Claiming the Copyright

Abstract

Historically, a copyright holder had to claim. And today there is no doctrinal reason to exempt copyright from claiming. I offer a modest proposal that seeks to balance these interests: a copyright holder should have to claim an interest in her work, and if she doesn’t, users of the work should be able to rely on an innocent infringer defense when facing a claim for infringement. To explore more fully the proposition that a copyright holder should have to claim an interest in her work, this Article progresses in four parts. Part I explores the foundations and reasons for public claiming of the intangible copyright. Part II traces the history of formalities in the United States. Part III outlines the problems that have arisen because we no longer require claiming. And Part IV contextualizes and discusses my proposal to incentivize copyright holders to claim their works and to reinvigorate the innocent infringer defense