Private Law Theory

ABSTRACT
Much of modern copyright law is cloaked in the language of neutrality. No matter how successful or popular, all copyrighted works are shielded by the same rights. In theory, our system neither celebrates nor condemns commercial success. All works are created equal under the law. This standard account is radically askew. In reality, questions of commercial success pervade virtually every aspect of copyright doctrine. Courts consider whether the work is commercially successful in cases spanning a range of doctrinal contexts, including the scope of protectable subject matter, the standards of liability, the limits of fair use, and the range of available remedies. Commercial success looms over all of copyright law – and its dominion is swelling.

This Article brings together doctrine, history, and theory to analyze this increasingly important phenomenon. It canvasses a variety of seemingly disparate doctrines that tap into notions of success in both direct and subtle ways. It grapples with the practical and normative implications of our success-driven system and asks whether and under what conditions courts should take account of the work’s success. After demonstrating that questions of commercial success scaffold every major copyright doctrine, I argue that these rich patterns resist the standard heuristics used to conceptualize our copyright regime as a uniform and neutral body of law. In the end, this Article reveals that success plays a surprisingly important and complex role in copyright jurisprudence, implicating profound questions about the relationship between markets and incentives, the structure of copyright doctrine, and the proper scope of copyright law.

Shisha, Shani, Commercializing Copyright (February 8, 2024), Boston College Law Review, volume 65, 2024.