Columbia Journal of Law and the Arts最新文献

{"title":"Merger as a Matter of Extrinsic Constraints","authors":"Joseph C. Gratz","doi":"10.7916/JLA.V43I3.5883","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.5883","url":null,"abstract":"What is merger? Let’s first take a look at what the Second Circuit says merger is. The Second Circuit says merger happens “in those instances where there is only one or so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself.”1 A situation where, if you’ve got a monopoly on a particular way of expressing something, you’ve effectively got a monopoly on that thing—and we don’t want you to have a monopoly on that thing. I’ll talk in a little bit about what the kinds of things are. Why only one “or so few” ways? To avoid a situation where there are three ways of expressing it, and three people express it in all of those three ways, and all get exclusive rights in their particular way. Now there is still no available way for the public to express that thing that we want the public to be able to express without the interference of copyright.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127056313","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":"Curious Cases of Copyrightability Before the Copyright Office","authors":"Regan A. Smith","doi":"10.7916/JLA.V43I3.5877","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.5877","url":null,"abstract":"Administering the national registration program is a core function of the Copyright Office. In most cases, determining copyrightability of a claim submitted for registration is simple, and the Office does not need to correspond over or otherwise belabor the mine run of applications to determine whether a work possesses the creative spark necessary to register a copyright interest. As the Supreme Court has noted, “the requisite level of creativity is extremely low,” and “[t]he vast majority of works make the grade quite easily.” \u0000Sometimes, however, applied-for works invoke modes of authorship that test that standard, and the Copyright Office must resolve these claims. Applicants may contest refusals to register claims, culminating in the ability to lodge a final administrative appeal to the Copyright Office Review Board. As a member of that Board for the past four years, I’ve seen the Office apply established principles of copyrightability to a variety of dynamic claims.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125870216","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":"Applying Star Athletica’s Teachings in the Copyright Office","authors":"Robert J. Kasunic","doi":"10.7916/JLA.V43I3.5888","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.5888","url":null,"abstract":"The Copyright Office does not have all the answers about where the lines are drawn between works of applied art and works of artistic craftsmanship. I don’t think the decision and opinion in Star Athletica answered all of the questions that we had. And in many ways it did not answer any of them, and in part made some of the issues more confusing. Because as Jane Ginsburg had said, the dress designs at issue were all filed with the Copyright Office as two-dimensional drawings. Some of them did depict the cheerleader outfit as well. But these were never being claimed as three- dimensional dress designs or anything else. The focus of these was on the applied art and not on the drawings of cheerleader uniforms. \u0000 \u0000 \u0000 \u0000 \u0000Going back for a minute to prior to the Star Athletica decision, the Copyright Office’s prior approach to separability was that the pictorial, graphic, or sculptural feature satisfies the conceptual separability requirement only if the artistic feature and the useful article could both exist side-by-side and be perceived as fully realized separate works; one an artistic work and the other as a useful article. And to us this worked very well for quite some time, to look and see whether there was something that was fully separable as an artistic work—such as a pictorial work or sculptural features that would be separable—but still leaving the useful article intact.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130011935","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 Protection for Applied Art and Works of Artistic Craftsmanship After Star Athletica","authors":"J. Ginsburg","doi":"10.7916/JLA.V43I3.5887","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.5887","url":null,"abstract":"As the very first session proclaimed, the Star Athletica case has not been a model of total clarity on the Supreme Court’s part. I’m going to explore that proposition. I will go through some basic elements of the copyright statute, and will then apply those rules to several examples. The Copyright Act sets out the category of pictorial, graphic, and sculptural (“PGS”) works, whose statutory definition includes applied art. That was the subject matter at issue in Star Athletica. The statute also provides that PGS works “shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned.” “Works of artistic craftsmanship” has been a somewhat overlooked category, but I think, as a result of Star Athletica and also the pending amendments of the Compendium of U.S. Copyright Office Practices, that this category will receive a lot more attention. It does not, however, necessarily follow that the meaning of that category will be any clearer than the standard for what is a PGS work.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130959276","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":"Litigating Scènes à Faire","authors":"Dale M. Cendali","doi":"10.7916/JLA.V43I3.5885","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.5885","url":null,"abstract":"Scenes a faire: What is it? Generally speaking, it’s when certain things are so commonplace, and so naturally associated with the treatment of the subject, that everyone needs to be able to use them in order to also write, or talk, or deal with that subject. What have courts found to be scenes a faire? Lots of different things, in lots of different contexts. Some are easy to picture: If you’re going to have an underwater world, having sand dollars as money, oyster shells as plates, and things like that—that makes some sense. Aquaman rides a seahorse; other underwater people might ride seahorses. Or the idea that superheroes wear capes and masks— you can understand that that’s something common to the genre that everyone should be free to use. Similarly, if you are setting something in World War II, you might have a German beer hall. If you are setting something in a small town in the American South, you might have a country music bar with a gritty atmosphere and music playing from a jukebox; it’s going to be playing a sad song, and then dancing will ensue. More things may happen after that, but the setting could have common elements.