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Copyrights as Incentives: Did We Just Imagine That? by Diane Leenheer Zimmerman

The latest issue of Theoretical Inquiries in Law has several interesting pieces on the theme “Copyright Culture, Copyright History,” including:

Copyrights as Incentives: Did We Just Imagine That?

Diane Leenheer Zimmerman


The most widely accepted explanation of why we need copyright is that it provides authors with the necessary economic incentive to create. This incentive story has largely gone unchallenged, and has been used to justify lengthening and strengthening the legal protections for expressive works. This Article points out, however, that the empirical foundation for the copyright-as-incentive story is seriously suspect. It fails to account for the economic conditions under which most art, literature and other expressive works are produced, and it contravenes the insights provided over the last forty years or so by psychologists interested in creativity and by behavioral economists. Empirical research has shown that intrinsic factors are much more important determinants of participation in creative work than such extrinsic ones as monetary reward. In fact, evidence exists that the promise of extrinsic rewards such as money can actually be detrimental to the creative impulse. This is not to say that concern with economic rewards should play no role in a legal regime designed to encourage the creative process. But, at a minimum, this Article suggests both that copyright scholars (and possibly patent ones as well) need to develop a far more nuanced understanding of why people produce what they do, and that a satisfactory legal regime to promote intellectual property creation and dissemination can afford to be far less concerned than it presently is with ensuring that authors and copyright owners can extract every bit of available profit from their works.

Recommended Citation

Zimmerman, Diane Leenheer (2011) “Copyrights as Incentives: Did We Just Imagine That?,” Theoretical Inquiries in Law: Vol. 12 : No. 1, Article 3.
Available at: http://www.bepress.com/til/default/vol12/iss1/art3



Madhavi Sunder


Free flow of culture is not always fair flow of culture. A recent spate of copyright suits by Hollywood against Bollywood accuses the latter of ruthlessly copying movie themes and scenes from America. But claims of cultural appropriation go far back, and travel in multiple directions. The revered American director, Steven Spielberg, has been accused of copying the idea for E.T. the Extra-Terrestrial from legendary Indian filmmaker Satyajit Ray’s 1962 script, The Alien. Disney’s The Lion King bears striking similarities to Osamu Tezuka’s Japanese anime series, Kimba the White Lion. Neither Ray nor Tezuka’s studio sued the American filmmakers and this Article is by no means an attempt to revive any particular legal case. Rather, this Article considers copyright’s role in promoting free cultural exchange, albeit on fair terms in a global marketplace of ideas marked by sharp differentials in power, wealth, and knowledge.

Recommended Citation

Sunder, Madhavi (2011) “Bollywood/Hollywood,” Theoretical Inquiries in Law: Vol. 12 : No. 1, Article 10.
Available at: http://www.bepress.com/til/default/vol12/iss1/art10

The full contents of this issue is:

Copyright Culture, Copyright History


Copyright and Truth

Maurizio Borghi

Copyrights as Incentives: Did We Just Imagine That?

Diane Leenheer Zimmerman

Copyright as Tort

Avihay Dorfman and Assaf Jacob

What Is a Copyright Work?

Brad Sherman

Copyright and Social Movements in Late Nineteenth-Century America

Steven Wilf

The “Extraordinary Multiplicity” of Intellectual Property Laws in the British Colonies in the Nineteenth Century

Lionel Bently

Hebrew Authors and English Copyright Law in Mandate Palestine

Michael D. Birnhack

Is Copyright Property? — The Debate in Jewish Law

Neil W. Netanel and David Nimmer


Madhavi Sunder

Tailoring Copyright to Social Production

Niva Elkin-Koren

Global Intellectual Property Governance (Under Construction)

Margaret Chon

An Old-Fashioned View of the Nature of Law

James Boyd White

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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.