In 1790, Mercy Otis Warren registered her collection of patriotic poems with the District Court for the District of Massachusetts, becoming one of the first women to register a copyright in the United States. When copyright functions were centralized in the Library of Congress in 1870, several women songwriters were among the first to protect their original works by registering their music compositions. Decades later, in 1905, Clare Kummer became the first woman to solely author and register a musical work with the United States Copyright Office (“USCO”). Despite these early milestones in women’s authorship, women today remain underrepresented as copyright authors. An analysis of copyright registration data between 1978 and 2012 reveals that two-thirds of registered authors are men. The gap between authorship by men and women varies by type of work, but the existence of a gap in every work category raises questions about who is benefiting from our copyright system and why women create and register works at lower rates than men do.
Although copyright registration became voluntary in 1978, the USCO has generally continued to process more than 300,000, and often 400,000, registrations each year. Registration is not required for copyright protection, but it entails several advantages. It is a necessary prerequisite for bringing an infringement action for a U.S. work and for receiving statutory damages and attorney’s fees. It makes it easier for copyright owners to prevent the importation of infringing copies and, if the work is registered within five years of publication, the registration constitutes prima facie evidence of copyright validity and authorship in litigation. In addition, registration reduces transaction costs and makes it easier for copyright holders to financially benefit from selling or licensing their works. This is particularly helpful for entrepreneurs seeking legitimacy or an increase in their young company’s selling potential. These benefits are intended to encourage registration and reward creativity. But if women are not registering copyrights as frequently as men, do the benefits of registration appeal less to women? Or are there structural, systemic, industry-specific, or other barriers to women’s participation in the copyright system?
These questions are difficult to answer fully, but it is possible that rather than women failing to appreciate the benefits of registration, the gender gap in copyright registrations is in part reflective of more general social realities, including inequitable patterns of property ownership by women as well as persistent inequality within creative industries. Notably, women are underrepresented in ownership of copyrights, trademarks, and patents compared to their share of the U.S. workforce. In 2010, women made up 46.7 percent of the U.S. workforce but received only 33.31 percent of granted trademarks. Likewise, in 2015, women represented 28 percent of the STEM (science, technology, engineering, and mathematics) workforce, but only 12 percent of the inventors listed on granted patents. Some creative fields, such as the music industry, have been plagued by allegations of gender bias and accompanying low levels of women participation, underscoring the finding that women registered only 24.02 percent of music copyrights between 1978 and 2012.
One may think that the disparity in intellectual property rights ownership only affects a limited number of artists, entrepreneurs, and scientists. However, intellectual property–intensive industries – industries whose growth is fueled by effective protection of intellectual property rights – accounted for 27.9 million U.S. jobs in 2014 and 38.2 percent of U.S. GDP. A great deal of economic value is added by effectively protecting intellectual property rights and by promoting creativity and innovation among as many people as possible.