2019 Articles

Selling the Artist, Not the Art: Using Personal Brand Concepts To Reform Copyright Law for the Social Media Age

Blumenfeld, Zach

This Note will argue that American courts should take account of digital works’ secondary purpose as personal brand advertisement and treat these works as such, thereby protecting creators’ economic interests in a world where social capital is economic capital. In Part I, I explain how Internet creators, ordinary users, companies, and social media influencers operate under the current system of formal copyright law and informal norms. What they appear to want out of an attendant legal regime looks more like personal brand protection, specifically insofar as it encompasses the attribution right and the ability to monetize their whole oeuvre rather than specific content. In Part II, I discuss privately ordered methods of enforcing the rights that creators seem to want, before explaining that these methods are insufficient to meet creators’ needs. Finally, in Part III, inspired by recent judicial developments that offer promising interpretations of the Copyright Act, I outline a path to more robust protection of attribution and integrity rights than copyright law has previously afforded.