Columbia Journal of Law and the Arts最新文献

{"title":"An Approach to Why Typography Should be Copyrightability","authors":"Gloria C. Phares","doi":"10.7916/D8VX0GZF","DOIUrl":"https://doi.org/10.7916/D8VX0GZF","url":null,"abstract":"Thank you. I’m not going to talk about anything that’s nearly as sexy as tattoos. I want to thank all the organizers and staff for their hard work and for including me in what has turned out to be an extremely interesting day. June earlier said that this panel is concerned with the scope of protection, and I am here to talk about typefaces, which, in the United States, unlike most of the rest of the world, have no copyright protection at all. With the exception, in a way, of the fact that the computer programs that produce digitized typefaces are protected by copyright, although the typefaces that they produce are not. My contention is that under the 1976 Act, typefaces should be protected. To start, I just want to—since pictures say a thousand words and I have so little time— I want you to look at these fonts and think about the extent to which you can perceive ornamentation and artistic effort apart from the basic letter form. There are many different kinds of typefaces. On your left, there are these various sans serifs, then moving into serif typefaces. This is the very famous Helvetica typeface, which is used throughout the New York subway system; that is its standard type.1 And then we move on to typefaces which are named for their style of art, like the Bauhaus 93, or that come from artistic movements in historical contexts. And then, because the Copyright Office treats calligraphy in the same way that it treats typeface, that is to say, it is not protected, this is a page from Carmina Burana by Klaus-Peter Dienst, which is entirely in calligraphy.2 It portrays the first verses of Carmina Burana, in varying ways, black on white and white on black. I think that it is almost impossible not to have an aesthetic reaction to typefaces. They are usually selected and designed in aesthetic ways that are best suited to express the works that are being printed, whether it’s a comic book, or a Bible, or the signs in the subway. The treatment of typeface as art is not new. In 2007–08, MoMA had an exhibition on the 50 anniversary of the creation of the Helvetica typeface.3 This was not an accident.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121293951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Evolution of Authorship: Work Made by Code","authors":"Annemarie Bridy","doi":"10.7916/D8CV4J6W","DOIUrl":"https://doi.org/10.7916/D8CV4J6W","url":null,"abstract":"This short article — a transcript of remarks from the Kernochan Center’s fall 2015 symposium, “Copyright Outside the Box” — considers whether U.S. copyright law requires human authorship as a precondition for protection of an artistic work. Tracing the surprisingly long history of copyright law’s grappling with the status of computer-generated works, I ask whether the increasing sophistication and independence of generative code should cause us to rethink embedded assumptions in the law about the meaning and origin of creativity and authorship. Because copyright law already accommodates non-human authors (i.e., corporations) through the work made for hire doctrine, I argue here (revisiting my 2012 article Coding Creativity) that recognition of AI authorship may be a less profound doctrinal leap than it may seem. Other countries already protect works generated autonomously by computers. In the United States, we can decide for policy reasons that machine-authored works should not be protected by copyright, but that choice is not inevitable given the current state of the law both here and abroad.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114886461","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“Courts Have Twisted Themselves into Knots”: U.S. Copyright Protection for Applied Art","authors":"J. Ginsburg","doi":"10.7916/JLA.V40I1.2061","DOIUrl":"https://doi.org/10.7916/JLA.V40I1.2061","url":null,"abstract":"In copyright law, the marriage of beauty and utility often proves fraught. Domestic and international law makers have struggled to determine whether, and to what extent, copyright should cover works that are both artistic and functional. The U.S. Copyright Act protects a work of applied art \"only if, and only to the extent that, its design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.\" While the policy goal to separate the aesthetic from the functional is clear, courts' application of the statutory \"separability\" standard has become so complex and incoherent that the U.S. Supreme Court has agreed to hear an appeal from a case in which the appellate court, echoing sister Circuits, expressed the lament quoted in the title of this article. The article will review the genesis and application of the statutory standard, with illustrations from several of the cases, and will offer two conclusions and a legislative proposal. First, the controversy before the Court does not concern the \"design of a useful article,\" and therefore does not require the Court to resolve the meaning of \"separability.\" The controversy nonetheless reveals the importance of ascertaining whether the contested design is in fact the design of a \"useful article.\" A pre-existing pictorial, graphic or sculptural work applied to a useful article is not itself a useful article, and courts need not \"twist themselves into knots\" endeavoring to parse the meaning of the statutory separability standard. Were the Supreme Court to decline to reach separability on the ground that resolution of the Varsity Brands dispute does not in fact require it, some might be disappointed that the Court would fail to tidy the disarray in the lower courts. But the predicate issue – what is the design of a \"useful article\" – also warrants more attention than lower courts have given it. Thus, were the Court to leave separability to a case that in fact poses that issue, the Court would still contribute to clarifying this area of copyright law.Second, the statutory requirements of separate identifiability and independent existence apply to \"features\" of the design, not to the entire shape of a useful article; attempts (including those ventured by this article) to extend separability analysis to the useful article's form as a whole prove unworkable. Accordingly, rather than continuing to struggle with an intractable statutory copyrightability standard, this article proposes the enlargement of Title 17's sui generis design protection regime to cover original designs of most useful articles.