Protecting Intellectual Property "In Progress"

Nathan Murphy, University of Connecticut, has published Thème Et Varaations: Why the Visual Artists Rights Act Should Not Protect Works-in-Progress, at 17 UCLA Entertainment Law Review 110 (2010). Here is the abstract.

Many countries recognize "moral rights," which allow artists some level of control of their art after it is sold, for example by guaranteeing that their work’s authorship is acknowledged and that it cannot be modified without their permission. In contrast to Europe, where they have long existed, these rights have only been broadly recognized in American law since 1990, when Congress enacted the Visual Artists Rights Act (VARA).



Although other parts of VARA have received extensive scholarly attention, one question that has been essentially overlooked is whether VARA applies to unfinished works of art. This is surprising, because it has been central in some of the most well-known VARA decisions. Until very recently, those opinions that could have weighed in on the issue have also avoided it. But given how often the issue arises, courts could not avoid it forever, and in late January of 2010, the United States Court of Appeals for the First Circuit decided in Massachusetts Museum of Contemporary Art v. Büchel, No. 08-2199, 2010 WL 297834 (1st Cir. Jan 27, 2010), that VARA fully applies to works-in-progress, from the first stroke of the artist’s brush onward.



Although some authors have rejected the doctrine of "moral rights" wholesale, that is most decidedly not the aim of this paper. Instead, its central argument is that VARA does not (and should not) apply to any works-in-progress, regardless of whether these works would (or should) be protected in finished form. Although this implies that that MassMoCA was wrongly decided, the argument is much broader. Indeed, the MassMoCA opinion’s cursory analysis belies the fact that the question of works-in-progress is very complex. Accordingly, this paper examines VARA’s statutory history, contemporary art theory, and the economic underpinning of the unique American moral-rights framework and concludes that they all suggest no VARA protection for works-in-progress. Further, this reading is (counterintuitively) most consistent with the statute’s aim to protect artists’ moral rights. Unlike with completed art, "moral rights" in unfinished works are protected existing legal remedies.

Download the article from SSRN at the link.

The History of Fair Use

Matthew Sag, DePaul University College of Law, has published The Pre-History of Fair Use. Here is the abstract.

This article reconsiders the history of copyright’s pivotal fair use doctrine. The history of fair use does not in fact begin with early American cases such as Folsom v. Marsh in 1841, as most accounts assume - the complete history of the fair use doctrine begins with over a century of copyright litigation in the English courts. Reviewing this ‘pre-history’ of the American fair use doctrine leads to three significant conclusions. The first is that copyright and fair use evolved together. Virtually from its inception, statutory copyright went well beyond merely mechanical acts of reproduction and was defined by the concept of fair abridgment. The second insight gained by extending our historical view is that there is in fact substantial continuity between fair abridgment in the pre-modern era and fair use in the United States today. These findings have substantial implications for copyright law today, the principal one being that fair use is central to the formulation of copyright, and not a mere exception.



The third conclusion relates to the contribution of Folsom v. Marsh itself. The pre-modern cases illustrate a half-formed notion of the derivative right: unauthorized derivatives could be enjoined to defend the market of the original work, but they did not constitute a separate market unto themselves. Folsom departs from the earlier English cases in that it recognizes derivatives as inherently valuable, not just a thing to be enjoined to defend the original work against substitution. This subtle shift is important because while the boundaries of a defensive derivative right can be ascertained with respect to the effect of the defendant’s work on the plaintiff’s original market, the boundaries of an offensive derivative right can only be determined with reference to some other limiting principle. This extension of the derivative right may well have been inevitable. It seems likely that as more and more derivatives were enjoined defensively, courts and copyright owners began to see these derivatives as part of the author’s inherent rights in relation to his creation. In other words, once copyright owners were allowed to preclude derivatives to prevent competition with their original works, they quickly grew bold enough to assert an exclusive right in derivative works for their own sake. A development which, for good or ill, bridges the gap between pre-modern and modern copyright.

Download the article from SSRN at the link.

The Use of Images and Law

Jessica M. Silbey, Suffolk University Law School, has published Evidence Verité and the Law of Film, at 31 Cardozo Law Review 1257 (2010). Here is the abstract.

