In his fascinating 2020 article in Cardozo Law Review, entitled Copyright and Attention Scarcity, Jake Linford provided a new justification for copyright law's barriers against derivative content—saving the overtaxed attention spans of copyrights' beleaguered audience. If readers and viewers got as much unauthorized derivative works as they wanted, Linford suggested, they would be unable to find the time and energy to read, watch, and sort through all of the derivatives available to them. By giving original authors the right to control derivative works, copyright law protects the audience from content overload.
I loved the article and really appreciated Linford's creative use of the literature on "attention scarcity." That said, as a viewer and reader, I am not sure I like where the thesis leaves me. Speaking for myself, when I am tired and overloaded, the last thing I want is more originals. I want to return to my old favorites through a new lens; I want a sequel, a prequel, or a re-make. Whether these derivatives are authorized or un-authorized matters less to me than whether they are familiar and easy to get into without a lot of legwork. (I do want to know whether the content is made by or authorized by the original creator. But trademark law protects consumers from being misled as to source. Thanks to trademark law, I would know when the newest Star Wars is authorized by Disney and when it's not.)
I am about three years behind with this post. My excuse, besides the pandemic, is that I felt it necessary to watch all seasons of Cobra Kai, along with the films in the original Karate Kid franchise, plus the entire library of Disney Plus, to fully research a response.
The Derivative Works Right
Copyright law's derivative works right gives authors the exclusive right to make "derivative" works that "employ[] preexisting material", such as sequels, translations, and adaptations. For example, the author of the bestselling book The Hunger Games, Susan Collins, can prevent others from releasing sequels or film versions of the book. What is more, infringing derivative works are not themselves copyrightable. So no matter how creative an infringing sequel to the The Hunger Games is, it cannot be protected without Collins' permission. And in fact Collins could sweep in and use that infringing sequel without recrimination. This is different from in patent law, where improvement patents, covering improved versions of patented inventions, are legal.
The conventional justification for a right to exclude for derivative works is that it bolsters the economic incentive function of copyright. As Jane Ginsburg explains, vesting first authors control over derivative works can both encourage creation of those derivative works and encourage investment in the original work itself. Some have also argued a derivative works right protects the moral rights of authors.
Some scholars, like Rebecca Tushnet, have pushed back on this premise. For instance, in her 1997 article on fan fiction, which is a common form of derivative work, Tushnet argued that, historically, "less-than-absolute copyright" has not necessarily hurt copyright owners financially and has produced enormous benefits for fans. Tushnet gave the example of Paramount, whose decision to permit unauthorized fan fiction adaptations within the Star Trek universe did not negatively impact the market for the original show or authorized spin-offs (Next Generation, Deep Space Nine, Voyager, Enterprise, New Worlds...etc.). Indeed, she observes, "[a]n official Star Trek novel is sold every thirteen seconds[.]" (Tushnet, 672).
Linford's "Attention Scarcity" Justification for the Derivative Works Right
Enter Linford. He argues that, in fact, opening the flood gates on unauthorized derivatives, even for seemingly innocuous purposes like fan fiction, would be bad for consumers of content, as well as for content creators, because it would overload their already-taxed attention.
"[I]f attention were an unlimited resource," Linford writes, "then more information would always be a net good." But when attention is scarce, more is not always better. If new entrants were free to use original works derivatively, they would be tempted to just keep selling re-mixes of what consumers already know, using copyrighted works as "[a] tool to harvest attention." Consumers would be swamped with derivative offerings from diverse sources, their brains overloaded with too much derivative content.
Copyright law, Linford argues, mitigates this problem in two ways. First, by eliminating infringing (non-fair use) derivatives, copyright creates legal barriers for new entrants, so that aspiring creators of unauthorized sequels and the like can't make them without risking getting sued. Second, copyright provides a de facto "quality" signal to consumers, directing them to one or a few officially authorized options. Linford thus defends giving copyright owners rights to control derivative works. (Though he stops short of advocating for an increase in the strength of the derivative work right, he seeks to maintain the status quo).
Linford's thesis has many precursors. For example, Christopher Yoo and Joseph Fishman have justified the derivative works right on similar grounds, highlighting the benefits of exclusion for exclusion's sake. In particular, Linford's arguments echo those of Michael Abramowicz, whose' 2005 article applied racing theory (used to justify broad patent rights) in order to justify copyright's derivative works right. Abramowicz argued that content producers often have strong incentives to create close substitutes for popular existing works. A strong derivative works right helps reduce opportunities for "demand diversion" and reduces wasteful races to create derivatives following a successful original work. (Abramowicz, 360).
This is similar to Linford's thesis, except whereas Abramowicz emphasized the problem of wasteful racing among derivatives, Linford looks to the literature on attention scarcity and the effects of content overload on consumers.
(To state the obvious, Linford is also not alone in discussing the theme of information abundance and implications thereof. One such work — not coincidentally — shares this blog post’s title, courtesy of Mike Madison, Kathy Strandberg, Madelyn Sanfillipo, Brett Frischmann, https://www.frontiersin.org/articles/10.3389/frma.2022.959505/full.)
