(a) (2018). 2 Aside from works created by the federal government or those that fail copyright’s minimal eligibility standards, there is no mechanism under current U.S. law to prevent copyright from vesting as an initial matter. See id. § 105. 3 We focus here on U.S. copyright law. But there is considerable variation among jurisdictions on the question of copyright abandonment. Under United Kingdom law, the availability of abandonment is far from clear, and statements purporting to abandon copyright may be interpreted as mere revocable licenses. See Phillip Johnson, ‘Dedicating’ Copyright to the Public Domain, 71 MOD. L. REV. 587, 596- 8 (2008). And German courts have rejected the idea of abandonment. See GRAHAM GREENLEAF & DAVID LINDSAY, PUBLIC RIGHTS: COPYRIGHT’S PUBLIC DOMAINS 512 (2018) (citing Berlin Wall Pictures, Federal Court of Justice (Bundesgerichtshof BGH) Feb. 23, (1995) GRUR 673, (1997) 28 IIC 282). Other jurisdictions—Chile, Colombia, India, and Kenya among them—expressly recognize abandonment. See Andres Guadamuz, Comparative Analysis of National Approaches on Voluntary Copyright Relinquishment, WIPO COMMITTEE ON DEVELOPMENT AND INTELLECTUAL PROPERTY (2014). 4 Cf. Robert Merges, To Waive and Waive Not: Property and Flexibility in the Digital Era, 34 COLUM. J.L. & ARTS 113 (2011) (reflecting on the surprising difficulty of abandoning copyrights). 3 Electronic copy available at: https://ssrn.com/abstract=3543654 of science—presumes a healthy balance between privately owned works and publicly available material. But after decades of unremittingly copyright-holder-friendly reforms, this balance has tipped significantly toward private rights at the expense of the public. Legislation extending the term of copyright and eliminating formal requirements for protection has slowed to a trickle the flow of works into the public domain. In light of these trends, an invigorated abandonment doctrine promises a voluntary means to replenish the desiccated public domain well before statutory expiration of copyright. The desire among authors to part with their copyrights in order to enrich the public domain is not merely theoretical. Rights holders have attempted to abandon their rights in millions of photos, including hundreds of thousands from the Metropolitan Museum of Art alone. Acclaimed photographer Carol Highmsith sought to abandon her rights in tens of thousands of images donated to the Library of Congress. Likewise, award-winning filmmaker Nina Paley expressed her desire to place her film Sita Sings the Blues in the public domain. And more than 100,000 software projects hosted on GitHub indicate the developers’ intention to