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Abstract

The author’s exclusive right to prepare derivative works is one of the most maligned doctrines in modern U.S. copyright. Lying at the root of this dissatisfaction is the Copyright Act’s expansive conception of derivative works. The statute defines this term as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.” Courts apply the final clause of this definition (i.e. the “in any other form” language) very broadly, thus allowing the author control over an ever-expanding range of new adaptations. Given the controversy caused by the derivative works right, it is time to consider how other nations deal with this issue. This Article suggests that when reforming the derivative works right, the U.S. should adopt a rule-based approach, like the U.K. In 1976, the U.S. adopted a standard-based derivative work right, hoping this would enable the law to flexibly extend over new, unforeseeable derivative works that may arise in the future. In contrast, the U.K. worried that a general adaptation right may lead to excessively broad law. Therefore, the U.K. narrowly tailored their adaptation right and tried to find flexibility to deal with novel adaptations elsewhere in the copyright system. Using economic literature on the comparative efficiency of rules and standards, this Article demonstrates how the U.K.’s approach was ultimately more efficient. Since enacting the Copyright Act 1976, U.S. law has become excessively broad. The lack of limits on the derivative work concept allowed authors to exclude many new welfare-enhancing works from the market. At the same time, the vagueness inherent in the standard-based approach makes application of the law much more complicated, time consuming, and costly. The U.K. avoided these problems by adopting a precise, rule-based approach to derivative works. As a result, the perturbations surrounding the U.S. derivative works right do not exist in the U.K. Part I of this Article explains why the U.K. and U.S. adopted different approaches to the derivative works right. Part II shows how this decision to adopt different approaches eventually led to different case outcomes. Part III compares the two approaches using economic literature on legal rules and standards. Doing so demonstrates how the U.S. standard-based approach is substantively too broad and procedurally too costly. Part IV considers some potential solutions to remedy the inefficiencies in U.S. law. This Article contends that the U.S. should make a statutory amendment to the Copyright Act and adopt a rule-based approach, much like that found in the U.K. Part V concludes.

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