The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.
By Liz Velander
Some argue that modern copyright law is decidedly market-oriented, almost entirely justified in utilitarian terms. By promising authors a set of marketable exclusive rights in their works, copyright is believed to incentivize the production of works of authorship. In his new paper, Privative Copyright, Professor Shyamkrishna Balganesh of the University of Pennsylvania Law School explains that this view produces a clear mismatch when using copyright law to remedy noneconomic harms. This paper was work-shopped at CPIP’s Philosophical Approaches to Intellectual Property research colloquium in 2019 and subsequently published in the Vanderbilt Law Review.
“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of an author’s personal identity. They are driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, seeking to redress a particular form of copyright harm that Prof. Balganesh refers to as “disseminative harm.” An example of a privative copyright claim is found in the recent Ninth Circuit case, Monge v. Maya Magazines.
The plaintiffs in the case were a well-known pop music star and her manager, who got married in secret. To maintain the secrecy of the wedding, the couple limited the number of witnesses and took a very limited number of photographs that were intended for the couple’s private use. Through unscrupulous means, the photographs fell into the hands of an individual who sold them to the defendant, a gossip magazine that published them. The district court found for the defendant, concluding that the publisher’s use of the photographs constituted fair use. On appeal, the Ninth Circuit reversed in a rare denial of fair use for a privative claim.
To gain a full understanding of the Ninth Circuit’s opinion in this case, the nature of privative copyright claims in general, and why courts find them troublesome, Prof. Balganesh believes that one must trace the historic evolution of privative copyright claims in Anglo-American copyright law. Modern copyright scholarship is deeply critical of privative copyright claims, believing that the dignitary interests and harms that underlie such claims are best dealt with through privacy law. Prof. Balganesh’s article challenges this dominant view, arguing that privative copyright claims form a legitimate part of the copyright landscape. He demonstrates that protecting an author’s dignitary interest and the underlying commitment to authorial autonomy that motivates these claims have remained important normative goals of copyright law despite the multiple doctrinal variations and updates that the law has gone through over the last three centuries.
Prof. Balganesh explains that in its most basic form, copyright law functions by rendering forms of expressive harm privately actionable. He identifies three types of expressive harm protected by copyright law: (1) appropriative harm, (2) in situ reputational harm, and (3) disseminative harm. Appropriative harm is the primary form of expressive harm that copyright ordinarily centers around, typically resulting from instances of copying. In situ reputational harm originates from the U.S. copyright system’s limited recognition of moral rights protection in the form of the rights of integrity and attribution. A common feature of both rights is they derive from the need to protect an author’s reputation as manifested in the work. The integrity right focuses on protecting against a mutilation or distortion of the work in the recognition that this would impact authorial reputation directly. The attribution right focuses on ensuring that a work is not wrongly attributed to an author, again with the recognition that attributions contrary to the author’s actions and intent to do harm to authorial reputation.
The third category of copyright harm forms the basis of privative copyright claims. It emerges from the mere dissemination or use of a protected work without the creator’s authorization, regardless of the objective utility or value of such actions. The dissemination is harmful not for its economic effects, but instead because of its interference with the author’s unique dignitary interests. In various situations, such as in the Monge case, individuals produce original expression that they intend to keep private or limit to very particular recipients. When fixed in a tangible medium of expression, such as a photograph, the communications become eligible for copyright protection. When such expression is made public, it amounts to a direct infraction of its creator’s personal autonomy.
Prof. Balganesh sees this infraction as two-layered. First, it repudiates the creator’s choice to control whether, how, and when the work is to be shared. Second, it forces the creator to admit to being the author of the work, since elements of the creator’s persona and identity are often apparent on the face of the work. The publication thus forces authorship on the creator, with all its social, legal, and moral implications. Central to disseminative harm is the recognition that the work is personal to its author in a rather distinctive way.
Modern copyright scholarship believes that disseminative harm is best dealt with through privacy law, not copyright law. Prof. Balganesh argues that this approach misunderstands the nature of privative claims in copyright law and the centrality of authorial autonomy that underlies them. He sees it as being drive by three primary concerns: (1) copyright utilitarianism, (2) free speech concerns, and (3) perception that privacy torts are better suited to address dignitary harms.
