Journal of Intellectual Property Law, Vol. 1, No. 2 (Spring 1994), pp. 259-292


“COPYING IS ILLEGAL” declares the final page of the chorus from the Bach cantata lying to the right of my computer. The slogan is ingeniously printed in gray across the entire page so that it will show up clearly if any photocopies are made. The first page of the text contains the copyright symbol and the name and address of the “sole selling agent” of the putative copyright owner. Apparently, the copyright claimant would prefer to sell additional copies of the music rather than receive royalties for copying done by users. “ALL COPYING IS ILLEGAL” states the edition of Shakespeare's Henry IV, Part II, that is propped up against the left side of my computer. Those desiring to make photocopies of any part of the text are directed in stern tones to send $1.00 per copy to the Copyright Clearance Center (CCC), Washington, D.C., or face dire consequences.

A claim of copyright is a serious claim. Federal law carries with it substantial criminal (up to ten years in prison) and civil (actual damages or up to $100,000 in statutory damages) penalties for copyright violations. Although many people undoubtedly ignore the copyright symbol and duplicate as they please, others are willing to buy more than one copy of the work covered by the putative copyright, pay a royalty to the copyright claimant, or more likely, remit $1.00 a page to the CCC. Whether the motivation of the payor is fear or a sense of duty (or guilt?), the placement of the copyright symbol on a work clearly affects consumer behavior. It is meant to, and, for the most part, the transactions prompted by copyright notices are not problematic.

The inducing of consumer payments for works in the public domain, however, raises serious issues of impropriety, as do overbroad claims of right made to validly copyrighted works. Neither the Bach cantata nor the Shakespearean play mentioned above was ever copyrighted, and had they been, they would have passed into the public domain long ago, free for anyone to use. A publisher who falsely claims the benefits of copyright law misleads the consumer into paying a royalty or buying another work (to avoid photocopying) in a situation where no payment need be made and photocopying is entirely permissible. A related problem occurs when a consumer pays a royalty or purchases an extra copy of a work where photocopying of the text would have constituted a “fair use.”

We should be worried about publishers' indiscriminate and overreaching attempts to obtain compensation for any and all copying of expression. The purpose of the Copyright Clause of the Constitution is to encourage authors to create literary works that will eventually enter the public domain. Congress has chosen to stimulate these creations by granting limited monopoly rights to authors. When consumers are induced to pay for materials unnecessarily, the cost of using expression rises and the intent of the Framers of the Constitution and of Congress is frustrated. The grant of copyright is designed to “promote the Progress of Science and the Useful Arts,” not to frustrate the exploitation of knowledge that the federal statute and the Constitution declare is free for all to use.

Unfortunately, current practice seems to provide few disincentives for the impoverishment of the public domain. Why shouldn't a publisher claim rights in public domain material? Why not affix threatening language that will intimidate consumers into paying for otherwise fair uses of validly copyrighted material? The cost of affixing a copyright notice or threatening language is very low, and the rewards can be substantial. Those consumers who are intimidated will pay; those who understand that a Bach Cantata or Shakespearean play belongs to the public will not. In either event, the putative copyright holder sees only a potential gain; economics and common sense would predict that, in the absence of a significant deterring cost, spurious claims of copyright will proliferate. This Article proposes four causes of action that could raise the cost of making spurious claims and threats, thereby deterring this current practice and protecting the integrity of the public domain.

Part I of this Article explores arguments based on breach of warranty and failure of consideration and examines precedent authorizing a licensee to recover royalties paid for the use of expression later found to be in the public domain. Part II makes related restitutionary arguments based on unjust enrichment and mistaken payment principles. Part III argues that common-law fraud causes of action should be applicable to false copyright claims made deliberately or recklessly. Part IV demonstrates that various consumer protection statutes expressly incorporating FTC false advertising principles provide very promising protection for the public domain. Finally, the viability of class action implementation of these causes of action is discussed briefly.