The US Constitution gives Congress the power to grant rights to ‘Authors’ for their ‘Writings’. Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright attaches to the original, fixed, and minimally creative form or manner in which an author creates mental effects.
After setting out the theory, this article applies it to a series of current copyright disputes. My authorship theory both expands and contracts the scope of potentially copyrightable works. Some media that have previously been excluded from copyright law, such as gardens, cuisine, and tactile works, now fall within the constitutional grant of rights. By contrast, aspects of copyrightable works, including photographs, taxonomies, and computer programs, may not constitute copyrightable authorship. This theory resolves a number of current and recent copyright cases, and it offers a new approach to the emerging challenges associated with artificial intelligence, the Internet of things, and, ultimately, the impending revision of the Copyright Act.
Buccafusco, Christopher, A Theory of Copyright Authorship (September 23, 2015). Virginia Law Review, 2016, forthcoming.