Undermining the Initial Allocation of Rights: Copyright Versus Contract and the Burden of Proof

Copyright law is designed to provide authors with incentives to create work. Publishers have usurped these incentives, however, by leveraging their superior bargaining power to contractually require authors to transfer all rights to a work. This Note argues that this problem could be resolved by a shifting the burden of proving that the contract was voluntary, and not coerced, from the author to the publisher. Proving that a contract was not voluntarily entered into forms an affirmative defense for a breach, which places the burden on the author.

This Note will show that intellectual property cases are different, because, inter alia, the rights are initially assigned to the author. Therefore, the burden should properly be placed on the publisher, to effectuate the purpose of copyright law and to provide meaning to the initial grant of rights to the author.