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115384885","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Misapplication of “Mastermind”: A Mutant Species of Work for Hire and the Mystery of Disappearing Copyrights","authors":"F. J. Dougherty","doi":"10.7916/D8KD1ZBW","DOIUrl":"https://doi.org/10.7916/D8KD1ZBW","url":null,"abstract":"Recent decisions in both the Ninth (Garcia v. Google) and Second (Casa Duse 16) Circuit have applied concepts of \"mastermind\" authorship or \"dominant author\" to claims of copyright in individual contributions of actors and directors to a motion picture. This article, which is a transcript of a presentation at Columbia Law School, describes the roots of the \"mastermind\" concept in copyright and argues for its mis-application in this context.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115316575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What Belongs in Copyright","authors":"Joseph P. Liu","doi":"10.7916/jla.v39i3.2072","DOIUrl":"https://doi.org/10.7916/jla.v39i3.2072","url":null,"abstract":"The title of my talk today is, “What Belongs in Copyright?” When Jane invited me to speak, she asked me to provide a “more Olympian perspective” on the issues of authorship, originality, and fixation that are the subjects of today’s conference. And while I don’t pretend to have any Zeus-like powers of insight or observation, I do hope to provide at least some general thoughts about the question implied by the title of this conference, namely, what properly belongs within the scope of copyright. In particular, I want to spend some time talking about how copyright law constructs the box that defines what is inside copyright and outside. I will start by very briefly surveying some of the doctrines that define what can be copyrighted. I will then talk a bit about what theory or set of theories we might look at to help decide these difficult boundary cases, to help decide what belongs in that box. And finally, at the very end I will suggest that underlying all of these doctrines and theories are relatively unexamined aesthetic judgments about what counts as copyrightable subject matter, judgments that we should probably take more expressly into account when deciding when something is copyrightable. My goal in these remarks is not so much to provide any specific answers, but to set the table and provide some general frameworks for the more detailed discussion to come.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"408 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115587917","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Author Was Not an Author: The Copyright Interests of Photographic Subjects from Wilde to Garcia","authors":"Eva E. Subotnik","doi":"10.7916/D8TX3FSM","DOIUrl":"https://doi.org/10.7916/D8TX3FSM","url":null,"abstract":"Toward the end of his dissent in Garcia v. Google, Judge Alex Kozinski remarked that “[w]hen modern works, such as films or plays, are produced, contributors will often create separate, copyrightable works as part of the process.” Judge Kozinski’s characterization of plays (or even films) as “modern works” opens the door to an examination of that claim with respect to another genre of modern work: the photograph. This essay focuses on the treatment of claimed authorial contributions by photographic subjects to the photographs in which they are portrayed. It traces the analysis of this issue from the early photography cases (and provides the relevant litigated images) to present times. What emerges is a forceful line of precedent that largely did not consider, accept, or emphasize a photographic subject’s authorial contributions to a finished photographic image. Coming full circle, I argue that longstanding judicial instincts on this front may help explain the outcome in the Garcia case.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114581185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Can the New York Legislature Bring Back Authentication Boards? The Effect of Proposed Legislation on Liability for Art Authenticators","authors":"Hannah Schechter","doi":"10.7916/D8Z03MR5","DOIUrl":"https://doi.org/10.7916/D8Z03MR5","url":null,"abstract":"Authenticators have been afraid of being held liable for their opinions since the seminal case of Hahn v. Duveen. However, the chilling effect of liability has become even more apparent in the past few years, since several artist foundations have been sued, and have closed their authentication boards to avoid the costs of defending more lawsuits. The New York Senate has passed a Bill S1229A to increase the legal protections for authenticators, but the state congress has yet to vote on the bill. This note lays out in Part I how authenticators, in particular artist foundations as authors of catalogues raisonnes, currently function in the art market, and how the financial stake in authenticity opinions has increased. It will also delineate the existing legal protections and liabilities that apply to authenticators, and how these liabilities have likely increased due to recent court decisions in New York. The increased potential for liability is now silencing some of the greatest authorities in the art community. Authentication boards were once seen as a solution to this liability issue, because they allowed experts to pool their risk and to come to a consensus. Now, many Boards are dissolving, as they have become the focus of too many jilted collectors. The closure of authentication boards has created a void in the art market: many owners are unable to secure the assurance of authenticity they need to sell their works at “appropriate” prices. Foundations as authors of catalogues raisonne are