Richard Fine

Abstract for "Who Owns What Writers Write? American Authors and Intellectual Property"

As we head into the still confused realm of the information age, the questions of who is a "writer," what does it mean to "write," and what "ownership" of a "work" means have perhaps never been so important for society at large. Statute and case law provide many answers, none definitive. Nonetheless, some recent work in legal studies offers much insight as we attempt to explain (or theorize) about the course of authorship in America, a topic of crucial importance to American literary history generally. This paper quickly surveys the work of Peter Jazsi, Rosemary Coombe, David Lange and other legal scholars who have recently developed a wide-ranging critique of conventional assumptions about copyright law and theory (such as the notion that copyright is a property right), then focuses specifically on James Boyle's recent Shamans, Software and Spleens: Law and the Construction of the Information Society (1996) as it assesses the ramifications of this work for the exploration of American authorship.

Most importantly, critical legal scholars have charted how the characterization of the author as a solitary creative genius, a figure rooted historically in European Romanticism, informed the development of intellectual property law as it eventually extended to areas beyond literary production. They argue that such a conception has often distorted the actual practices of authorship. These re-conceptualizations of authorship, intellectual property, and copyright form an important interpretive thread by which we can knit together specific empirical studies of the American literary marketplace. This done, we can begin to construct a more coherent narrative of the material conditions of American authorship, fully taking into account, for example, the growth of writing-for-hire, the introduction of the corporate copyright in the early twentieth century, and collaborative authorship in electronic media, all of which tend to make problematic traditional conceptions of authorship.