Private Law Theory

ABSTRACT
The rules of copyright coownership in American law are broken. Because the Copyright Act is silent, courts treat copyright coowners as tenants in common-a set of rules borrowed from the law of real property. These rules work well in many respects, but much less so in others because real property and copyrights are fundamentally different kinds of things: land is tangible and rivalrous, while copyrighted works are intangible and nonrivalrous. It may make sense to prohibit cotenants of land from excluding one another or destroying shared property, but it is far less clear what it means for one coowner to, say, exclude another from a song or to destroy a poem. Importing these real property rules into copyright has produced predictable consequences: doctrinal confusion, inconsistent application, and market unpredictability. This Article argues that the problem runs deeper: real property law advances a pluralistic set of policy goals that sometimes conflict with American copyright’s singular utilitarian purpose of promoting the progress of art and science. As a result, the use of certain real property rules has shifted the law of copyright coownership out of alignment with its underlying policy goals. But while the current framework is flawed, it is not fatal: when we import ownership rules developed in the context of one resource into another, we can and should adapt them to fit the nature of the resource being governed and the policy goals the state wants to achieve. This Article makes progress towards that end by developing an account of copyright coownership decoupled from the most problematic real property rules and reframed through the core principles of tenancy in common which are well-suited to the copyright context, offering a framework for the better use of real property rules in copyright coownership.

Landry, Benjamin, Towards a Better Use of Real Property Rules in Copyright Coownership (July 27, 2026).