This paper explores a puzzle concerning the authority of certain images that increasingly find themselves at the center of legal disputes: surveillance or “real time” film images that purport to capture an event about which there is a dispute. Increasingly, this kind of “evidence verité” is used in United States courts of law as the best evidence of what happened. Film footage of arrests, criminal confessions, photographs of crime scenes (during and after) is routinely admitted into court as evidence. It tends to overwhelm all other evidence (e.g., testimonial or documentary) and be immune to critical analysis. Why would this be so?

This paper situates this phenomenon in the current legal United States context, with a brief history of “evidence verité” and its treatment at law. It then compares side-by-side two cultural institutions, photography and law, as examples of institutions with power and influence over public and popular consciousness. How do these two institutions intersect? What patterns of influence and persuasion emerge from the partnership of photographic or filmic images and the role of law? The paper explores these questions by tracing the life of certain iconic public images in hopes that doing so will tell us something about how they came to be iconic: how their circulation and reception in the United States rendered the images meaningful beyond their textual existence. Studying the circulation and recirculation of these photograph images helps make sense of how “real time” images in culture and at law might shape our understanding of important, historic events beyond the facts these images depict.

This paper is not a paper about how we understand images as a psychological or neurological matter. It is a paper about how law and legal processes frame images and how images – especially “real time” images – frame or shape the law. The photographs the paper examines include the “Migrant Mother” from the Great Depression, the bombing of Hiroshima, the flag raising at Iwo Jima during WWII, the Times Square Kiss on VJ day, the US landing on the moon, the first in utero photographs of a human fetus, and images of torture at Abu Ghraib prison.

Download the article from SSRN at the link.

Open Access To Law and Humanities Writings Via WikiSource

Timothy K. Armstrong, University of Cincinnati College of Law, has published "Rich Texts: Wikisource as an Open Access Repository for Law and the Humanities," as University of Cincinnati Public Law Research Paper No. 10-09. Here is the abstract.

Open access to research and scholarship, although well established in the sciences, remains an emerging phenomenon in the legal academy. In recent years, a number of open access repositories have been created to permit self-archiving of legal scholarship (either within or across institutional boundaries), and faculties at some leading research institutions have adopted policies supporting open access to their work. Although existing repositories for legal scholarship represent a clear improvement over proprietary, subscription-based repositories in some ways, their architecture, and the narrowly defined missions they have elected to pursue, limit their ability to illuminate the ongoing dialogue among texts that is a defining characteristic of scholarly discourse in law and the humanities. One of the wiki-based projects operated by the nonprofit Wikimedia Foundation--the Wikisource digital library - improves upon the shortcomings of existing open access repositories by bringing source texts and commentary together in a single place, with additional contextual materials hosted on other Wikimedia Foundation sites just a click away. These features of Wikisource, if more widely adopted, may improve academic discourse by highlighting conceptual interconnections among works, fostering interdisciplinary collaboration, and reducing the competitive advantages of proprietary, closed-access legal information services.

Symposium On Copyright In Culture

The University of Maryland is hosting UMUC’s Center for Intellectual Property to Host 2010 Symposium on Sustaining Culture in Copyright

WHAT: University of Maryland University College’s (UMUC) Center for Intellectual Property (CIP) will host a three-day workshop, June 22–24, 2010, entitled, “Sustaining Culture in Copyright.” With an influx of new videos, music and textual works, the 2010 symposium will explore better ways to balance the needs of cultural innovation with the rights of owners of creative works.

Peter Jaszi, professor of law, Washington College of Law, American University; and William Patry, senior copyright counsel, Google, Inc., will serve as keynote speakers. Other panel discussions will cover a variety of topics related to copyright, including social media, P2P filesharing, broadband and net neutrality.

For a full list of sessions, topics and speakers, visit www.umuc.edu/cip2010

UMUC’s CIP provides education, research and resources for the higher education community on copyright, academic integrity, and the emerging digital environment.

