Copyright Owners’ Putative Interests in Privacy, Reputation, and Control: A Reply to Goold

Boston University School of Law Public Law & Legal Theory paper No. 17-11
forthcoming, 103 Va. L. Rev. Online ___ (2017)
May 15, 2017

Abstract

In a recent article, Patrick Goold argues for five sub-torts to be recognized in copyright, including inter alia protections for privacy, reputation, and 'creative control.’ See Patrick R. Goold, Unbundling the ‘Tort’ of Copyright Infringement, 102 VA. L. REV. 1833 (2016). He suggests that standards for both infringement and fair use might be profitably tailored to each sub-tort.

In this Reply I explore Goold's arguments. I address issues such as: how copyright cases implicitly define cause-in-fact; potential relevance of the plagiarism/copyright distinction; and what implications (if any) for interpreting federal copyright law might flow from the statutory changes that in 1978 transferred most unpublished works from state-law protection into the domain of federal copyright.

I conclude that Goold’s article has advanced our understanding, but that it would be premture for courts to adopt his recommendations. The article makes a persuasive case for neither privacy nor reputation as interests having a proper role in federal copyright. As for his suggested right of control, Goold intriguingly attempts to identify rivalrous uses for which exclusive control might have special importance. This latter effort is particularly worth further exploration as a conceptual matter, with the caveat that any 'control' sub-tort has the potential for furthering undesirable expansions of copyright owners' rights.

Wendy J. Gordon
William Fairfield Warren Distinguished Professor
Professor of Law

Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

wgordon@bu.edu