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Vanderbilt Journal of Entertainment & Technology Law

First Page

501

Abstract

This Article argues that copyright’s derivative rights doctrine—long treated as a technical mechanism of market control—has operated as a powerful but underexamined tool of epistemic governance. As the doctrine’s scope has expanded, it has increasingly privileged dominant narratives while recasting resistive ones as acts of infringement. Drawing on historical and contemporary case studies—from the largely forgotten copyright disputes over the English translations of Mein Kampf and Bambi on the eve of World War II to the infamous stand-off between Wall Street’s Charging Bull and Fearless Girl statues—the Article demonstrates how derivative rights have been deployed to suppress what Sonya Katyal terms “semiotic disobedience.” In effect, the doctrine has rendered certain cultural symbols legally inviolable, thereby insulating prevailing ideologies from contestation by suppressing challenges to their authority. The Article therefore argues that the derivative rights doctrine has created sacred texts in two distinct senses: works that are treated as sacrosanct and epistemologies that are rendered incontestable. In the absence of meaningful constraints from fair use and other doctrinal limitations, a capacious derivative rights doctrine not only betrays copyright’s constitutional aim of promoting progress in the arts, but also impairs the capacity of marginalized communities to resist dominant orthodoxies and entrenched powers. To better promote the expressive and creative interests in resistive narratives, the Article concludes by proposing a recalibration of derivative rights, drawing inspiration from the compulsory mechanical licensing regime in music as a possible foundation for reform—an intervention made increasingly urgent by the rise of generative AI and the anticipated proliferation of derivative cultural production.

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