Although many copyrighted works are close substitutes for other copyrighted works, there would be many more close substitutes of certain works in the absence of the derivative right, the exclusive right to create adaptations of a copyrighted work. Yet even the derivative right’s defenders identify the suppression of new expression as a cost of the derivative right. In this Article, Professor Michael Abramowicz argues that the conventional defense of the derivative right, i.e., it encourages production of new works, is unsupported, and that the derivative right’s suppression of works that would be close substitutes for authorized derivatives and for one another, may well be welfare-improving. Rent dissipation theory, previously applied by commentators to patent law, suggests two implications for copyright’s derivative right: First, the derivative right prevents copyright races, which would rush authors into creating low-quality adaptations of their works. Second, the right prevents excessive competition among unauthorized derivative works. This theory allows the derivative right to be distinguished more clearly from the reproduction right, potentially helping to resolve thorny doctrinal problems. In addition, this understanding of the derivative right may provide a better justification than the defense previously offered for the long copyright term, because the derivative right increases in importance relative to the reproduction right late in the copyright term.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association. The Court overturned the D.C. [...]