I. The Statutory Framework

The Copyright Act of 1976, codified at Title 17 of the United States Code, establishes a comprehensive framework for the protection of original works of authorship. Section 106 enumerates six exclusive rights granted to copyright owners. The second of these, at § 106(2), is the exclusive right “to prepare derivative works based upon the copyrighted work.”¹

Section 101 defines “derivative work” as follows: “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’”²

The phrase “any other form” is the statutory language that matters. The list that precedes it — translation, arrangement, dramatization, fictionalization — is illustrative, not exhaustive. Congress explicitly provided that a derivative work includes any form in which the original “may be recast, transformed, or adapted.” The verb tenses are permissive. The categories are open-ended. The definition does not specify that the recasting must be intentional. It does not require that the transformer be awake.

Section 501(a) provides that “anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 … is an infringer of the copyright.” The word “anyone” is not qualified. It is not limited to persons acting during waking hours. It is not limited to persons who are aware that they are creating a derivative work. It is not limited to persons who intended to create a derivative work. Under § 501(a), the question is whether the exclusive right was violated, not whether the violator meant to violate it.³

Section 102(a) imposes one threshold requirement: copyright protection extends to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The work must be fixed. The medium may be any medium. The perception may require a machine. The statute was drafted in 1976. The neuroscience of memory consolidation was not drafted until considerably later.

II. The Source Material

The average American adult consumes approximately seven hours and four minutes of media per day, according to Nielsen’s 2024 Total Audience Report. This figure includes television, streaming video, digital audio, social media, gaming, and other screen-based media. It does not include background media exposure, ambient music in retail environments, or the copyrighted content displayed on billboards, building facades, and the clothing of passersby.⁴

The Motion Picture Association reported in its 2024 THEME Report that the global theatrical and home entertainment market generated $103 billion in combined consumer spending. The domestic box office alone generated $8.74 billion. The U.S. subscription video-on-demand market serves an estimated 238.9 million paid subscribers across platforms. Netflix alone reported 301.6 million global paid memberships in its Q4 2024 letter to shareholders.⁵

The Recording Industry Association of America reported 2024 U.S. recorded music revenues of $17.1 billion, with streaming accounting for 84 percent of total revenues. Spotify reported 252 million premium subscribers and 675 million monthly active users globally. Apple Music, Amazon Music, YouTube Music, and other platforms collectively deliver billions of streams per day to American consumers.⁶

The video game industry generated $56.5 billion in U.S. consumer spending in 2024, according to Circana. Approximately 190 million Americans play video games. The Entertainment Software Association reports that 65 percent of American adults are gamers. The average gamer spends approximately eight hours and twenty-seven minutes per week playing.⁷

This is the input stream. Seven hours per day, every day, across an adult population of approximately 258 million. Each hour contains copyrighted characters, protected melodies, registered audiovisual works, and trademarked visual elements that enter the sensory processing centers of the brain, traverse the thalamus, reach the neocortex, and are encoded by the hippocampal formation into long-term memory traces that the brain will subsequently access, recombine, and replay during sleep. The exposure is voluntary. The encoding is not. The replay is automatic.

III. The Incorporation

In 2000, Robert Stickgold, April Malia, Denise Maguire, David Roddenberry, and Margaret O’Connor at Harvard Medical School published a study in Science titled “Replaying the Game: Hypnagogic Images in Normals and Amnesics.” The study enrolled twenty-seven subjects in three groups: twelve novice Tetris players, ten experts, and five individuals with amnesia caused by hippocampal damage. All subjects played the copyrighted video game Tetris for a total of seven hours over three days. The researchers monitored the subjects’ mental imagery during the hypnagogic period — the transition from wakefulness to sleep — on the first two evenings.⁸

Seventeen of the twenty-seven subjects, sixty-three percent, reported experiencing visual imagery of falling Tetris pieces during sleep onset. The imagery was specific: subjects reported seeing “images of falling, rotating Tetris pieces fitting into empty spaces.” Nine of twelve novices, five of ten experts, and, remarkably, three of five amnesiacs reported the same copyrighted visual elements. The amnesiacs could not remember playing the game. They could not identify the game by name. But their brains reproduced its copyrighted visual elements anyway.⁸

“What was most striking about the data,” the researchers wrote, “was the strong similarity in reports from different individuals.” All subjects who reported imagery described the same elements: pieces falling, sometimes rotating, fitting into gaps. None reported the scoreboard, the surrounding interface, or the keyboard. The brain selected the copyrighted audiovisual elements — the geometric tetrominoes and their characteristic motion — and discarded the unprotectable functional elements. If a human editor had done this, it would be called an adaptation. The brain does it automatically.

