The production of copyrighted works can be arrayed on a spectrum that runs from commoditization to customization. At one end, the authors of commoditized creativity produce works on a speculative basis and sell copies of those works in a market of anonymous consumers. At the other, the authors of customized creativity interact with known, individual clients and tailor works to fit their tastes and needs. The narratives conventionally invoked to explain why copyright is valuable to both authors and society implicitly assume that authors produce commoditized creativity. This Article explores the notably different—and likely less significant—role that copyright plays in facilitating creative production near the customization end of the spectrum.
One basic insight is a descriptive theory of demand for copies of customized works that this Article calls the customization effect. Intense and diverse preferences tilt markets strongly toward customized, rather than commoditized, creativity. The customization effect is driven by the fact that these same preferences also push demand for copies among nonclients—that is, among parties to whose tastes and needs works are not customized—toward zero and force authors to rely solely on the fees that clients agree to pay in advance to fund their creative endeavors. The emergence of the customization effect has significant ramifications for copyright’s normative justification. Copyright becomes irrelevant under its dominant incentive-to-create (or “market-buffer”) theory. There is no collective action or public goods problem for copyright to solve. To the extent that it exists, copyright’s justification must instead reside in less commonly discussed theories, namely transactional theories and the theory of the firm.
