Copyright Essentialism and the Performativity of Remedies
This article critically examines the interrelationship between substantive copyright protections and the remedies available for infringement. Drawing from constitutional remedies scholarship and post-structural theories of performativity, it argues that a court’s awareness of its likely remedy award in a particular dispute — combined with its normative view of how future actors should address similar disputes — “reaches back” and shapes the determination of the parties’ respective rights.
Copyright scholars have long sought to limit the availability of injunctive relief, and several recent court decisions have adopted this reform. For example, in Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010), the Second Circuit vacated a preliminary injunction against a critical reinterpretation of The Catcher in the Rye, setting forth a new preliminary injunction standard that expressly requires a court to consider the First Amendment interests of the parties and the public. In the same opinion, however, the court in a single paragraph affirmed “in the interest of judicial economy” the district court’s widely-derided rejection of Fredrik Colting’s fair use defense. This article suggests that this was no coincidence. It demonstrates that limits on available remedies have the potential to lead to the expansion of substantive rights, further entrenching dominant interests within the copyright system under the guise of protecting free speech and expression.