Silbey on New Copyright Stories: Clearing the Way for Fair Wages and Equitable Working Conditions in American Theater and Other Creative Industries @JSilbey @BU_Law @OhioStateLJ

Jessica M. Silbey, Boston University School of Law, is publishing New Copyright Stories: Clearing the Way for Fair Wages and Equitable Working Conditions in American Theater and other Creative Industries in volume 83 of the Ohio State Law Journal. Here is the abstract.

We need some new intellectual property stories. By stories, I don’t mean entertaining fictions. I mean instead accounts or explanations that make sense of the world as it is lived by everyday people. Most of our relevant intellectual property laws were forged in the mid-twentieth century and have failed to keep pace with the transformations in creative and innovative practices of the twentyfirst. Being out-of-sync or failing to recognize broader existing stakeholders means laws are poorly aligned with on-the-ground realities and are out-of-touch with values and interests of the people laws serve. The Article at the center of this Symposium by Brent Salter and Professor Catherine Fisk is a thoroughly scathing critique of just this disconnect, between a triad of legal regimes (antitrust, labor law, and copyright) and the practices and needs of freelance dramatists that drive American theater.

Their Article identifies core assumptions about this triad of legal regimes, and it explains how these assumptions constrain the just applications of these laws to freelance writers’ work. By uncovering these assumptions and demonstrating their contingencies and fragility, the authors lead us to, but do not fully rehearse, new foundations on which a fair labor system of dramaturgs’ work would be built. This review essay proposes some of these new foundations as anchors for new IP stories that explain how, for example, copyright functions in fact for playwrights and other writers. These new stories could liberate the freelancers from the false constraints derived from the interaction of current copyright law, labor law, and antitrust law. Because I study and write about intellectual property law and am not a labor law or antitrust scholar, this short response essay will propose new stories specifically for copyright law. But the essay’s focus doesn’t preclude similar narrative and rhetorical work in the other fields.

Download the article from SSRN at the link.