The Right of Reattribution

Brian L. Frye

Research output: Contribution to journalArticle

Abstract

Usually, authors love their works as their children: fiercely and unconditionally. Indeed, many authors refer to their works as their “children,” and some show far more solicitude for their aesthetic children than their actual ones. Of course, authors can also be cruel to their works. As William Faulkner famously observed, “In writing you must kill all your darlings.” But even such merciless culling doesn’t prevent authors from loving what survives. If anything, their love only deepens with each sacrifice.

But even the filial bond can be broken. Many disappointed parents have disowned their prodigal children. Sometimes the relationship can be mended, but often it can’t. Why should authors be any different? Authors and their works can also grow apart. Perhaps the work was a product of the author’s youth, long since forgotten. When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.” Perhaps the author adopted a new style, and no longer feels a connection to older work. Or perhaps the author is just ashamed of a particular work. Happy authors all love their works in the same way, but unhappy authors hate their works in different ways, for their own reasons.

So, what should be done with prodigal works? Under the Copyright Act, authors have the exclusive right to publish their works, but no obligation to publish. Plenty of works fall into desuetude for lack of public interest. But what about works the public loves and the author despises?

In some countries, copyright gives authors a “right to withdraw” works they disapprove. While the United States has no right to withdraw, it does have a practical equivalent. Authors can simply stop publishing a work, and refuse to allow anyone else to publish it. 5 Of course, existing copies will still circulate. Still, restricting the supply of a work can still help reduce its public profile. After all, out of sight, out of mind.

But there’s a problem. The whole purpose of copyright is to encourage authors to create works of authorship for the public to consume. Indeed, the government uses copyright to pay authors to produce works. When authors refuse to publish works, they’re going back on the bargain. Of course, it probably doesn’t matter if authors refuse to publish works no one wants to consume anyway. But it’s more troubling if authors refuse to publish works consumers want, leaving money on the table.

Sometimes, authors refuse to publish a work because it harms their brand. In any other market, they could just sell the product line to someone else. But attribution sticks like glue, so it’s rational for authors to prohibit publication, so long as the loss of potential profits is offset by gains in goodwill. The loser is the public, which pays a higher price for access to the work.

Thankfully, there’s a solution: the right of reattribution. The transaction cost is the stickiness of the right of attribution. So, the government can easily solve the market failure by making attribution alienable. Presto! The author can divest the objection-able work by reattributing it to a different author. The public will have access to the work at the market clearing price. And market equilibrium will be restored. Hallelujah!

Original languageUndefined/Unknown
JournalLaw Faculty Scholarly Articles
StatePublished - Jan 1 2021
Externally publishedYes

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