ALI’s proposed Restatement of Copyright Law could put creators at risk

The American Law Institute (“ALI”) recently reached Chapter 3 in its controversial project to compile copyright law into a Restatement. Non-lawyers are likely unfamiliar with these treatises, which essentially synthesize judicial decisions from many jurisdictions to “restate” the general consensus of the law about a particular subject. The proposed copyright addition to ALI’s generally well-respected body of secondary sources represents the group’s first attempt to address a statutory law – the Copyright Act.

According to a status update posted on the organization’s website, sections of “Chapter 3 on Initial Ownership, Transfers, Licenses, Termination of Grants, and Abandonment” were approved in mid-January. If completed, the ALI’s copyright treatise would be unprecedented. Unlike the common law of contracts or torts, which like the other legal areas covered by ALI’s previous treatises are created largely by judicial decisions, statutory law like the Copyright Act is created by the legislative process. When ALI publishes its Restatement of Contracts, for example, it is usefully collecting and synthesizing numerous cases to set out broad rules that a majority of courts usually follow. Courts are not bound to follow ALI publications, but such works can provide persuasive legal reasoning.

Potential Risks for Creators
This is one reason that ALI’s copyright restatement proposal has created so much opposition. A recent editorial published by Senator Thom Tillis (R-N.C.) and Representatives Harly Rouda (D.-Calif.) and Ted Deutch (D-Fla.) reiterated concerns expressed by the U.S. Copyright Office that ALI’s project is “misguided”. The harsh criticism stems from the fact that interpreting copyright law is less about synthesizing judicial decisions and more about understanding the legislative history behind the copyright statute–the expert testimony, reports, briefs, debate, and argument leading up to the final draft of bills enacted into law. Such history offers insight into the intent of elected legislatures, which should guide judges in applying statutory law. This is especially so in the case of copyright law. As one creative industry advocacy organization has observed, the “legislative history surrounding the 1976 Copyright Act is unusually thorough, reflecting an exhaustive process spanning several decades.”

If ALI’s restatement of such a law is crafted to influence judges to take a minimalist view of copyright protection, the result could disfavor creatives. We see some reason to believe that may be the case. In a letter to ALI President David Levi, the Copyright Office expressed that the “project appears to create a pseudo-version of the Copyright Act that does not mirror the law precisely as Congress enacted it and one that will quickly become outdated as Congress amends it or the courts clarify it.” Prominent law professors have likewise expressed skepticism of the need for a Restatement of a federal statute, with some reportedly noting that they are “particularly troubled by the ALI’s refusal to articulate a methodology” for its Restatement project. ALI itself states that its proposed copyright treatise is intended to represent “the American Law Institute’s position on the subject . . . .”

If ALI’s position reflects more of an effort to change the law than to restate it, its copyright project could weaken creators’ ability to protect and profit from their effort and talent. As a boutique creative law firm working to protect creators and creative rights, we share such concerns. Unless they can be addressed adequately, we would join in urging that ALI suspend its proposed Restatement of Copyright project.

If you have questions about this post or other copyright and creative legal issues, we invite you to contact us.

Dane Johnson
djohnson@iss.law