also exposed to more liability now, though they are still functioning. But if foundations stop publishing complete catalogues, the art market would become even less stable. Two recent landmark cases in New York that are at the center of this trend are Thome v. Alexander & Louisa Calder Foundation and Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, Inc. Both of these precedents have troubling ramifications for authenticators. In Part II, this note will examine how proposed legislation (Bill S1229A) would (or would not) enhance legal protections for authenticators as intended. Bill S1229A may provide some protection for authenticators regarding tort liability by making it easier for defendants in frivolous suits to recover attorney fees, but it is not likely to provide enough protection to incentivize the authentication boards to return to the market. Finally, in Part III, this note will suggest a stronger scheme for protecting authenticators that the legislature could pass, while also recognizing the limitations the New York Legislature faces in addressing the current chilling effect on authenticators. If the New York Legislature wants to change this situation, they need to take more drastic measures to compensate authenticators for defending themselves in court, to cut short the time spent in court, and to disincentivize frivolous plaintiffs in the first place. This can be better achieved by implementing the unamended version of the bill, S1229, whic","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"43 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114109255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Copyright Alert Enforcement: Six Strikes and Privacy Harms","authors":"B. Depoorter, A. Hiel","doi":"10.7916/D81R6QX0","DOIUrl":"https://doi.org/10.7916/D81R6QX0","url":null,"abstract":"Copyright holders have deployed a wide range of enforcement strategies this past decade. In an initial, punitive stage, content industries targeted individual copyright infringers by way of an extensive settlement demand campaign and obtained statutory damage awards in a few high profile file-sharing lawsuits. Recently however, copyright holders drastically reversed course, abandoning punitive measures in favor of a “copyright information approach” that enlists Internet service providers into sending copyright infringement notifications to subscribers.Commentators have welcomed this shift towards copyright alert systems as providing a more balanced approach to copyright enforcement that might improve copyright law’s normative acceptance. Copyright industries are optimistic that the new copyright alert system will increase copyright awareness and decrease copyright infringing behavior.This Article shows that the optimism with copyright law’s recent developments is misplaced. Based on social science research and insights from an empirical study conducted for this Article, we argue that architects of the copyright alert system have underestimated the robustness of social norms and have failed to anticipate the negative reactions to a copyright information system, in particular as relating to privacy harms.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132771277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Speech and the Truth-Seeking Value","authors":"B. Murchison","doi":"10.2139/SSRN.2731850","DOIUrl":"https://doi.org/10.2139/SSRN.2731850","url":null,"abstract":"Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or “functional” truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities — survival, progress, and character — without insisting on truth in an absolute or transcendent sense. Third, the law’s current treatment of truth-seeking in First Amendment cases turns on whether a case implicates the truth of the past, present, or future. Cases about past truth involve its knowability; cases about present truth involve its hiddenness; and cases about future truth involve its falsification. Because judicial treatment of truth-seeking in each of these groupings is underdeveloped, legal thought can benefit from literary works by three major novelists: Paul Scott, author of Staying On; Kazuo Ishiguro, author of Never Let Me Go; and Ian McEwan, author of Atonement. Each of these works clarifies an important aspect of the truth-seeking value of expressive freedoms. The Article concludes by considering the value’s limitations, focusing on the complex setting of campaign finance.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"141 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122124340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Who Owns Our Ancestors' Voices? Tribal Claims to Pre-1972 Sound Recordings","authors":"T. Reed","doi":"10.2139/ssrn.2764520","DOIUrl":"https://doi.org/10.2139/ssrn.2764520","url":null,"abstract":"Recordings of Native Americans performing ceremonies, songs, oral histories, and other oral literatures made prior to 1972 comprise a significant portion of media housed in American museums, universities, and government institutions. But, who owns them? Answering this question requires examining the special place of pre-1972 sound recordings within American copyright law; grappling with the complex terrain of jurisdiction over American Indians, their lands and cultures; and reconciling indigenous ownership systems with those based on European legal models and philosophies. As many tribes are now seeking exclusive ownership over valuable cultural knowledge and practices encapsulated in these recordings, and instances of cultural appropriation from Native American communities are on the rise, ownership of these sound recordings is becoming increasingly important. This article attempts to elucidate the ownership status of sound recordings made on the lands of Federally Recognized Indian Tribes prior to 1972, and to provide constitutional and policy justifications for why Tribal statutes, common and/or customary law should be the primary forms of law protecting these recordings from unauthorized exploitation and appropriation.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133173068","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}