WHEN: Tuesday, June 22–Thursday, June 24, 2010

WHERE: Walter E. Washington Convention Center
801 Mount Vernon Place, N.W.
Washington, D.C. 20001

REGISTRATION: To register, visit www.umuc.edu/cip2010 or call 240-684-2803

COST:
Symposium Registration: (Early Rate) $240 (Member) / $300 (Non-member)
Daily Rate: $200 (Member) / $250 (Non-member)
Pre-Symposium Seminars:
(Choice of one, June 22) $100 (Member) / $135 (Non-member)
About University of Maryland University College
University of Maryland University College, headquartered in Adelphi, Maryland, is the largest public university in the United States, serving 90,000 students and offering 130 undergraduate and graduate programs online and on-site. In addition, UMUC is one of the largest public providers of online higher education in the nation. UMUC boasts a 60-year history of service to the military and currently enrolls an estimated 50,000 military service members, veterans, and their family members each year. The university offers face-to-face instruction at 21 locations throughout Maryland and educational services in 27 countries and more than 150 locations worldwide, including the Middle East. UMUC is accredited by the Commission on Higher Education of the Middle States Association of Colleges and Schools and is a constituent institution of the University System of Maryland, an agency of the State of Maryland.

Fan Fiction of the Eighteenth Century and IP

Elizabeth F. Judge, University of Ottawa Faculty of Law (Common Law Section) has published "Kidnapped and Counterfeit Characters: Eighteenth-Century Fan Fiction, Copyright Law and the Custody of Fictional Characters," at Originality and Intellectual Property in the French and English Enlightenment 22-68 (Reginald McGinnis ed.; Routledge, 2009). Here is the abstract.

Analyses of the intellectual history of eighteenth-century copyright typically focus on unauthorized printed editions (that is, the entire copying of another author’s works verbatim) and the associated copyright case law in the literary property debates, such as Millar v. Taylor and Donaldson v. Becket, which tested the status of authors’ common-law rights. This chapter turns to eighteenth-century fan fiction, to import today's term for referring to newly written fiction by fans featuring fictional characters created and made famous by another author, and especially online publication of fan fiction, in order to examine the early relationship of readers and authors to fictional characters, rather than to printed works, and the ongoing custodial interests that both readers and authors felt toward fictional characters in this period. While seemingly an anachronistic pairing to speak of “fan fiction,” which has been so strongly associated with the internet, and the eighteenth century, the characteristics that define internet fan fiction appositely describe the eighteenth-century phenomenon, excepting the medium of dissemination. As with fan fiction today, which has been at the locus of cultural and legal debates around the meanings of authorship, originality, interests, and rights, fan fiction in the eighteenth century was a focal point for unresolved and evolving views on those same issues, especially the nature of authorship, and originality, the integrity of fiction, and the reader’s role. This chapter examines the cultural discourse around fan fiction in the eighteenth century in order to shed light on eighteenth-century interpretations of originality and imitation, and the extent to which copyright law shaped (and was shaped by) cultural perceptions about the ownership and care of fictional characters and how competing interests in fictional characters contributed to the debate on copyright law. It re-considers the role that author’s rights, in the sense of moral rights and the droit d’auteur tradition played in English copyright history. Well-documented examples of extensive reader response to fictional characters that became cultural phenomena, including Samuel Richardson’s Pamela and Clarissa and Daniel Defoe’s Robinson Crusoe, spawning numerous unauthorized sequels in novels, plays, and short stories, lively correspondences between fans and the author, satires by rival established authors, and character merchandising, illustrate how appealing fictional characters who reach iconic status within a culture are subject to competing claims of ownership as well as competing affections. The chapter focuses especially on when and why popular, creative, and often even affectionate inclusions of these eighteenth-century fictional characters into works by other people were, more often than not, treated by the original authors as akin to legal wrongs against a person - ravishing, counterfeiting, and kidnapping - and treated analogously to the word-for-word copying of entire works that was condemned as “pirating,” despite the lack of legal foundation in eighteenth-century English copyright law to underlie these assertions.

Download the essay from SSRN at the link.

Charles Reade and the History of Victorian Copyright Law

Barbara Lauriat, University of Oxford Faculty of Law, has published "Charles Reade's Roles in the Drama of Victorian Dramatic Copyright," in volume 33 of the Columbia Journal of Law & the Arts (2009). Here is the abstract.

