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Article

Abstract

It is long past time to reform the Copyright Act. The law of copyright in the United States is at one of its periodic inflection points. In the past, major technological change and major shifts in the way copyrightable works were used have rightly led to major changes in the law. The invention of the printing press prompted the first codification of copyright. The popularity of the player piano contributed to a reevaluation of how musical works should be protected. The dawn of the computer age led to an explicit expansion of copyrightable subject matter to include computer programs. These are but a few examples of past inflection points; the current one demands a similar level of change. Today, owners of copyright face a world where digital technology has made it easy and cheap to reproduce, adapt, distribute, display, or perform the works of another. Equally important, a generation of users has grown up expecting to be able to freely usurp the traditional exclusive rights of the copyright owner. If the declining sales and audiences in the music, newspaper, and broadcast television industries tell us anything, it is that old legal paradigms regarding copying, and the business models built around them, are in jeopardy. What level and type of reform is appropriate? With what do we replace the old approach to copying? The short answer is: something less like the rigid blanket ban on copying currently in place, and something more like a flexible approach that distinguishes acceptable, or even laudable, imitation of another's expression from undesirable copying. Scholars have explored norms-based alternatives to intellectual property law in policing copying in various creative and innovative communities, such as chefs, comedians, research scientists, jam bands, and magicians. But, norms-based communities can give us more than examples of life without intellectual property law. At least one creative community has developed norms for policing and distinguishing good copying from bad, copying that promotes "progress" from copying that inhibits it. Hip-hop artists have traditionally employed a norms-based approach to imitation that points to a possible framework for regulating copying under the Copyright Act of the future. In hip-hop, the types of copying, and the consequences of each type, are varied and nuanced. The cultural implications of imitating in the "wrong" way are such that the formal legal consequences are nearly irrelevant (at least within the community). Even though hip-hop music has become popular music, and popular music is largely owned commercially and protected with copyright law, instances of one hip-hop artist (not record company) suing another over copying are rare. This phenomenon suggests a robustness with respect to hip-hop's internal imitation paradigm that warrants further examination for general use.

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