AuthorShisha, Shani

TABLE OF CONTENTS I. INTRODUCTION 62 II. A BRIEF HISTORY OF COPYRIGHT FORMALITIES 68 III. NINETEENTH-CENTURY JURISPRUDENCE 74 A. Equity 74 B. Common-Law Copyright 78 IV. PRAGMATISM IN ACTION 79 A. Copyright Assignment 80 B. Equitable Ownership 92 V. LESSONS 100 A. Normative Assessment 101 B. Doctrinal Drift 109 C. Implied License 114 VI. PRAGMATISM REIMAGINED: MODERN ECHOES 117 VII. CONCLUSION 124 I. INTRODUCTION

Copyright law pervades our cultural universe. Everything "from the crayon sketch of a fourth grader to the novelist's draft manuscript" is subject to copyright protection. (1) Every post, video, or photograph shared on social media is potentially copyrightable. (2) So too are text messages, emails, and memes. (3) And it is easy enough to understand why copyright law has come to dominate vast swaths of everyday life. Copyright attaches to an original work of authorship the moment it is fixed in some tangible form. (4) Authors need not take any affirmative steps to claim copyright protection; original works are protected by default. (5) Modern copyright law is thus a system of unconditional protection--one in which copyright vests automatically. (6) It is now harder to relinquish rights than to claim them. As one commentator put it, our current regime extends "no opportunity to decline copyright's kind invitation." (7)

Yet this robust vision of copyright law is far removed from copyright's original statutory regime. The first federal copyright statute in the United States covered only a limited subset of creative works: maps, charts, and books. (8) And, crucially, copyright protection was initially conditioned on compliance with a host of procedural formalities. (9) Copyright did not attach automatically. Rather, putative owners were required to register their rights, deposit copies of the work, renew their rights after a brief initial term, and affix a copyright notice to each published copy of the work. (10)

These formalities erected a formidable barrier to copyright protection. Modern scholars agree that early courts were intolerant of procedural deficiencies. (11) Failure to comply with formalities typically led to copyright forfeiture. (12) In many instances, even minor deviations from the required procedure proved fatal--say, when courts refused to accept certain departures from the statutory notice template as valid. (13) And, sometimes, judges insisted that authors had failed to satisfy copyright formalities despite clear evidence to the contrary. (14) The conventional wisdom, in short, is that courts staked out a rigid view of copyright's procedural scheme.

But the dominant narrative of strict formalities and unforgiving courts is incomplete. Drawing on a comprehensive cache of nineteenth-and twentieth-century caselaw, this Article offers a corrective to the traditional story. It shows that, in a long line of cases, courts crafted elaborate legal fictions to get around procedural hurdles. When an author failed to clear the requisite formalities, these courts found that someone else--typically, a publisher--was the formal copyright proprietor. Sometimes courts held that a noncompliant author had implicitly assigned her copyright to the publisher. (15) On other occasions, courts conjured up an image of equitable ownership. They did so by holding that the publisher was the formal copyright proprietor while the author retained an equitable interest in the work. (16) This was, in essence, a system of constructive trust: The publisher, being the formal owner, was a trustee acting on behalf of the author.

For much of the nineteenth century, courts relied on these devices--doctrines of implicit assignment and principles of constructive trust--to wrest copyrights out of the hands of noncompliant authors. (17) And, remarkably, courts were prepared to do so even when there wasn't so much as a whiff of evidence to support these outcomes. (18) Publishers and authors rarely contemplated, much less formalized, an equitable trust scheme. Likewise, an inference of implicit assignment often found little support in the facts of nineteenth-century cases. Worse still, in holding that a noncompliant author had implicitly assigned her rights, some cases ran headlong into the federal copyright statute, which appeared to preclude unwritten assignments. (19)

On the strength of these findings, this Article develops a historical account that is more subtle than the dominant narrative of unwieldy formalities and inflexible courts. It finds that, in practice, some courts enlisted doctrines of copyright assignment and equitable ownership to buck facially draconian formalities. And this account of judicial pragmatism maps rather elegantly onto the long arc of copyright history and American jurisprudence. (20) Early courts often operated within a parallel system of equity--a system that afforded judges significant discretion to depart from legal rules in cases where such rules led to unjust results. (21) Perhaps unsurprisingly, some courts turned to principles of equity to cabin the effects of copyright's byzantine scheme of technical formalities. (22) The history of equitable jurisprudence therefore suggests that copyright's seemingly exceptional threads of procedural pragmatism were fairly routine within the context of equity.

