Chapter 2 examines how copyright’s treatment of collaboration and crediting elevates might over right with problematic consequences for both creative and egalitarian interests. Drawing on the history of the beloved musical Rent, the chapter begins by assessing how the imposition of copyright’s mutual-intent requirement has transformed questions of joint authorship into a referendum on leverage that fails to recognize modalities of creation that are more collaborative in nature and disproportionately burdens individuals with lesser bargaining power, thereby disadvantaging women, people of color, and the poor. Meanwhile, the striking lack of a law of crediting has undermined the efficacy of the copyright regime by stymieing the allocation of capital resources towards the very individuals with the ability to best advance progress in the arts. And, when viewed through the prisms of gender, race, and class, it has also left those at society’s margins most vulnerable to exploitation and disproportionately susceptible to receiving insufficient credit for, and participation in, the spoils of their creative labors. To better align copyright with its policy goals and to promote social justice, our laws of collaboration and crediting must begin to privilege creativity over clout, and not the other way around.

In The Secret Life of Copyright, copyright law meets Black Lives Matter and #MeToo in a provocative examination of how our legal regime governing creative production unexpectedly perpetuates inequalities along racial, gender, and socioeconomic lines while undermining progress in the arts. Drawing on numerous case studies – Harvard’s slave daguerreotypes, celebrity sex tapes, famous Wall Street statues, beloved musicals, and dictator copyrights – the book argues that, despite their purported neutrality, key rules governing copyrights – from the authorship, derivative rights, and fair use doctrines to copyright’s First Amendment immunity – systematically disadvantage individuals from traditionally marginalized communities. Since laws regulating the use of creative content increasingly mediate participation and privilege in the digital world, The Secret Life of Copyright provides a template for a more robust copyright system that better addresses egalitarian concerns and serves the interests of creativity.

With its assessment of cases involving Oscar Wilde, Cindy Lee Garcia, Arne Svenson, and Hulk Hogan and analysis of authorial inquiries raised by slavery daguerreotypes, surveillance art, paparazzi photographs, revenge porn, and celebrity sex tapes, Chapter 1 identifies and critiques the problematic conflation of copyright’s authorship and fixation requirements that functions to deny performers property interests in creative works. Copyright’s authorship-as-fixation regime rests on a faulty premise, betrays copyright law’s role in recognizing and rewarding creativity, and denies authorial rights to a class of individuals – subjects – who provide significant original contributions to works within copyright’s traditional subject matter. Just as significantly, given the dramatic disparities in capital accumulation and control over the tools of creative production and continuing inequalities in the representation of women and persons of color behind the camera, the authorship-as-fixation doctrine has had far-reaching societal consequences by propertizing the white male gaze and giving legal bite to a system of production and ownership that imbues rightsholders with the power to control representations of female and non-white bodies.