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.
Associate Professor of Law, Florida Coastal School of Law. Ph.D., University of Florida, College of Journalism and Communications, 2004; J.D., University of Florida, Levin College of Law, 2004; M.A., Florida State University, Speech Communication, 1999; B.A., Florida State University, Communication and Philosophy, 1998. Participants at the 2015 Works-in-Progress Intellectual Property Colloquium (WIPIP) provided valuable insights for which I am grateful. And special thanks to Victoria Pasculli, Elizabeth Willis, and the other thoughtful editors of the Yale Law & Policy Review.
