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Synchronization (sync) licenses are required for works in which music is synchronized to video and generally have high transaction costs because they must be individually negotiated. Traditionally, sync licenses were obtained by sophisticated parties for movies, television, commercials, and the like. But digital platforms like TikTok have brought sync licenses from obscurity into the hands of every person with a smartphone.

This transformative innovation has created new issues for copyright law. First, user- generated content (UGC) created by individuals and shared on the internet via social media platforms or websites may require sync licenses that are cumbersome to negotiate and overinclusive. Private agreements between platforms like TikTok and record labels and publishers usually fill the gap, allowing most users to play music with their videos free from concern about copyright infringement. However, these licenses do not account for copyright’s fundamental balance between access and exclusivity because they are overinclusive: Some content on TikTok may be covered by the doctrine of fair use, in which case no license is required. Fair use is an affirmative defense to copyright infringement that permits the defendant to use the copyrighted work without paying the rightsholder.

Second, TikTok’s agreements with labels and publishers could be eroding fair use. The ex-post nature of fair use means that risk-averse parties, when confronted by a situation in which the viability of their claim is unclear, are likely to obtain a license not required by law. This in turn can narrow the scope of fair use because the existence of an active licensing market makes it less likely that a court will find a use is fair. Future parties then become less likely to rely on an increasingly dubious fair use defense. In the TikTok context, doctrine about fair use and sync is especially uncertain. The scant precedent in UGC fair use cases appears to be highly fact-dependent, there are few cases that specifically deal with sync rights, and none of those have decided fair use as applied to sync.

This Note proposes a blanket, compulsory license for noncommercial UGC sync as an imperfect solution to help correct the balance of copyright in the digital platform era. The compulsory license would return review of public copyright law back to Congress and courts and prevent private ordering from curtailing fair use. Further, valuable creativity would be protected because rightsholders would not be able to withhold permission for use of copyrighted material.

Federal copyright law limits the copying of certain informational goods. But can state laws, and in particular state contract law, also do that? Until recently, the dominant approach was that they could. However, two recent Second Circuit decisions seem to suggest that only copyright law is allowed to do it. In other words, the Second Circuit assumes that copyright law is the only law that can regulate copying.

The Essay argues that the Second Circuit’s approach, while shared by several other courts, is wrong. It is in tension with the text and history of the Copyright Act and with the desirable relationship between federal IP law and state commercial law. This relationship is best described as symbiotic, but the Second Circuit has put those laws on a collision course. In doing so, the Second Circuit has ignored the practices of multiple industries and the ways in which copyright law and contract law work together. Indeed, state laws, in general, and contract law, in particular, have always regulated copying. Those rights and those contracts play a crucial role in our economy. Holding them unenforceable, as the Second Circuit did, might therefore disrupt well-established legal mechanisms without promoting identifiable federal policies.

Commentary about the Supreme Court’s 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision’s seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board (“CRB”) unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB’s composition did not offend the Appointments Clause as long as Copyright Royalty Judges (“CRJs”) were removable at-will. But when the Court invalidated the selection process for administrative patent judges on a similar theory in Arthrex, it also rejected the D.C. Circuit’s remedy of requiring at-will removal, making the CRB unconstitutional—again. This problem is not insoluble, however, and the best available option would be to make CRJs subject to presidential appointment with Senate approval. This Essay highlights this novel insight regarding Arthrex, proposes legislative and judicial solutions to the problem of constitutionality, and reflects on the broader implications of these claims for copyright’s administrative law and Appointments Clause jurisprudence.

Memes are the paradigm of a new, flourishing creativity. Not only are these captioned images one of the most pervasive and important forms of online creativity, but they also upend many of copyright law’s fundamental assumptions about creativity, commercialization, and distribution. Chief among these assumptions is that copying is harmful. Not only does this mismatch threaten meme culture and expose fundamental problems in copyright law and theory, but the mismatch is even more significant because memes are far from an exceptional case. Indeed, memes are a prototype of a new mode of creativity that is emerging in our contemporary digital era, as can be seen across a range of works. Therefore, the concern with memes signals a much broader problem in copyright law and theory. This is not to say that the traditional creativity that copyright has long sought to protect is dead. Far from it. Both paths of creativity, traditional and new, can be vibrant. Yet we must be sensitive to the misfit between the new creativity and existing copyright law if we want the new creativity to continue to thrive.

