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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

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University of California, Irvine School of Law




This Article explores the justification for copyright from two sources: seminal court cases and accounts from photographic authors. It takes as its premise that copyright protection requires justification, not only because creative work is frequently made and disseminated without reliance on copyright, but because, in the age of digital technology, practices of creative production and dissemination have sufficiently changed to question the existing contours of the forty-year-old Copyright Act. Why read the photographers’ stories alongside the court cases? Each present contested views of copyright’s relation to creativity. At times, the photographers’ accounts and the case law strengthen and reinforce each other; other times, their differences challenge the other’s coherence. Reading the accounts side-by-side further identifies synergies that may serve as moral confirmation for winners in the copyright system. At the same time, comparisons reveal opportunities for resistance by those who contest copyright law’s explanation of how it promotes creativity as a function of “progress.” The social structures made legible through the overlapping stories of creativity, copying, and copyright delineate in diverse ways the object of value (“copyright” and “original works of authorship”) as well as the anxieties regarding digital age trends of widespread dissemination and verbatim copying. Simultaneously, these same stories signal an expectation of access to the tools of distribution and of opportunity to practice one’s own art, undermining copyright’s exclusivity and value associated with it. Understanding this complex position regarding digital reproduction, creative practices, industry changes, and professional opportunity may be useful for reforming copyright in a manner that includes rapidly evolving aesthetic practices and diverse creators of the future.

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