The Stickgold study is not an outlier. A 2003 study by Fosse, Fosse, Hobson, and Stickgold, published in the Journal of Cognitive Neuroscience, analyzed 299 dream reports collected from subjects across multiple REM sleep awakenings over two consecutive nights. They found that while only 1.4 percent of dreams represented direct “episodic replay” of waking experiences, 65 percent of dream reports contained clear “episodic elements” drawn from waking life: characters, settings, objects, and events derived from the dreamer’s recent experience.⁹

A 2004 study by Fosse, Stickgold, and Hobson, published in Psychophysiology, examined dream reports across multiple REM awakenings and found that “dream content, although not typically a faithful replay of any waking event,” consisted of “novel recombinations of fragments from different waking sources.” A 2001 study by the same group, published in Psychological Science, documented that these fragments were “recombined in a way that created novel dream scenarios” bearing no one-to-one correspondence to any single waking event.¹⁰

This is the operative mechanism. The brain does not photocopy copyrighted works during sleep. It does something worse. It takes fragments of multiple copyrighted works, recombines them into novel configurations, and produces new compositions that are recognizably derived from but substantially different from the originals. Under § 101, this is not mere reproduction. It is the preparation of a derivative work. The dream is a dramatization, a fictionalization, and an adaptation simultaneously — three of the nine enumerated categories in the statutory definition — performed in a single unconscious act.

IV. The Fixation Question

The principal objection to copyright liability for dreams is fixation. Section 102(a) requires that a work be “fixed in any tangible medium of expression.” Section 101 defines fixation: “A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”²

The question is whether a dream encoded in hippocampal neural firing patterns constitutes fixation in a tangible medium for a period of more than transitory duration. The Ninth Circuit answered a closely analogous question in 1993.

In MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), the court held that loading copyrighted software from a hard drive into random access memory (RAM) created a “copy” of the software within the meaning of the Copyright Act. RAM is volatile memory. Its contents are erased when the machine is powered off. The copy exists only as a pattern of electrical charges in semiconductor circuits. The Ninth Circuit held that this was sufficient. The copy was “fixed” because it persisted long enough to be “perceived, reproduced, or otherwise communicated.”¹¹

The Second Circuit took a narrower view in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), the Cablevision case, holding that a 1.2-second buffer copy of a television broadcast was too transient to constitute fixation. The court emphasized that the statutory language requires embodiment “for a period of more than transitory duration” and found that a 1.2-second buffer did not meet this threshold.¹²

A dream is not a 1.2-second buffer. A single REM sleep period lasts approximately ten to sixty minutes, with successive periods growing longer throughout the night. The National Sleep Foundation reports that the average adult experiences four to six REM periods per night, with total REM sleep comprising approximately 20 to 25 percent of total sleep time. A dream encoded in hippocampal firing patterns persists for the duration of the REM period in which it occurs: ten minutes to an hour, not 1.2 seconds.¹³

But the persistence extends far beyond a single night. In 1994, Matthew Wilson and Bruce McNaughton at the University of Arizona published a landmark study in Science demonstrating that hippocampal “place cells” that fired in specific patterns while rats navigated a maze replayed those same firing patterns during subsequent slow-wave sleep. The temporal relationships between the firing patterns were preserved. The replay occurred at compressed timescales but maintained the sequential structure of the original experience. The authors described this as “reactivation of hippocampal ensemble memories during sleep.”¹⁴

A 2004 study by Peigneux, Laureys, Fuchs, and colleagues, published in Neuron, demonstrated hippocampal replay in humans using positron emission tomography. Subjects who learned a spatial navigation task showed reactivation of the same hippocampal regions during subsequent slow-wave sleep, and the degree of reactivation predicted improvements in performance the next day. The dream was not merely fixed. It was replayed, consolidated, and transferred from hippocampal short-term storage to neocortical long-term storage. In copyright terms, the brain was not only creating a copy; it was making a backup.¹⁵