Photography has exploded into the most accessible mode of creative production of
our time: Over one trillion photographs will be taken this year. Yet despite the
medium’s dramatic expansion, catalyzed by advances in technology, the copyright-
ability of photography remains controlled by a Supreme Court precedent that is
over one hundred years old, Burrow-Giles Lithographic Co. v. Sarony. The long-
standing interpretation of Burrow-Giles in the lower courts has rendered nearly
every litigated photograph copyrightable, even though the factual foundation of
Burrow-Giles is remarkably inconsistent with how most photography is produced
today. With protracted, low-value, and often frivolous copyright litigation over
photographs increasingly clogging up federal courts’ dockets, it is high time to
reconsider photography’s copyright.

This Note argues that a revitalization of copyright’s merger doctrine—long ignored
or dismissed in the realm of photography’s copyright—could be the vehicle for this
reassessment. Theorizing photographs as mergeable does not render the medium
per se uncopyrightable, but captures the spirit of the Supreme Court’s now 150-
year-old instruction to permit photography’s copyright, while correcting for
changes in photographic technology to better uphold the Court’s simultaneous
mandate that “ordinary” photographs should not receive copyright protection.

Three-dimensional (3D) scanning technology presents cultural organizations with new opportunities to share their collections with a wider audience online, and conserve and archive art objects and antiquities for safekeeping. However, this technology can also present legal challenges when institutions like museums assert ownership, in particular employing copyright notices, over digital copies of public domain art and antiquities in their collections. The public domain comprises the collection of shared works that are free from legal barriers imposed by copyright law. When institutions attach copyright notices to public domain works, the legal language, even if unenforceable in court, chills the public’s use of these scans for far-ranging educational, artistic, and commercial purposes. This Note examines the current uses of 3D technology by cultural institutions and analyzes the current doctrine guiding copyright of digital models. It then discusses some of the reasons why, despite the best reading of the caselaw, cultural institutions continue to assert ownership over and restrict access to 3D models of public domain art. This Note proposes an American analogue to Article 14 of the European Union’s Directive on Copyright in the Digital Single Market. The proposed amendment to the Copyright Act would provide needed clarity to cultural institutions and the public, affirming that public domain works cannot receive copyright protection when reproduced in a digital format. A clear statement rule would reduce the chilling effect by discouraging copyright notices and restrictive terms of use on digital copies of public domain art and antiquities, in turn encouraging more institutions to provide open access to their digital collections.

When Congress passed the Copyright Act of 1976, it enacted Section 203, which allows authors to terminate transfers of the copyright in their works thirty-five years after the transfer. Congress intended this to be the author’s “second chance” after having made a disadvantageous first deal, either due to a lack of bargaining power or an inability to predict the work’s future value. Within the music industry, the impact of Section 203 has been contested, with some arguing that it will fundamentally shift the balance of power between recording artists and songwriters (the authors) and record labels and music publishers (the transferees), and others expecting that the provision will provoke contentious litigation of Section 203’s statutory exceptions. Because the first works reached termination eligibility in 2013, the effects of Section 203 remain unclear. In this Note, I argue that, even if an author circumvents the statutory exceptions, Section 203 is largely ineffective because several factors prevent a clean severance of the relationship between the author and transferee. Complications related to jointly authored works, the jurisdictional limitation to the United States, and contract provisions that survive post-termination create a situation where the author may regain his or her U.S. copyrights but will remain tethered to the transferee. Although an author could theoretically self- administer his or her U.S. copyrights or transfer these rights to a new transferee, the economically rational option is to retransfer the copyrights to the original transferee. This result precludes any significant impact on the music industry’s power dynamics, despite Congress’s (and the authors’) initial hopes that Section 203 would be a tool for change.

Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

Copyright law itself creates strong incentives for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech.

Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. In addition, Congress should further protect the public domain by creating a national registry listing public domain works and a symbol to designate those works. Failing a congressional response, there may exist remedies under state law and through the efforts of private parties to achieve these ends.

New technologies such as the VCR and Google Book Search can change the way copyrighted works are used, thereby making their innovators rich. Copyright owners are aware of these riches and often strategically sue the technology companies with the aim of gaining a share of the money. This dynamic—an innovator investing to create a new technology and a creator of a copyrighted work then suing for her share of the profits—creates an investment incentive problem. The dual goal of promoting the efficient creation of both new copyrighted works and new technologies that augment those works requires us to choose a legal rule that divides the gains from these new technologies between authors and innovators. The fair use doctrine—the statutory rule that allows some types of copyright infringement—is the legal rule that is used to do this dividing. However, economic theories of copyright law do not contain an analysis of investment incentives. This Note analyzes the effects fair use has on the incentives to create copyrighted works and to invest in technologies that affect those works.