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127350611","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":"Making Sense of Scènes à Faire Through the Lens of Feist","authors":"Robert W. Clarida","doi":"10.7916/JLA.V43I3.5886","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.5886","url":null,"abstract":"Scenes a faire: what is it, and why do we need a French name for it? Because when we explain it in English it doesn’t make any sense at all. Scenes a faire, Black’s Law Dictionary says, means “standard or general themes that are common to a wide variety of works and therefore are not copyrightable.” A number of other definitions of the term similarly deny copyrightability. For example, this is from a First Circuit case: the court “denie[d] copyright protection to elements of a work that are for all practical purposes indispensable, or at least customary, in the treatment of a given subject matter.” So again, we deny copyright protection. As Dale Cendali spoke to moments ago, most courts don’t look at it that way. The majority view is that it does not invalidate the copyright; it’s not a question of copyrightability. It’s a question of what is infringing activity and whether sharing this element actually rises to the level of infringement or not, not whether the scene a faire is copyrightable.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124005210","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":"How Much Should Being Accommodate Becoming? Copyright in Dynamic and Permeable Art","authors":"R. Brauneis","doi":"10.7916/JLA.V43I3.5882","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.5882","url":null,"abstract":"Much of the art in genres ranging from participatory art and performance art to environmental art and found art is dynamic, or permeable, or both. That is to say, the art may be unstable or ephemeral, and may invite unpredictable change though the influence of natural or human forces, and it also may have weak, unclear boundaries that blur text and context. Dynamic and permeable art seek to present the world as a continuum in space and time – as becoming –challenging our commitments to boundaries and objects. By contrast, copyright law is firmly committed to being. Its central subject, the work of authorship, must be stable and discrete. Works of authorship can neither change over time, nor have unknown boundaries. \u0000  \u0000One might think that as a consequence, dynamic and permeable art can never be subject to copyright protection. Yet copyright has developed a powerful set of tools to frame various kinds of becoming as being—that is, as stable, bounded objects that can qualify as works of authorship. This essay addresses three of those tools: (1) considering ranges and correlations as copyrightable elements of works; (2) using non-notational, trans-category fixation in audio and video; and (3) considering site-specific and found art as involving compilation. It will consider how each of the tools accommodates dynamic and permeable art, and will then consider the copyright policies that should be taken into account when setting limits for each tool’s use. All three tools raise questions of whether the works they delineate are of sufficient complexity to be more than “ideas,” and whether those works fall into a copyrightable category of work of authorship. Some of the tools also raise distinct issues. For example, when works are composed of ranges and correlations, those ranges and correlations should be conspicuous enough to provide adequate notice, and foreseeable enough that they can be said to have been authored by the artist claiming to have created them. The essay also considers the extent to which the being of copyright does not do full justice to the becoming of dynamic and permeable art, because a work of authorship sufficiently stable and discrete to be the subject of copyright will not include the full, ongoing experience of an open creation and its serendipitous transformations.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122456241","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":"How Conceptual Art Challenges Copyright’s Notions of Authorial Control and Creativity","authors":"Christopher Buccafusco","doi":"10.7916/JLA.V43I3.5881","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.5881","url":null,"abstract":"Here’s the basic argument: that to the extent that someone exerts too little control or that there is too much unpredictability about the way in which the work will be produced, then that person is at risk of being declared not an author of the work. Copyright law looks for control and predictability, and if there’s not enough of either, then copyright law and the Copyright Office may conclude that the creator is not an “author” of the work. On the other hand, to the extent that there is too much control or too much predictability, then authors run the risk of being told that their work is not creative. In fact, the strategy for an author is to balance these sorts of competing requirements: to exert control over the ultimate product, but not so much control that you risk losing the opportunity for creative expression.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"20 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125888040","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 Five W’s of Merger","authors":"Joshua L. Simmons","doi":"10.7916/JLA.V43I3.5884","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.5884","url":null,"abstract":"On October 4, 2019, Columbia Law School's Kernochan Center for Law, Media and the Arts hosted a symposium titled “Exploring Copyrightability and Scope of Protection” that was cosponsored by the U.S. Copyright Office. This article is based on a transcription of remarks from a panel on the scope of copyright protection. It focuses on fundamental questions of merger, including from whose perspective — the copyright owner for the alleged infringer — at what point in time — the creation of the work or the alleged infringement — and where in the copyright infringement analysis should merger be considered. It concludes that, when merger is considered based on its intended purpose, its role in determining the scope of copyright protection makes the most sense at the time that the work is created and the from the perspective of the copyright owner.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117304537","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":"Do We Need a New Conception of Authorship","authors":"Shyamkrishna Balganesh","doi":"10.7916/JLA.V43I3.5880","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.5880","url":null,"abstract":"Here’s the core idea that I want to suggest: that one of the concerns that we have with conceptual art going forward, and with the question of copyrightability, is that copyright law, for a really long time now, has had a nascent and unstated theory of authorship that connects to the way in which we conceptualize the connection between inputs and outputs, agency in the real world, and the nature of the human connection to the work—and that these works of conceptual art are calling that theory into question. And part of the concern is that this test and this conception, being unstated—when we take a step back to try and understand how we might update it or liberate it from these conceptions, we have a hard time wrestling with it, to nail it down. And so, what I want to leave you with is the question of whether it’s time to update our traditional conception of authorship.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"8 4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127512043","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}