Redundancy and Anti-redundancy in Copyright
Abstract: United States copyright law has a reputation as a tangled mess of overlapping legal doctrines. Although commonly maligned, such redundancy can play a positive role. Redundancy that is well designed and implemented can achieve a better balance between copyright law’s benefits and costs, can safeguard interests in competition and technological innovation, can improve protection of freedom of speech, and can enable flexibility and doctrinal evolution. On the other hand, doctrinal redundancy can have unfortunate results when it is excessive or otherwise unmoored from underlying purpose. Design principles of redundancy and anti-redundancy are thus virtually tailor-made to analyze copyright law’s structure for purposes of identifying potential justifications, flaws, and opportunities for reform. Building on prior work on legal redundancy and on copyright doctrine, this Article analyzes the promise and risks of doctrinal redundancy as a design principle for copyright. Specifically, the Article analyzes redundancy in multiple areas of copyright doctrine: (1) fair use and nonfunctionality, (2) fair use and improper appropriation, (3) copyrightable subject matter and originality, and (4) rights in reproductions and derivative works. The analysis indicates that distinct but overlapping doctrines of fair use, originality, and copyrightable subject matter can better police the boundaries of an expansive copyright regime than could a single doctrine alone. Such reinforced policing is particularly important to secure interests in free speech and competition from improper copyright encroachment. On the other hand, there is reason to question the social value of redundancy as embodied in distinctly identified rights in reproductions and derivative works. More generally, our analysis illustrates how attention to the structural design of legal doctrine can help to improve the content and operation of law.