The Conceits of Our Legal Imagination: Legal Fictions and the Concept of Deemed Authorship

Legal fictions contain embedded nuggets of information about social reality and reveal important aspects of human society. However, the use of legal fictions may also obscure important information or fundamental questions about law and its role in shaping society. These fictions become institutionalized without a clear understanding of their function. When that happens, fallacious assumptions about human behavior and social relationships transform into binding principles that set the course for future legal development, potentially resulting in legal rules that are completely dissociated from social, historical, or cultural reality. This article explores the concept of deemed authorship as a legal fiction in copyright law and describes how this fiction both obscures fundamental notions about authorship and creativity and complicates copyright jurisprudence, preventing our consideration of the proper legal questions about creativity and its impact on the progress of science. This article argues that the institutionalization of this legal fiction separates an author from the defining attributes of personhood and contradicts our basic understanding about human creativity. As the fiction of deemed authorship inaccurately depicts the role of creators, it isolates rather than socializes legal language. Since this and other fictions that contradict our experiences of reality may cause more harm than benefit to our understanding of the law, they must be used with caution so that legal rules that are more consistent with institutional aspirations, individual and communal expectations, and the rule of law can develop