The Pope's Copyright? Aligning Incentives with Reality by Using Creative Motivation to Shape Copyright Protection

In the United States utilitarian theory posits that granting an exclusive right in creative expression will provide a necessary incentive to invest in the creation and distribution of expressive works. It is feared that without this incentive there would be insufficient motivation for creation. Indeed, it appears that the U.S. adheres completely to the notion that no man but a blockhead ever wrote, except for money. Yet the creation of many works, such as emails and papal decrees, ordinarily are not motivated by monetary incentives. Nevertheless, current copyright protection fails to account for the creator's motivation in determining the level of protection of the copyrighted work. Despite its extremely low threshold, copyright protection is not cost-free: granting exclusive rights in expression makes subsequent expression more costly, imposes wealth distribution costs, and creates distributive consequences affecting opportunities for expression. Society should avoid shouldering these costs when they are unnecessary. If copyright law is designed to guard against underproduction of intangible assets then it is entirely appropriate to provide less protection when there is little risk of underproduction. This article argues for less robust copyright protection for differently motivated works. Well-documented industry capture of the legislative process in the field of copyright law makes legislative recalibration of the scope of protection unlikely. This article provides a more realistic approach: courts should incorporate a motivational inquiry when determining the level of similarity needed to demonstrate non-literal infringement and should also expressly consider creator motivations when analyzing the second and fourth fair use factors. Reducing the robustness of copyright protection for differently motivated works will decrease the costs to society and better facilitate the underlying goal of copyright law: the promotion of knowledge and learning.