The following article describes the eccentric dramatist, novelist, journalist, and barrister Charles Reade’s direct involvement in shaping the UK law of copyright - particularly copyright in dramatic works. In addition to publishing his writings on the subject, he was active in bringing and supporting suits that led directly to changes in the law protecting dramatic works, as well as the formation of the Royal Commission on Copyright in 1875. His own questionable dealings with the works of others, however, provide a counterpoint to his zealous arguments in favor of protection, as exemplified by the story of his dramatization of Ralph the Heir, a novel written by Royal Commission member Anthony Trollope.

Download the article from SSRN at the link.

A Collection on Law and Magic

New publication: Law and Magic: A Collection of Essays (Christine A. Corcos, ed., Durham: Carolina Academic Press, 2010). This collection of 24 essays explores the very rich ways in which the rule of law and the practice of magic enrich and inform each other. The authors bring both a U.S. and a comparative law perspective while examining areas such as law and religion, criminal law, intellectual property law, the law of evidence, and animal rights. Topics include alchemy in fifteenth-century England, a discussion of how a courtroom is like a magic show, stage hypnotism and the law, Scottish witchcraft trials in the eighteenth century, the question of whether stage magicians can look to intellectual property to protect their rights, tarot card readings and the First Amendment, and an analysis of whether a magician can be qualified as an expert witness under the Federal Rules of Evidence.

Law and Art

A couple of articles on law and the art by the New York Times' Adam Liptak: here on Daniel Moore and here on Donald Johnson, serving three life terms for murder.

The Right of Publicity and "Crime of the Century" Cases

Edward Larson, Pepperdine University School of Law, has published "Murder Will Out: Rethinking the Right of Publicity Through One Classic Case," in volume 26 Rutgers Law Review (2009). Here is the abstract.

In this forthcoming article, the author uses the protracted legal battles over the right of publicity stemming from the lasting celebrity created by the so-called “crime of the century” to propose a legal test for applying the right of publicity generally. These legal battles were fought during the 1960s over the right of celebrity slayer Nathan Leopold to control the use of his name and personality in a novel, movie, and stage play. After conflicting lower court decisions that had a chilling effect on writers and publishers, the case was eventually decided against Leopold. The author agrees with this result but argues that, because there has been a tendency to decide such disputes on a case-by-case basis, similar uncertainty continues to arise in analogous cases. He proposes a clear test, easily understood by both creators and users of celebrity personality, which would balance the interests of the parties and bring added predictability to this area of the law.

Download the article from SSRN at the link.

The History of Branding and Trade Mark Law in the UK

John Mercer is publishing "A Mark of Distinction: Branding and Trade Mark Law in the UK from the 1860s," in Business History (forthcoming). Here is the abstract.

The development of branding is a neglected theme in business history. This article examines the emergence on a large scale of the unique product brand name - distinct from a company name or product descriptor - in the UK in the latter nineteenth century. It looks at the interaction of branding strategies and UK trade mark law, which is shown to have accorded property rights in word-based marks only gradually and shaped the development of branding in the UK. Trademark application data from the 1870s to the 1920s is cited to illustrate the widespread take-up of the brand name in the UK from the 1880s, and to consider its use by different types of consumer goods firms. The article then analyses the effects of such branding into the twentieth century, including its contribution to competitive advantage, the introduction of brand architecture, and the problem of brand genericisation. It is argued that the adoption of the brand name marked a major shift in brands, from descriptions of origin to objects of artifice.

Download the article from SSRN here.

The Rhetoric of Property Law

Johanna Gibson, Queen Mary University of London School of Law, has published "The Lay of the Land: The Geography of Traditional Cultural Expression," in Intellectual Property and Traditional Cultural Expressions in a Digital Environment 182-201 (C. B. Graber & M. Murr-Nenova eds.; Cheltenham: Edward Elgar, 2008). Here is the abstract.

