ABSTRACT
This is the first article to cohesively identify, analyze, and argue against a pernicious doctrine within US copyright law: the adverse possession of authorship. Its tendrils have spread through three decades of case law, effectively stripping people of their legal status as authors and shifting it to others who did not create what they did.
The doctrine functions as follows: if you do not sue to assert your authorship soon enough after someone repudiates it, you lose it. So if, for example, you write a song with someone who later insists he wrote the whole thing alone, you have three years under the Copyright Act’s statute of limitations to challenge him in court. Wait a day more, and your authorship is effectively adversely possessed. Your collaborator is now, as a legal matter, the song’s sole author.
This is both atextual and myopic. It is atextual in that the statute of limitations bars untimely claims, but authorship is not a claim; authorship is a status, one stemming solely from the act of creation. It is myopic in that authorship has an overarching, immutable function in copyright law. Authorship controls who initially owns a copyright. Authorship dictates whether and how transfers of ownership can be terminated. Authorship governs how long a copyright will last. And, as the advent of generative artificial intelligence has starkly shown, authorship determines whether a copyright exists at all.
Accordingly, although a given claim can be untimely – such as one for profits not shared with you prior to the three years leading up to your suit – authorship should remain inviolate, regardless of whether and when someone else repudiates it. Simply put, the adverse possession of authorship should cease. The Constitution itself may demand it.
But practical conundrums abound. Absent adverse possession, there is no brightline time limit on any authorship dispute. The later that courts can hear such disputes, the more they will have to deal with faded memories, lost documents, and dead authors’ estates, and the greater the risk that their rulings will disturb dealings long thought settled. Moreover, for every belated but meritorious assertion of authorship, at least as many may be unscrupulous money-grabs.
This Article aims, then, to offer other paths forward while minding the practical pitfalls. Along the way, broadly useful insights into authorship, and its vexing relationship with time, will be revealed.
McFarlin, Timothy, Ending the Adverse Possession of Authorship (August 28, 2026), 115 Georgetown Law Journal (forthcoming 2027).
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