Unplanned coauthorship refers to the process by which contributors to a creative work are treated by copyright law as coauthors of the work based entirely on their observable behavior during its creation. The process entails a court imputing the status of coauthors to the parties ex post, usually during a claim for copyright infringement. For years now, courts and scholars have struggled to identify a coherent rationale for unplanned coauthorship and situate it within copyright’s set of goals and objectives. This Article offers a novel framework for understanding the rules of unplanned coauthorship using insights from theories of shared intentionality. Unplanned coauthorship enables courts to balance copyright’s commitment to authorial autonomy and individual ownership against the demands of cooperation, collaboration, and information sharing that the creative process invariably entails. Through these rules, copyright law recognizes that certain forms of creativity depend entirely on mechanisms of collaboration for their continuing existence. In such instances of collaborative creativity, the very process of collaboration provides creators with additional and independent reasons for their creative endeavor, a motivation referred to as the “collaborative impulse.” Characteristic of all joint activities undertaken with a shared intention, the collaborative impulse derives from a motivational commitment to the joint task that collaborating creators develop, causing them to pay equal attention to both the means and the ends of their creativity. The Article shows how the rules of unplanned coauthorship allow copyright law to nurture these domains of collaborative creativity by protecting the collaborative impulse and simultaneously rendering it fully compatible with copyright’s utilitarian goal of promoting creativity through exclusive rights.
Lambert Revisited
This Article is the first of a two-part series on the vagueness doctrine. The objective of this first step is to situate the well-known Lambert case within that doctrine. Lambert v. California is a fifty-seven year-old chestnut involving a Douglas-Frankfurter debate in terms that can charitably be called obscure. Many have taken the case to involve, at bottom, a notice principle requiring what this Article calls socialization—the idea that to be fair the criminal law should emit warning signals that will alert the conscience of the average citizen to potential illegality. The Article explores the consequences of elevating that idea to a freestanding constitutional principle, and rejects that conception of the case because it would insert the Constitution too far into ordinary criminal law doctrine. Instead, the Article concludes, even though Lambert involved an ordinance whose language was perfectly clear, the case should be regarded as turning on core vagueness principles. When thought of in this manner, moreover, it can be taken as a partial, if not complete, elucidation of the “fair notice” branch of that doctrine. The second Article in the series will integrate this insight into a more complete view of vagueness itself.
An Empirical Analysis of Sue-and-Settle in Environmental Litigation
This Note aims to expand understanding of the sue-and-settle controversy by providing useful data, analytics and commentary from which courts, policymakers and academics may further their exploration of the process. This Note applies empirical analysis to sue-and-settle under the Clean Air Act, Clean Water Act and Endangered Species Act under the current Administration. It explores the principal charge against the process: that it has the effect of secret, backdoor rulemaking; and, it finds that a more nuanced analysis than that conducted by leading critics of the practice should properly distinguish between two very different uses of the practice—one deleterious, the other beneficial. Accordingly, the Note concludes that only with the former use should the process give cause for alarm, and that such deleterious uses make up only an extremely small fraction of sue-and-settle cases. Thus, wholesale destruction of the process is unnecessary; targeted remedies are more appropriate.
In the war over sue-and-settle, this Note does not completely dispel the fog by providing a definitive account of the causation behind the explosive growth in the process. But it does, however, provide further illumination of the battlefield, better informing the ongoing debate.