Just Borrowing This Story, OK?

Viva Moffat, University of Denver Sturm College of Law has published Borrowed Fiction and the Rightful Copyright Position at 32 Cardozo Arts & Entertainment Law Journal 389 (2014). Here is the abstract.

Works of “borrowed fiction” — unauthorized sequels or retellings of literary works — have long prompted legal, cultural, and social backlash. With respect to copyright disputes, this is because borrowed fiction entails a range of legitimate but conflicting interests. Copyright law has historically elevated the interests of the “original” author over those of other writers and the reading public. Scholars have offered a range of proposals to counter this tendency, but these reforms have focused on the infringement analysis and the fair use doctrine. Each of those, however, involves a binary decision, one that is not amenable to accommodating the conflicting interests at stake. This Article proposes that a better accommodation between and among these interests can be achieved at the remedial stage. By taking seriously both the “rightful position” notion in remedies law and the Supreme Court’s admonition against presumptive injunctive relief, courts can reach a more nuanced result in borrowed fiction cases. Under this approach, the full panoply of remedies would remain available, but rarely would anything more than compensatory damages be necessary to put the plaintiff in her rightful copyright position.

Download the article from SSRN at the link.