A 2010 review by Diekelmann and Born, published in Nature Reviews Neuroscience, synthesized decades of research on the memory function of sleep. The authors described a two-stage process: “newly encoded memories undergo a process of consolidation after encoding that is strongly promoted by sleep,” with hippocampal replay during slow-wave sleep transferring memory traces to neocortical storage for long-term retention. The authors documented that these replayed memory traces can persist for days, weeks, or a lifetime.¹⁶

The MAI Systems court found that a RAM copy lasting minutes to hours was sufficiently “permanent or stable.” A hippocampal memory trace that is replayed across multiple sleep cycles, consolidated through synaptic potentiation, and transferred to neocortical long-term storage is not merely permanent or stable. It is durable. Under the Ninth Circuit’s standard, a dream is more fixed than a RAM copy. Under the Second Circuit’s standard, a dream lasting ten to sixty minutes exceeds the 1.2-second threshold by a factor of five hundred to three thousand. The medium is neural tissue rather than semiconductor. The statute says “any tangible medium of expression.” Neural tissue is tangible. The brain weighs approximately 1.4 kilograms. You can hold it in your hands.

V. The Scale of the Enterprise

The U.S. Census Bureau estimates the resident population of the United States at approximately 336 million. The National Sleep Foundation reports that the average American adult sleeps approximately seven hours per night, with four to six REM sleep periods per night. Approximately 258 million Americans are adults. Approximately 78 million are children, who sleep longer and dream more frequently.¹³

A conservative estimate of five dream periods per night across 336 million sleepers yields 1.68 billion dreams per night, 613 billion dreams per year. Fosse and colleagues found that 65 percent of dream reports contained episodic elements derived from waking experience. A substantial but unquantified fraction of waking experience consists of exposure to copyrighted material. If even 10 percent of dreams incorporate recognizable copyrighted elements — a character from a film, a melody from a song, a scene from a television program — the number of unauthorized derivative works produced in the United States each night is approximately 168 million.

Statutory damages under 17 U.S.C. § 504(c)(1) range from $750 to $30,000 per work infringed, at the court’s discretion. For willful infringement, § 504(c)(2) raises the ceiling to $150,000 per work. The question of willfulness is, for dreams, complicated. The dreamer did not intend to create a derivative work. But the dreamer did voluntarily expose themselves to the copyrighted material. They watched the movie. They listened to the song. They played the game for seven hours. They then went to sleep, knowing, or in the exercise of reasonable care should have known, that their hippocampus would process the material. The Stickgold study was published in Science in 2000. Ignorance of hippocampal replay has not been a defensible position for twenty-six years.¹⁷

At the minimum statutory rate of $750 per work, 168 million infringing dreams per night produces a daily statutory exposure of $126 billion. The annual exposure is $46 trillion. This is approximately twice the gross domestic product of the United States. At the willful infringement rate of $150,000 per work, the annual exposure is $9.2 quadrillion, a figure that the federal judiciary would be unable to print on a single judgment form.

VI. The Fair Use Defense That Does Not Apply

Section 107 of the Copyright Act provides an affirmative defense for fair use. It identifies four factors for courts to consider: (1) “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”; (2) “the nature of the copyrighted work”; (3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”; and (4) “the effect of the use upon the potential market for or value of the copyrighted work.”¹⁸

Factor one: purpose and character. The Supreme Court held in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), that the central question under the first factor is whether the new work is “transformative” — whether it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”¹⁹ Dreams are unquestionably transformative. They take copyrighted source material and recombine it with personal memories, emotional associations, and surreal narrative structures to produce experiences bearing little resemblance to the original. The problem is that dreams are transformative in exactly the way that an unauthorized motion picture adaptation is transformative: they take the protectable elements of a copyrighted work and recast them into a new narrative. The Copyright Act’s definition of derivative work at § 101 specifically enumerates “dramatization” and “fictionalization” as derivative works. A dream that dramatizes a copyrighted character in a fictional scenario is a transformative derivative work, which is to say, it is exactly the kind of work that § 106(2) reserves exclusively to the copyright holder.

Factor two: the nature of the copyrighted work. Courts afford greater protection to creative works than to factual ones. The copyrighted material most frequently incorporated into dreams — fictional characters, narrative films, musical compositions, video game audiovisual sequences — is precisely the category of highly creative work that receives the strongest copyright protection. This factor weighs against the dreamer.

