Volume 67

It is a distinct honor and privilege to succeed Jay Dougherty as Editor-in-Chief of the Journal of the Copyright Society of the U.S.A. Jay deserves much praise for his long service and dedication to the Journal. Thankfully, Jay has agreed to continue as a member of the Journal’s Board of Editors, so we can all continue to benefit from his wisdom.

Volume 67, issue 1 opens with an article based upon the 49th Annual Donald C. Brace Memorial Lecture. In it, Professor Jeanne Fromer of New York University Law School introduces to what she calls the “copyright opportunist.” For her, the copyright opportunist owns an asset of uncertain value under copyright law and uses litigation to increase or confirm its value. Importantly, Professor Fromer’s copyright opportunist is not a troll. A troll’s primary purpose is to sue without any plan to license or otherwise exploit copyright rights. By, the copyright opportunist hopes that litigation will establish an asset’s value, value that the opportunist will realize through licensing or other transactional exploitation of the copyrighted work. Examples of such contemporary opportunists include the creators of tattoos, paparazzi, and composers of obscure music. Professor Fromer argues that each of these opportunists exists today because technological change has created new modes of access and distribution that copyright law arguably reserves to copyright holders. She goes on to explain that, in her opinion, courts cannot successfully adjudicate the claims of copyright opportunists by relying on doctrine alone. Instead, courts must use a “robust set of tools” that includes appreciation for how economic and technological reality interact with copyright policy.

Next, Professor Jane Ginsburg of Columbia Law School offers a new take on the value of the copyrighted work for purposes of fair use. As she describes, a conventional understanding of value within fair use leans heavily on a market-based conception of value. A work’s value is the revenue associated with actual or potential licensing. Professor Ginsburg argues that courts should adopt a broader understanding of value, one that recognizes how works bring value to copyright holders without revenue. For example, a copyright holder might distribute a work freely to increase his reputation, or she might do it as a loss leader. Professor Ginsburg then describes support for this understanding of “value” within the Copyright Act and associated case law.

After this, Professor Herbert Lazerow gives us a detailed look at coownership in copyright. This is an interesting subject because the ownership of copyright by two or more people implicates both federal and state law. Professor Lazerow explains how the two interact, with state law governing most instances of copyright co-ownership with a few notable and important exceptions. In so doing, he provides a detailed look at the different ways in which co-ownership can occur, the obligations co-owners owe to each other, and the effect of co-ownership on third parties.

In our fourth article, Professor Poorna Mysoor of Oxford examines recordation (what American copyright lawyers would recognize as fixation) and its importance under the United Kingdom’s Copyright Designs and Patents Act 1988. She notes that some argue against requiring recordation in order to extend copyright protection to unfixed expression such as the spoken word or improvised music. Professor Mysoor rejects this claim because, in her opinion, recordation is “a necessary requirement in the conceptualization of copyright as a property right.” She makes her case by reviewing the basic law of the United Kingdom, explaining why the doctrine exists, and then explaining why copyright protection cannot exist without it. By doing so, Professor Mysoor provides not only insight about European law, but also a rich background for reflection on the use
of fixation in American copyright law.

Finally, the issue closes with a tribute to a long-term and revered member of the Copyright Society, Professor Howard Abrams. As many readers know, Howard served the Society in many ways and was a constant presence at Annual Meetings. In addition to a brief appreciation of his career and work, we have chosen to reprint one of his articles as a way of remembering his keen and distinct scholarly voice.

As always, I look forward to your comments and suggestions.

Alfred C. Yen
Professor of Law and Dean’s Distinguished Scholar
Boston College Law School
alfred.yen@bc.edu