This paper examines the nature of land or territory as a linking concern in the discussion of intellectual property, traditional knowledge and the digital environment. Fundamentally, intellectual property models are circumscribed by the legal, economic and philosophical western traditions of land and land ownership and the translation of traditional knowledge within intellectual property frameworks imposes a similarly competitive, rivalrous and crowdable imperative upon that subject matter. In mapping traditional knowledge through intellectual property, traditional relationships to land (through the rendering of the knowledge embedded in that land) are similarly translated into competitive western systems, and indeed traditional and indigenous communities have been subjected to the same rationalisation, whereby authenticity is realised and "proven" externally through attachment to the land in what often derives from a colonial construction of Indigenous and traditional interests. This construction is vested in the continuity of connection to place and geographic community which ultimately betrays a self-conscious western construction of cultural resources and knowledge. That is, such knowledge and the relationship to that knowledge is understood only within the context of the institution of western legal paradigms and the legitimated justice of individual property interests. Notably, when it comes to the digital environment, industries based upon intellectual property struggle to chart and define territory by transforming knowledge into “land” as it were. Much has been said about the relationship between intellectual property and personal property, but what is of particular interest to this paper is the way in which an idea is reterritorialised by intellectual property models so that land ownership (at least in a conceptual sense) becomes intriguingly relevant. In examining the role or interference of intellectual property in traditional knowledge protection and indeed interpretation, this paper examines the former not through the expression of ideas as chattels but rather through the way in which ideas and information relate to territories; that is, the relationship between intellectual property frameworks and, not goods (as personal property), but land (as real property).

Download the essay from SSRN here.

Law In Willy Wonka

Jeanne C. Fromer, Fordham Law School, has published "Trade Secrecy in Willy Wonka's Chocolate Factory," in The Law and Theory of Trade Secrecy: A Handbook of Contemporary Research (Rochelle C. Dreyfuss and Katherine J. Strandburg eds.; Edward Elgar Publishing, 2010). Here is the abstract.

Roald Dahl’s "Charlie and the Chocolate Factory" is well-known as a dark fantasy in which five children win a visit to a whimsical candy company. Less conspicuous is the legal issue of trade secrecy driving the novel’s plot. Secrecy is not indigenous to fictional representations of the candy industry, but is widespread throughout its real-world confectionary counterparts of today and yesteryear. An investigation of the need for secrecy in this commercial sphere raises fundamental questions about the role of legal protection for misappropriations of secrets when actual secrecy seems to be paramount and about the relationship between trade secrecy and patent law.

Download the essay from SSRN here.

Intellectual Property and the Meaning of Culture

Katya Assaf III has published "The Dilution of Culture and the Law of Trademarks" in volume 49 of IDEA: The Journal of Law and Technology (2008). Here is the abstract.

The cultural meaning of a trademark is built up by creating associative links between the mark and various positive cultural signs such as freedom, youth and happiness. This article argues that these links are reciprocal. That is, while the trademark begins to carry some of the meaning of the cultural signs it has been linked to, these cultural signs also absorb some of the meaning of the mark. This article develops a semiotic model, which helps to analyze the flow of meaning from non-commercial cultural signs into trademarks and from trademarks into other contexts. It argues that, by protecting the cultural meaning of trademarks, the legal system encourages the commercialization of culture and reinforces the dominance of consumer culture in our society.

Download the article from SSRN here.

Salinger Sues Over a Sequel

Ron Rosenbaum comments for Slate on the J. D. Salinger lawsuit over 60 Years Later: Coming Through the Rye here.

More On the Norms of Comedy

Jennifer E. Rothman, Loyola of Los Angeles Law School, has published "Custom, Comedy and the Value of Dissent," at 95 Virginia Law School In Brief 19 (2009). Here is the

In this essay, I comment on Dotan Oliar and Christopher Sprigman's article, There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008). Their study of the quasi-intellectual property norms in the stand-up comedy world provides yet another compelling example of the phenomenon that I have explored in which the governing intellectual property regime takes a backseat to social norms and other industry customs that dominate the lived experiences of many in creative fields. The microcosm of stand-up comedy reinforces my concern that customs are being used to expand IP law both inside and outside the courtroom. This response to Oliar & Sprigman rejects the suggestion that the existence of social norms challenges the incentive rationale for copyright law. I also conclude that the norms that have developed in the stand-up community are not worthy of judicial or legislative deference and suggest some ways that comics and the courts can disrupt the restrictive norms that Oliar and Sprigman identify.