Of course, none of this is to say that courts of the nineteenth century were predominantly (or consistently) lenient in their approach to procedural failures. Far from it. Certainly, there is some truth to the traditional story of judicial rigidity in the face of procedural noncompliance. But there's also a great deal more nuance to that story. As this Article demonstrates, in a subset of early cases, judges were willing to gloss over procedural defects when doing so allowed them to redeem some measure of copyright protection.

After discussing this history of robust pragmatism, I examine its broader significance. (23) First, I explore a number of interrelated factors that might explain why early courts attempted to avoid procedural for-feiture. (24) I argue that, in refusing to invalidate copyrights on procedural grounds, courts recognized the need for strong copyright protection at a time when authors faced two considerable obstacles: a relatively weak copyright regime and a prohibitively expensive system for distributing works.In these circumstances, an aggressively pragmatic approach--one that sought to guard against procedural forfeiture--seemed quite sensible.

Second, I show that the implicit assignment doctrine, engineered at first to curtail rigid formalities, eventually drifted away from its normative foundations. (25) Courts ultimately came to view every sale of a copy--even when procedural compliance was not at issue--as a default assignment of the underlying copyright. But that default rule was divorced from the principal instincts that initially drove assignment cases. At first, courts upheld implicit assignments only when doing so allowed the parties to avert forfeiture. However, under the new default rule, courts increasingly lost sight of that impulse and instead began to find that authors had parted with their copyrights even when procedural issues were not at play. The doctrine worked itself impure.

More broadly, these cases suggest that nineteenth-century courts had not yet fully recognized the now-axiomatic distinction between the physical copy and the intellectual work. It is a cornerstone principle of modern copyright law that the intangible work is distinct from the physical object in which it is embodied. (26) So, under current doctrine, a transfer of a physical copy need not--and, typically, should not--imply an assignment of the underlying copyright. (27) But, as it turns out, some early cases did not fully embrace that distinction. (28) The result was an overly permissive assignment doctrine.

Third, this Article offers a theory that better illuminates the rhetoric behind early cases. As a technical matter, copyright's long tradition of procedural pragmatism manifested in cases dealing with the transfer of title. This body of caselaw thus traded in the language of ownership. But getting at the analytical core of these cases takes some doing. This Article contends that although courts trafficked in the language of ownership, their decisions are best understood as reflecting an implied license framework--an inference that the author had implicitly permitted the publisher to use the copyrighted work. (29) When courts spoke of an assignment, they were actually hinting at an implied license. There was often little evidence, if any, that the author had intended to dispose of her ownership interest. There was, however, ample evidence to suggest the author had implicitly granted the publisher a license to release the work. Given the rhetoric and facts driving many of these cases, an implied license framework can better explain why they came out the way they did.

This, in turn, prompts a related question: If these cases are best understood as licensing disputes, why didn't courts just say so? Why bother instead with a convoluted analysis that undercuts the factual record? The answer, again, is that courts were determined to prevent copyright forfeiture. Because many authors failed to comply with formalities, courts had to find that someone else was, in fact, the copyright owner. Put simply, they felt like they had to speak in the register of ownership.

Finally, this Article not only attempts to breathe new life into a rather comatose debate about the role of procedure in copyright law, it also surfaces a new approach to resolving modern disputes. (30) It argues that, just as courts of the nineteenth century pursued policy objectives and employed legal fictions to settle complex disputes, so too should modern courts look for ways to meet current challenges by reorienting copyright doctrine. One way to do so, I suggest, is to introduce a more pragmatic analysis of policy...

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