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Faulty Math: The Economics of Legalizing "The Grey Album"
59 Ala. L. Rev. 345 (2007)
  • Derek Bambauer, Brooklyn Law School

From an economic perspective, giving copyright holders the right to control production of derivative works—works that transform their expression, such as the movie version of a novel—is unjustified, even harmful. Current scholarship either defends this entitlement as economically sensible or partially reconfigures it. This Article assesses the dominant economic rationales for derivative control and finds them weak at best. Unlike other copyright scholarship, this piece argues that since the right prevents production of attractive, diverse, cheaper new expression, and blocks the promise of re-mix culture, it should be eliminated. This change would also concentrate attention on the adaptation right’s role as a proxy for other copyright concerns, primarily the risk of derivatives substituting for initial works. This Article proposes re-configuring copyright law to unfetter transformative expression while safeguarding copyright’s other entitlements. Finally, it concludes by suggesting that economic arguments cover more deeply held beliefs, based on personality theory or labor-desert conceptions, supporting control over adaptation.

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Citation Information
Derek E. Bambauer. Faulty Math: The Economics of Legalizing 'The Grey Album', 59 Ala. L. Rev. 345 (2007).