Emory Law Journal


Edward Lee


The scandals stemming from the sexual harassment allegedly committed by Harvey Weinstein, Roger Ailes, Les Moonves, Matt Lauer, Bill O’Reilly, Charlie Rose, Bryan Singer, Kevin Spacey, and many other prominent figures in the creative industries show the ineffectiveness of Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment in the workplace, in protecting artists and others in the creative industries. Among other deficiencies, Title VII does not protect independent contractors and limits recovery to, at most, $300,000 in compensatory and punitive damages. Since many people who work in the creative industries, including the top actors, do so as independent contractors, Title VII offers them no protection at all. Even for employees, Title VII’s cap on damages diminishes, to a virtual null, the law’s deterrence of powerful figures in the creative industries—some of whom earned $300,000 in less than a week. Not surprisingly, many of the accused harassers in Hollywood had no shortage of funds to pay “hush money” to their accusers, yet allegedly continued to sexually harass people for years. In an original survey of over 670 alleged incidents of sexual harassment, this Article analyzes the problem of sexual harassment in the creative industries—and the insidious role copyrighted works often played in facilitating a harasser’s ability to carry out and continue the harassment or retaliation. This Article proposes a new way to address sexual harassment in the creative industries: enact federal legislation that prohibits sexual harassment in the development of works of authorship that receive federal copyrights. The proposed legislation is modeled on Title IX’s prohibition of sex discrimination in educational institutions that receive federal funding—which carries, potentially, the ultimate penalty of the loss of federal funding for educational institutions that violate Title IX. Similarly, the proposed federal legislation authorizes a court to order the forfeiture of copyright for any work that has the requisite nexus to the sexual harassment or retaliation, if the violation was willful or wanton. A court-appointed trustee will oversee the copyright in the best interests of the public and the innocent individuals who participated in the development of the underlying work. The work would remain copyrighted for the remainder of the term, but the copyright would no longer be owned by the harasser or any entity complicit in the harassment.