Prof. Balganesh addresses each of these concerns in turn. First, while copyright law today is often justified exclusively in utilitarian terms, this was not always the case. Privative copyright claims actually predate the utilitarian turn in copyright law. Prof. Balganesh argues that the overt utilitarian turn in copyright law is far from a principled reason to critique the legitimacy of privative copyright claims. To the contrary, normative pluralism has remained a hallmark of the copyright landscape, much like it has for a variety of legal institutions. The logic underlying the functioning of privative copyright claims began to take shape shortly after the passage of the Statute of Anne in 1710. In the three centuries since, they have mutated and adapted to society’s changing concepts of privacy, personal autonomy, and copyright’s coverage of new subject matter.
Second, Prof. Balganesh dismisses the concern that copyright protection for dignitary or privacy interests risks converting authorship into censorship. He explains that copyright has various devices protective of free speech that can come into play in privative claims, the most notable being fair use. Courts use fair use as a stand-in for free speech concerns and balance the fair use factors against the plaintiff’s claims. Given the robustness of these mechanisms, Prof. Balganesh sees no credible free speech concerns with privative copyright claims.
Third, Prof. Balganesh argues that privacy torts are not better suited to protect dignitary interests because the dignitary interests underlying privative copyright claims entail more than just a concern with privacy. They implicate considerations of personality and personal autonomy, in the way of authorial autonomy. Privacy torts, most notably the tort of public disclosure of private facts, focus on representational autonomy and an individual’s ability to control public representations of her persona. They view the denial of such autonomy as emanating from the subject’s choice to keep certain facets of her persona private, and then scrutinize the existence and parameters of that choice rather carefully. The nonconsensual public disclosure of such facts is seen to cast the subject into the public and in turn produce potentially emotional and reputational harm. Privative copyright claims, on the other hand, involve a combination of representational and authorial concerns that an incapable of disaggregation.
With this understanding of privative copyright claims, the Ninth Circuit’s opinion in Monge v. Maya Magazines can be seen in a new light. Recall that the plaintiffs were a celebrity couple who had taken photographs of their secret wedding and the defendant magazine somehow obtained copies of those photographs and published them. The Ninth Circuit’s finding for the plaintiffs demonstrates the difficulty courts have with privative copyright claims and why it is tempting to place them in another legal realm.
The court’s decision was predicated on an analysis of the four fair use factors. Since the fair use doctrine was codified in 1976, courts have grown to place significant reliance on the fourth factor—the potential market harm for the copyrighted work. However, examining the existence (or absence) of market harm for privative copyright claims is an obvious mismatch considering the plaintiff’s work was intended to be kept private. In Monge, the Ninth Circuit refused to acknowledge this mismatch, instead presuming an actual market for the plaintiffs’ photographs because the couple was “in the business of selling images of themselves and had done so in the past.”
The Ninth Circuit’s reasoning is puzzling because, by its own admission, the plaintiffs’ primary (if not exclusive) motivation in retaining the photographs was for their own private use. The photographs were not for sale, they were intended to remain secret. Prof. Balganesh acknowledges that such secrecy has a potential price in that the scarcity renders the information more valuable. But he finds it to be a stretch to presume an actual market for the work.
Prof. Balganesh recommends an alternative approach for courts to use when applying the fair use defense to privative claims. He argues that courts should consider the “dignitary” nature of the work under the second factor, a combination of its being (1) unpublished, (2) private, and (3) embodying expression directly implicating the author’s persona and identity. While this classification should not be dispositive in the overall fair use analysis, it should weigh heavily and influence the interpretation and application of the other factors. The fourth factor, relating to market effect, should be understood as receding in importance once the work is classified as “dignitary” in nature.
Prof. Balganesh’s article makes a strong case for courts to adopt this approach through tracing the historic evolution of privative copyright claims in Anglo-American copyright law. He teases apart the theories behind copyright law and develops a theoretical basis for understanding the workings of privative copyright claims. Privative Copyright is an essential read for a deeper understanding of copyright law.