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A literary or artistic expression created by an individual author fits neatly in the copyright system. Many of the rules were developed with the sole author and a distinct work in mind. Given this start, copyright law struggles to govern expressions generated by teams. But even in such scenarios, joint authorship rules, which were developed relatively recently, have addressed complicated ownership questions. In contrast to solo- and team-authored works, the copyright system fails in a third category, what this Article labels “communal authorship.” This Article describes communal authorship as a subset of mass-authored works having the key features of numerosity, informality, temporality, and intentionality—features that make the applicability of copyright law challenging. The large-scale nature of the collaboration, the absence of a central figure with creative control, the dynamic nature of the work, and the strong norm of sharing makes communal authorship unique. The mismatch between copyright law and communal authorship results in confusion, which in turn discourages creative expression and enables some to appropriate value created by others. Four case studies of communal authorship—hackathons, memes, dance crazes, and traditional cultural expressions—are used to illustrate the mismatch. Through the communal authorship theory, the Article offers a novel analytical framework to examine the governance of mass-authored works which are, and will continue to be, important forms of expression, especially in digital platforms.
Aman K. Gebru *
* Assistant Professor of Law, University of Houston Law Center.