THE EMPEROR'S NEW COPYRIGHT

Copyright law aims to incentivize the creation of original works by extending protection against copying to rightsholders. Not all works merit copyright protection, however. Some are specifically excluded from it. Increasingly, these excluded works nonetheless parade around as if cloaked in copyright protection. This Article seeks to expose them. Through a series of contemporary examples, this Article delves into the underexamined, extrastatutory revenue streams made possible by the mere existence of copyright law, notwithstanding its nonapplication, or misapplication, to the work at issue. Some of these examples involve the abuse or misuse, both incidental and intentional, of statutory rights, or from outright chicanery. Other examples involve a platform-legislator that overrides statutory law and, in some cases, congressional intent via private policymaking that sets a new norm for the entire sector. Still other examples see private parties wielding market power in order to close perceived gaps in the statutory law in their favor. Some of the examples involve no copyrighted work at all. The emperor has no clothes. In all cases, the purported rightsholder derives extrastatutory revenue in the name of copyright while potentially threatening the statute's purported goal of incentivizing creation for public consumption. In this tale, the government plays the role of complicit advisor through a combination of delegation, abdication, and enforcement forbearance, while power disparities relegate users andconsumers to the role of hapless townspeople who play along for fear of repercussion.