Naming Rights: Attribution and Law

This article identifies three basic frameworks that intellectual property theorists have used to support giving authors a right to attribution: authorial high-protectionism, which is concerned with respecting the unique role of authors; copyright low-protectionism, which is concerned with increasing access to copyrighted works and wishes to substitute credit for total control; and trademark-style consumer protectionism, which is concerned with giving consumers truthful and useful information about the works they choose. I examine these rationales, and the tensions between them, and conclude that attribution rights cannot fulfill their apparent promise to unite differing visions of intellectual property. Legitimate claims for credit are simply too varied and contextual, and copyright law already too complex and reticulated, for an attribution right to be a valuable addition to copyright’s arsenal. This is so even though voluntary attribution is often a viable substitute for more expansive control of uses of copyrighted works. Fundamentally, American copyright law has enough trouble identifying owners; identifying authors is beyond its grasp. Attribution rights, especially in the absence of comprehensive author-centered reform, would only make the law more complex, not more just. I conclude by examining the role of attribution in more modest proposals to add a new fair use factor and to add protections for uses of “orphan works,” works whose owners cannot be found after a reasonable search