ABSTRACT
Ours is an era of instant authorship. Authors today need not take any affirmative steps to claim copyright protection. Instead, copyright attaches to an original work of authorship the moment it is fixed in some tangible form. But this system of unconditional propertization bears little resemblance to copyright’s original statutory scheme. Historically, copyright protection was conditioned on compliance with certain procedural formalities, such as registration, deposit, and notice. Early courts, in turn, demanded scrupulous compliance with these formalities; even minor departures from the requisite procedure led to copyright forfeiture. This familiar story of draconian formalities and unforgiving courts is a longstanding staple of the copyright canon.
It is also critically incomplete. Drawing on an exhaustive analysis of nineteenth-century case law, this Article uncovers copyright’s long-lost history of procedural pragmatism – a decidedly flexible approach to copyright formalities. This strain of pragmatism dawned at a time when authors struggled to keep up with copyright’s procedural framework: while publishers usually took steps to comply with copyright formalities, many authors failed to do so. And courts, in their zeal to prevent forfeiture, crafted a number of legal fictions to wrest copyrights out of the hands of noncompliant authors. When an author failed to clear formalities, these courts found that someone else – typically, a publisher – was the formal copyright proprietor. That was the only way, courts intuited, to prevent forfeiture at the hands of a noncompliant author. Based on these findings, this Article excavates copyright’s forgotten history of procedural flexibility, explores its origins, and considers its implications for modern doctrine.
Shisha, Shani, The Folklore of Copyright Procedure (August 4, 2022). Harvard Journal of Law and Technology, volume 36, 2023.
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