Reasons for Skepticism
I am initially well disposed towards Linford's thesis, because I personally feel overloaded by the amount of creative content at my disposal. There are, however, a few reasons I am skeptical.
1. Does A Derivative Works Right Really Mean Less Content?
First, one conventionally-stated purpose of the derivative works right is to encourage owners to produce more derivative content, not less. One way this can happen is through controlled licensing. As William Landes and Richard Posner discussed, a derivative works right permits efficient licensing of numerous derivatives to third parties. So the derivative works right might mean more derivative content, not less. To give an obvious example, there have been, like, fifteen sequels or prequels to Star Wars since the original film came out in 1977. I shudder to say this, but my attention feels sapped by authorized Star Wars content.
Second, even with the derivative works right, there can still be enormous quantities of legal "close substitutes" cluttering the marketplace. For example, after the The Hunger Games books and film came out, legal close substitutes like Divergent and The Maze Runner followed. Those are similar but legal, copying at worst ideas and scènes à faire. But they definitely free rode on the market interest generated by The Hunger Games, and arguably produce just as much clutter as infringing derivatives.
2. Isn't a Higher Originality Standard the More Obvious Solution?
Relatedly, why would the optimal solution to over production of derivative content be a strong derivative works right rather than a higher originality standard for derivatives? Non-infringing derivative works can be independently copyrighted if they are sufficiently original. But what if the rule were clearer that a derivative work can only be copyrighted if it introduces original elements on a heightened standard, more than a "modicum of creativity," as is usually required? Judge Posner suggested something of this nature, positing in Gracen v. Bradford Exchange that "a derivative work must be substantially different from the underlying work to be copyrightable." Raising the bar on derivative originality might streamline what gets copyrighted, just as "obviousness" is thought to streamline what gets patented.
In response, Linford suggested to me that even without the prospect of derivative copyrights, newcomers would still jump in to fill the void, free-riding off the demand generated by originals, so we would likely see more redundant derivatives even without the opportunity to copyright. That may be so. But I still think it's an open question whether the solution to "too many derivative works" is giving copyright in derivative works only to authors, versus giving out less copyright for derivative content period.
3. What If Derivative Content Is Easier To Absorb Than Original Content?
Even assuming Linford is right that giving authors control over derivative works leads to less derivative content, I am not sure this helps over-taxed consumers in the age of attention scarcity. Linford implies that opening the floodgates on derivative works would overwhelm consumers by giving them, so to speak, too much of a good thing. "Congestion of attention resources," he writes, "will increase as the number of firms demanding attention increases..." Consumers will become overloaded with all the derivatives at their disposal.
But this ignores the possibility that derivative content is less taxing to read or watch than original content. My intuition is that it takes people less time and energy to absorb derivative content because it is familiar. The premise and characters are already known. The details differ, but the general outlines are the same. Personally, when I have less time and attention to give, my go-to is often derivative content. I don't have the energy to get into something new. So I read the latest sequel. I watch Season 7. I check out a re-make of an old film. I find that it takes less of my attention to absorb these. It's as if they fit more readily into the congested hallways of my short-term memory.
So this leads me to ask whether people with taxed attention spans might actually benefit from a higher proportion of derivative content, whether perhaps in the age of attention scarcity they prefer sequels and re-makes, simply because they take up less mental space. I don't know the answer. But if wholly original content is more taxing on attention spans than derivative content, this casts doubt on the thesis that reducing derivative content alleviates attention overload.
4. Isn't the bigger problem trademark infringement?
One of the big problems Linford's thesis addresses is source confusion: falsely marketing a derivative work as connected to the same source as the original. But, as Linford concedes, this is conventionally seen as a trademark law issue, not a copyright law issue. Thanks to trademark law, in a world without derivative copyright, anyone could produce a sequel to Karate Kid (1984). But trademark law would prohibit them from suggesting they are the makers of, or affiliated with, the original Karate Kid.
Linford suggests that trademark law might be a worse solution to the source-confusion problem in this context than using copyright law to prohibit unauthorized derivative content because trademarks don't expire after a term-of-years, whereas copyright does. This point falls a bit flat to me. The copyright term is seventy-plus years for solo-authored works and over a hundred years long for works-made-for-hire. More importantly, trademark protection would be a lot weaker in this context than copyright. Without the copyright derivative works right, a newcomer could still make the derivative work, using the original characters, plot elements, imagery, and so on. They would just have to be very clear about the source. (It is also worth noting that trademark protection can be abandoned when the original work is deliberately taken off the market, so that could end trademark protection altogether for original works that are deliberately taken off the market. For example, if a streaming service takes a show down for good, then trademark protection might end, even if copyright protection continues for the usual term, subject to fair use.)
The upshot is that in most cases, the trademark-only solution would open up far more room to make derivatives. On the other hand, Linford would presumably point out that this is precisely the problem: Too many re-makes.
***
To conclude, I loved this article and learned an enormous amount reading it and researching this response. Many thanks to Linford for motivating me to delve into the fascinating world of the copyright derivative works rights. I look forward to the next one.