Factor three: amount and substantiality. The Stickgold study found that subjects reproduced the core copyrighted elements of Tetris — the falling tetrominoes, their rotation, their spatial relationships — while discarding the unprotectable elements such as the scoreboard and interface chrome. The brain appears to selectively extract the “heart” of the copyrighted work, which the Supreme Court identified in Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 565 (1985), as particularly damaging: even a quantitatively small taking may be qualitatively substantial if it captures the “heart of the work.”²⁰ The brain takes the heart. It leaves the scoreboard.

Factor four: market effect. It may be argued that dreams do not compete with the market for copyrighted works because dreams cannot be sold, licensed, or commercially distributed. This argument has merit under current technology. It will not survive functional magnetic resonance imaging. In 2013, a research team led by Tomoyasu Horikawa at the ATR Computational Neuroscience Laboratories in Kyoto published a study in Science demonstrating that visual imagery experienced during sleep could be decoded from brain activity patterns using machine learning classifiers trained on fMRI data. The researchers could predict the content categories of dream imagery with accuracy “significantly above chance level.”²¹ Dream decoding technology is in its infancy. It is developing. The moment a dream containing copyrighted content can be recorded, visualized, and shared, it enters the market. The fourth factor is a ticking clock.

All four fair use factors weigh against the dreamer. The defense fails.

VII. The Distortion Problem

Dreams do not faithfully reproduce copyrighted works. They distort them. Characters behave in ways inconsistent with their canonical portrayal. Plotlines diverge into surreal non sequiturs. Protected melodies shift keys, skip bars, and merge with unrelated compositions. Architectural works are rendered with walls in the wrong place, stairways leading nowhere, and rooms that change dimensions between visits. The dreaming brain treats copyrighted source material with approximately the same fidelity that a photocopier treats a document that has been folded, dropped in a puddle, partially eaten, and then fed into the machine upside down.

Under the Berne Convention for the Protection of Literary and Artistic Works, Article 6bis, authors retain the right “to object to any distortion, mutilation or other modification of” their work that “would be prejudicial to [their] honor or reputation.” The United States acceded to the Berne Convention in 1989 through the Berne Convention Implementation Act, Public Law 100-568. While the scope of U.S. moral rights protection is narrower than Berne requires, applying primarily to works of visual art under the Visual Artists Rights Act (17 U.S.C. § 106A), the principle is instructive.²²

Consider a screenwriter who spent three years developing a character: her motivations, her speech patterns, her narrative arc. The writer retains the exclusive right to prepare derivative works featuring that character. One evening, 47 million Americans watch the film in which the character appears. That night, some percentage of those viewers dream about the character. In those dreams, the character says things the writer did not write, does things the writer did not intend, and appears in contexts the writer would not have approved. The dreams are unauthorized derivative works that also constitute distortions of the original. The dreamer is simultaneously an infringer and a mutilator.

The writer cannot object. The writer does not know. The mutilation occurs in sealed neural tissue at three in the morning and is forgotten by breakfast. But the Copyright Act does not require that the copyright holder be aware of the infringement for the infringement to have occurred. It does not require that the infringer remember the infringement for liability to attach. Under 17 U.S.C. § 507(b), the statute of limitations for copyright infringement is three years from the date the claim accrues. The dreamer has three years to be sued over a dream they have already forgotten. The copyright holder has three years to discover an infringement that occurred inside a locked skull. Neither party is well-positioned.

VIII. The Licensing Gap

The American Society of Composers, Authors and Publishers (ASCAP) licenses approximately 20 million musical works on behalf of over 1,000,000 songwriters, composers, and music publishers. Broadcast Music, Inc. (BMI) represents approximately 22.4 million works from over 1,400,000 songwriters. The Copyright Clearance Center processes millions of reproduction licenses annually for textual works. The Harry Fox Agency administers mechanical licenses for musical compositions. Collective licensing organizations exist for virtually every category of copyrighted work exploited in every medium of expression.²³

No collective licensing organization licenses the right to dream about copyrighted content. No performing rights organization collects royalties for melodies that play in REM sleep. No synchronization license covers the use of a copyrighted musical work as the soundtrack to a dream sequence. No blanket license exists for the nightly reproduction of audiovisual works in hippocampal replay.