Download the essay from SSRN here.

Gender, Copyright, and Filk Literature

Melissa L. Tatum, University of Arizona College of Law, Robert E. Spoo, University of Tulsa College of Law, and Benjamin Pope, University of Arizona, have published Does Gender Influence Attitudes toward Copyright in the Filk Community? as Arizona Legal Studies Discussion Paper No. 09-21. Here is the abstract.

Over the past few decades, the filk community has expanded from a small group of science fiction convention-goers who occupied unused convention rooms during the late night hours to a community large enough to organize several dedicated filk conventions each year, a Hall of Fame, and an annual awards ceremony. While many filk songs are original lyrics set to original music, many more filk songs consist of lyrics written to existing music and/or lyrics based on characters/worlds created by other people. These practices potentially create problems in light of existing intellectual property law. In this paper, we explore those issues and whether a filker's gender influences his or her attitude towards intellectual property law. After setting out a basic explanation of filk and the intellectual property issues, the article details the various statistical results generated from the databases we built (one objective and one subjective) and draws some conclusions about gender and filk.

Download the paper from SSRN here.

Conference Announcement

Sixth Annual IP/Gender: Mapping the Connections
Female Fan Culture and Intellectual Property

American University Washington College of Law’s Program on Information Justice and Intellectual Property, Women and the Law Program, and Journal of Gender, Social Policy & the Law in collaboration with American University's Center for Social Media and The Organization for Transformative Works. Featuring projects and multimedia works reflecting on gender, copyright, fair use, freedom of expression and fan culture.

Here's a link to more information.

Spiritualists and Copyright

Christine A. Corcos, Louisiana State University Law Center, has published 'Ghostwriters': Spiritualists, Copyright Infringement, and Rights of Publicity, in Law and Magic: A Collection of Essays (Christine A. Corcos, ed.: Durham, NC: Carolina Academic Press, 2009). Here is the abstract.

In 1917, British-born editor and publisher Mitchell Kennerley (1878-1950) offered for sale Jap Herron, a new novel which he implied was written by the eminent Mark Twain. There was no author's name on the title page, but the frontispiece was a portrait of Mark Twain. This book included an introduction by St. Louis journalist and author Emily Grant Hutchings explaining the odd origins of the novel. Indeed, they were odd - Mark Twain, whose real name was Samuel Clemens, had been dead for six years, and the manuscript of Jap Herron was not some old piece of fiction he had left behind in a desk to be discovered after his demise. In her preface, Mrs. Hutchings claimed that Twain, to whom she referred familiarly as Mark, and whom she had met during his life, had dictated the book, as well as two short stories, to her through a Ouija Board, that is, through spirit communication via a board labeled with the alphabet, and with the assistance of a spirit medium, Mrs. Lola V. Hays.

Intellectual Property and Rhetoric

Patricia Louise Loughlan, University of Sydney Faculty of Law, has published "'You Wouldn't Steal a Car': Intellectual Property and the Language of Theft," at 29 European Intellectual Property Review 401 (2007). Here is the abstract.

It is actually quite easy to tell a good guy from a bad guy when one of the guys is being called a thief. He is the bad guy. It is in fact quite hard to think of a thief as any sort of good guy at all once you have begun thinking about him, even just impressionistically, as a thief.

This paper will scrutinise and consider the legitimacy of the pervasive rhetorical use of the language of 'theft' in intellectual property discourse. That language, comprised of words like 'theft', 'thief', 'stealing' 'burglar's tools' and occasionally even 'robbery,' is increasingly employed to describe the unauthorised use of intellectual property, so that new social meanings become attached to acts such as the digital transfer of a musical file or a film:

YOU WOULDN'T STEAL A CAR
YOU WOULDN'T STEAL A HANDBAG
YOU WOULDN'T STEAL A TELEVISION
YOU WOULDN'T STEAL A DVD
DOWNLOADING PIRATED FILMS IS STEALING
STEALING IS AGAINST THE LAW

Download the paper from SSRN here.