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Abstract

The Copyright Act establishes protection for original, creative works of authorship as a means of providing ex ante incentives for creativity. But how real is that protection? Imagine that you have written a script and managed to have your play produced in a local community theater. A few years later, you find that a major Hollywood studio has taken your script, adapted it slightly, and made it into the next summer blockbuster, raking in millions without ever obtaining a license from you. Of course, you can sue them for infringement. But how much will that litigation cost and what are the risks of losing the suit? You will have to fight against a defendant with almost unlimited financial resources, so even if your case is strong, there is a real risk that you may not prevail. A better option might be to sell your accrued infringement claim to a third party who is better able to take on the financial risk of the litigation. This allows you to retain your copyright in the script and walk away with a tidy sum, without risking your life savings trying to win in a David-versus-Goliath fight against the Hollywood studio. But can you transfer the accrued claim without also selling your rights in the copyright itself? Will the third party investor have standing to bring the suit if he does not also own the copyright in the script? Recently, the Ninth Circuit answered no to both these questions. In Silvers v. Sony Pictures Entertainment, Inc., the court, sitting en banc, found that accrued claims for infringement may be assigned only along with the underlying copyright. The majority's decision is, however, riddled with problems. First, the majority ignores the common law background against which all statutes must be interpreted. Second, the majority opts for a logically inconsistent reading of the Copyright Act to justify its holding. Third, the majority draws an untenable analogy between standing to sue in patent and copyright cases. Finally, the court's conclusion contravenes the basic purposes of the Copyright Act: to provide ex ante incentives for creativity by providing protection to copyright holders, regardless of their wealth.

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