This is not because the right does not exist. The copyright owner’s exclusive right to prepare derivative works under § 106(2) is absolute. It does not contain exceptions for derivative works prepared unconsciously, involuntarily, or in neural tissue. It does not distinguish between a derivative work fixed in celluloid and a derivative work fixed in hippocampal long-term potentiation. It does not specify that the preparation must be intentional. The right exists. No one has licensed it. No one has enforced it. No one has apparently noticed it.

The Walt Disney Company, which earned $91.4 billion in revenue in fiscal year 2024 and maintains one of the most aggressive intellectual property enforcement programs in American corporate history, has not sent a single cease-and-desist letter to a sleeping person. Disney’s intellectual property portfolio includes over 700 animated characters, each of whom appears in the dreams of millions of children. Under the Copyright Act, each such dream appearance is an unauthorized derivative work. Disney’s legal department employs over 500 attorneys. Not one of them works the night shift.²⁴

IX. The Registration Problem

Section 411(a) of the Copyright Act provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.” The Supreme Court confirmed in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ___, 139 S. Ct. 881 (2019), that registration must be obtained — not merely applied for — before suit can be filed.²⁵

This requirement protects dreamers only from suits brought by copyright holders over their own dreamed derivative works. It does not protect the dreamer from suits brought by copyright holders over the dreamer’s unauthorized derivative works, because those works — the dreams — are not the plaintiff’s works. The plaintiff is the copyright holder of the source material. The plaintiff has already registered the source work. Section 411(a)’s registration requirement applies to the work being infringed, not to the infringing derivative. The dreamer need not have registered their dream for the copyright holder to sue over it. They need only have dreamed it.

The United States Copyright Office, which processed 443,855 registrations in fiscal year 2024, has no registration category for dream works. The application form (Form TX for literary works, Form PA for performing arts works, Form VA for visual arts works) does not contain a field for “duration of REM cycle in which work was created.” It does not accept deposit copies encoded in hippocampal long-term potentiation. The Office’s Compendium of U.S. Copyright Office Practices, Third Edition, does not address the registrability of dreams.²⁶

This administrative gap means that dreams constitute the largest body of unregistered derivative works in the United States. They are created nightly, in the hundreds of millions, by authors who did not intend to create them, cannot reproduce them on demand, and will forget most of them within five minutes of waking. The Copyright Office does not know they exist. The copyright holders do not know they exist. The dreamers, more often than not, do not know they exist. The works exist anyway. The statute does not require anyone to know.

X. Conclusion

The Copyright Act defines six exclusive rights of copyright owners. One of them is the exclusive right to prepare derivative works. A derivative work is any form in which a copyrighted work may be recast, transformed, or adapted. A dream recasts, transforms, and adapts copyrighted works every night inside the hippocampal formation of every brain that was exposed to copyrighted content during waking hours. Harvard Medical School demonstrated in Science that this incorporation is reproducible, measurable, and consistent across subjects. The Ninth Circuit held in MAI Systems that a copy fixed in volatile electronic memory constitutes fixation. Neuroscience has documented that dreams are fixed in neural memory traces that persist across sleep cycles and consolidate into long-term storage. The Copyright Act provides damages of up to $150,000 per work per infringement.

The number of infringing works produced each night exceeds a hundred million. The annual statutory exposure exceeds the gross domestic product of the United States. No license has been issued. No suit has been filed. No collective licensing organization has been formed. No performing rights organization collects royalties for melodies that play only in the auditory cortex of a sleeping person who heard the song on the radio nine hours earlier.

We do not suggest that the motion picture industry should seek injunctive relief against the sleeping population of the United States. We observe that 17 U.S.C. § 502(a) authorizes any court having jurisdiction “to grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” We observe that this provision has been invoked against individual users, small businesses, universities, churches, and bar owners. We observe that it has not been invoked against a single sleeper.

The brain does not contest jurisdiction. It does not assert a counterclaim. It created the derivative work during REM sleep, which is, by physiological definition, a period of voluntary motor paralysis. The infringer was immobilized at the time of the infringement. The brain synthesized the work from copyrighted source material, distorted it beyond the author’s recognition, performed it for an audience of one in a sealed theater that admits no light, and disposed of the evidence before the conscious mind could be deposed. The Copyright Act does not contain an exception for any of this. It does not mention sleep. It does not mention dreams. It does not mention the hippocampus.

The statute says “anyone.” The statute says “any form.” The statute says “any tangible medium.”

Ergo.