People in prison produce vast amounts of creative and expressive work—from paintings and sculptures to essays, novels, music, and NFTs—but they are rarely described as artists and their work is often not described as “art.” Prisoners also do not regularly take advantage of copyright law, the primary form of protection for creative works. They should.
Copyright provides a strong set of rights that combines strains of free expression values with elements of property rights. Copyright confers dignitary and expressive benefits and, for some creators, financial rewards. As such, copyright can be a tool to help prisoners improve their lives, both while they are incarcerated and after they are released. In the prison context, copyright should be thought of as akin to a civil right and a part of the movement to reform the U.S. carceral system, empowering those who create. Moreover, because copyright is a right in intangibles, there is no reason that prisoners cannot or should not advance and vindicate their copyright interests just as they would if they were not incarcerated. In other words, copyright behind bars should not operate any differently than copyright in the free world.
This Article first describes the enormous range of artistic work created by those who are imprisoned, as well as the prison system’s regular attempts to deter and suppress such work. The Article then explains how copyright law protects virtually all of these works and why copyright is valuable to prisoners and should become part of the carceral reform project. Finally, the Article argues that there is no reason to limit the exercise of copyright by those who are incarcerated and no justification for impinging on prisoners’ ability to create, disseminate, and profit from their expressive and artistic works.