This Article proposes a tiered revenue-based copyright regime, which would require copyright holders to select one of two different copyright terms. The first tier would provide a fixed, nonrenewable copyright term of 10-14 years, while the second tier would offer a one-year copyright term that could be indefinitely renewed as long as the work is successful enough to meet or exceed a revenue threshold.
A tiered revenue-based copyright regime will break the gridlock between copyright proponents lobbying for longer copyright terms and public domain advocates insisting that terms are already remarkably excessive. It will entice Hollywood to set orphans free and to accept dramatically reduced copyright terms for most artwork in exchange for gaining longer protection for the most successful commercial works. It will require all artists seeking copyright protection to register each work and will immediately transfer all works that are not registered—most newly created noncommercial art and all existing orphans—to the public domain. It will increase the speed at which the overwhelming majority of commercial art moves into the public domain, because artists selecting the first tier would have only 10-14 years of copyright protection—a much shorter term than current law provides. Moreover, it will free much of the commercial art in the second tier within one or a few years of copyright registration, for the revenue-based annual renewal system will be a final filter to ensure that only the most profitable works continue to stand aloof from the commons.