Abe Lincoln was fond of relating a story about a lawyer who tried to argue that a calf had five legs by calling its tail a leg. The folksy Lincolnian upshot was that this lawyer not only lost, but also looked foolish in the process, because simply calling a tail a leg does not make it so.
Mark Lemley’s Authoring While Dead spins a copyright version of Abe’s old yarn. Songwriters have recently begun listing as co-authors of their musical works artists who cannot be regarded as “authors” under any remotely plausible reading of the Copyright Act. Lemley’s vivid article explores the origins and rapid ascension of this industry practice. He explains with welcome drollery why this is the copyright equivalent of calling a tail a leg. He further offers a caution why what may seem like mere formalism, in fact, poses serious problems for copyright law.
The first thing I liked (lots) about Authoring While Dead was that I discovered something that was entirely new to me: In the past couple of decades, songwriters have responded to allegations of copyright infringement by offering to settle such disputes, not only with cash or an ownership interest, but even co-authorship credit to the accuser.
What makes Lemley’s article particularly engaging is that it’s chock full of colorful examples of so-called “interpolation credit.” I’ll give one of the most extreme examples here: The lyrics of The Killers’ Run for Cover includes the phrase “redemption song.” Run for Cover is not a reggae song, and it bears no musical or lyrical resemblance to the classic reggae anthem Redemption Song. Yet, when the estate of Bob Marley—who once authored Redemption Song—made (legally unavailing) noises about copyright infringement, The Killers agreed to add Marley as a co-author of Run for Cover. By doing so, The Killers apparently conceded that their 2017 track was a collaboration with an artist who died in 1981, when the band’s members were all about five years old.
Authoring While Dead explains with a welcome dose of wit that tossing around authorship credit to any artist who may have influenced you is not at all what the Copyright Act means by the term. “Author” is not defined in the statute and so remains enigmatic in some respects, but it is well understood that it means that the individual intentionally contributed some protected expression to the work of authorship. Joint authorship, in turn, means that *all* contributors to a work agree that they are consciously aware of the act of creation and buy in to the collaboration giving rise to the work. A decades-old anthem might inspire or influence a more recent composition, but that doesn’t make the author of the earlier work a conscious contributor to the creativity embodied by the new one.
The legal analysis in Authoring While Dead is straightforward, thanks in large part to Lemley’s lucid takedown of the false elision of influence and authorship. Somewhat harder, though, is sorting out the objection to this trend. If The Killers want to say Bob Marley is a co-author of Run for Cover, and the Marley estate is good with it, why should anyone object?
Authoring While Dead does an outstanding job of laying out why objecting to this practice is more than just a formalistic quibble. Adding “authors” who aren’t statutorily valid authors to a work upends the length of copyright terms, which are measured by authors’ lives. It muddies the termination of transfer right by introducing new claimants who may seek (or resist) cancellation of licenses of the work. And it makes a hash of licensing, royalties, and other rights allocations, especially because newly added authors often claim an outsized share of copyright ownership.
The deeper problem that Lemley identifies with “interpolation credits” is that as pervades the music industry, artists and labels and music publishers may begin to treat this fractured, expanded notion of authorship as valid. Norms can, and sometimes do, become industry standards even when they are not compelled by law. The film industry, for example, does life story rights deals with subjects of docudramas, even though no body of law creates an exclusive right in the facts that comprise one’s life. Here, too, as more and more artists and entities seek “interpolation credit” and demand authorship as compensation, industry practice threatens to become more unmoored from copyright law.
Authoring While Dead proposes a plausible solution, one that begins with Lemley asking what explains the surge in desire for “interpolation credit.” He locates the answer in a notion foreign (literally and figuratively) to U.S. copyright law: moral rights. The desire to insist on attribution is not rooted in something practical like seeking more royalties. It’s an artist’s understandable desire to be recognized as an influence on later work. To that end, Lemley suggests that the solution to the problem should be giving owners of earlier works “inspiration credit.” This would be a right to get credited without the later artist having to cede authorship or ownership—a right that looks a lot like the kind of attribution mandatory in continental legal systems.
This solution has promise, but my view is that Lemley is being too generous to the parties demanding interpolation credit. Sure, many or even most of them just want to be recognized. But from reading about the dozens of disputes involving interpolation credit catalogued in Authoring While Dead, it sure seems like a lot of them are also motivated by the desire to take advantage of what seems like a juicy new way to squeeze money out of a copyright catalogue.
Still, Lemley’s proposal seems promising precisely because it would force the right kind of choice on those seeking attribution. If what you want is just due recognition, then seek inspiration credit. If you deserve it, the law will back you up. No legal process is free, but the entities and older, wealthier artists who so often seek this form of credit can likely afford it. And if artists aren’t willing to pursue this form of credit, that tells you that recognition wasn’t that valuable to them in the first place. Of course, this leaves seekers of inspiration credit with (possible) recognition but no money. But it’s not like there’s no option there: If what authors really want is money, then assert a successful copyright infringement claim. But if your only basis for asserting infringement is some diffuse notion of “influence,” you’re going to lose. In suggesting a formal option for securing credit then, Lemley’s proposal would channel parties motivated by a desire for recognition versus a desire for profit into the place each belongs.
