Article by Timothy J. McFarlin
In gospel music they say, “If you ain’t shouted the people, you ain’t done shit.” Shouting the people—how good someone is at making an audience react—is the essence of authorship. Shouting the people is also the reason for copyright. If not for a hungry audience, law would have little reason to grant authors the right to control copying of their works. Without demand, why protect supply? This notion of audience as the reason for copyright has deep roots in the law’s origins, and courts have long looked to the “reasonable audience member” in disputes over infringement and fair use to help define the proper scope of copyright protection. But in 2000, in Aalmuhammed v. Lee, the United States Court of Appeals for the Ninth Circuit injected “audience appeal” into the test for deciding if a contributor to a work is one of its authors.
The ruling's potential impact on copyright is far-reaching. In sum, using audience appeal to judge authorship injects uncertainty and manipulability into authorship’s definition, thereby increasing subjectivity in the courts, decreasing the incentive to innovate, and eroding creators’ deeply personal connections to their expression. In other words, shouting the people may be the essence of authorship, but the audience is fickle, and rights—including copyright—should be more stable. This Article therefore (1) sheds needed light on courts’ use of audience appeal in determining authorship, including solving the puzzle of Judge Learned Hand’s oracular pronouncements on the subject; (2) argues that audience appeal should not be so used; (3) advises courts—if they remain inclined to use it—on how they might best do so; and (4) explores the dynamics of authorship and audience in copyright’s past, present, and future—concluding with how audience appeal might one day be predicted by a Universal Copyrightability Algorithm.
About the Author
Timothy J. McFarlin: Assistant Professor, University of La Verne College of Law..
93 Tul. L. Rev. 443 (2019)