Columbia Journal of Law and the Arts最新文献

{"title":"Burdens of the Dead: Postmortem Right of Publicity Statutes and the Dormant Commerce Clause","authors":"C. Ronald","doi":"10.2139/SSRN.3195000","DOIUrl":"https://doi.org/10.2139/SSRN.3195000","url":null,"abstract":"This Note argues that current state postmortem right of publicity statutes are unconstitutional under the dormant Commerce Clause. The dormant Commerce Clause doctrine is an implicit restriction within the Commerce Clause that prohibits states from regulating interstate commerce. The current patchwork of state postmortem right of publicity statutes violates the dormant Commerce Clause in two different ways. \u0000First, postmortem right of publicity laws containing “all comers” provisions like those in Indiana, Washington, and the proposed bill in New York violate the dormant Commerce Clause because they can be applied extraterritorially to the estates of nonresident individuals. By allowing non-resident estates to bring right of publicity actions, these laws can be used to stifle commerce occurring wholly outside of the state—precisely the sort of burden the dormant Commerce Clause prohibits. \u0000Second, even those postmortem right of publicity laws that do not contain “all comers” provisions can violate the dormant Commerce Clause when applied to certain businesses operating without distinct geographic boundaries, such as websites. Courts have struck down state laws regulating website content in the past under the dormant Commerce Clause, reasoning that such laws create de facto national regulation and impose the policy preferences of one state on other states in which a particular website can be accessed. The same principle can be applied to state postmortem right of publicity laws, which in effect require website operators using the likenesses of deceased individuals to tailor their business practices to the most expansive postmortem right of publicity provisions. In this way, state postmortem right of publicity statutes impose significant costs on Internet content providers by adding another group of right holders with which those content providers must negotiate. The desire to protect individuals from commercial exploitation after death—especially beloved celebrities like Prince—is understandable. The dormant Commerce Clause, however, prohibits one state from designing the means by which that protection is afforded across the entire country. \u0000This Note proposes that the only means of remedying the constitutional issue posed by the current patchwork of postmortem right of publicity statutes is through federal action. Congress must either create a federal right of publicity or explicitly authorize states to create their own right of publicity laws. \u0000Part I traces the origination and evolution of state postmortem right of publicity laws over the past forty years, concluding with New York’s recently proposed bill. Part II examines current dormant Commerce Clause jurisprudence and how the dormant Commerce Clause has been applied to invalidate extraterritorial state laws and regulations of the Internet. Using the recently proposed bill in New York as a case study, Part III shows that: (1) postmortem right of publicity laws with “all comers” provisions ar","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"103 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116129694","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 Trademark Law Is Learning from the Right of Publicity","authors":"Barton Beebe","doi":"10.7916/JLA.V43I3.2000","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.2000","url":null,"abstract":"In 2006, Stacey Dogan and Mark Lemley published the now classic article “What the Right of Publicity Can Learn from Trademark Law.” There they urged us to “[r]econceiv[e] the right of publicity as a trademark-like right,” particularly because “looking at the right of publicity through the lens of trademark law offers logical ways to limit the right.” Right of publicity law’s failure to incorporate trademark law’s limitations had resulted, they argue, in the right of publicity functioning as “a mutant version of trademark policy . . . .” \u0000I argue here in response that regrettably, notwithstanding Dogan and Lemley’s good advice, the reality is that it is trademark law that has become more like right of publicity law. Indeed, trademark law is in danger of becoming a “mutant version” of right of publicity policy. To defend this claim, I will first briefly survey the conventionally-recognized similarities and differences between trademark law and right of publicity law. I will then propose a more complicated—and, I think, more accurate—comparison between the two areas of law and argue that they are converging in many important ways, giving us the worst of both worlds. In what follows, I will focus more on trademark law, not only because many other contributions to this Symposium thoroughly discuss right of publicity law, but also because I think we should be especially concerned with trademark law’s mutation in the age of Burwell v. Hobby Lobby Stores and Citizens United v. Federal Election Commission into a kind of right of publicity law for corporate personhoods. \u0000Before I proceed, I should emphasize one point from the start. I very much doubt that Dogan or Lemley would disagree with the general thrust of my argument, not least because much of it draws upon other work by them.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"162 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129695524","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":"Potentiating Loopholes: How Erratic and Piecemeal Implementation of the 1970 UNESCO Convention Has Failed to Protect Cultural Antiquities","authors":"William Kuzma","doi":"10.7916/JLA.V42I4.1986","DOIUrl":"https://doi.org/10.7916/JLA.V42I4.1986","url":null,"abstract":"Despite centuries-old international concerns, American protection of international cultural antiquities is a relatively recent phenomenon. For example, the United States joined a 1954 multilateral treaty on the protection of cultural antiquities only once the treaty had become binding international customary law, and thus likely binding on the United States nonetheless. The United States has been reticent to join many of the major treaties that protect cultural antiquities, and its adoption of these treaties remains piecemeal and inconsistently enforced. \u0000 \u0000 \u0000 \u0000There are loopholes in the present international system that continue to permit looting and pillaging to take place worldwide. In this Note, I posit that the current implementation scheme of the 1970 UNESCO Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership and Cultural Property (1970 UNESCO Convention), both in the United States and in other countries, creates these loopholes, which in turn render the entire system ineffectual. Despite the many attempts at creating broad, multilateral conventions to globally protect cultural antiquities, the United States is only party to two sections of the 1970 UNESCO Convention,9 and it only joined the 1954 Hague Convention in 2009. Additionally, joining the 1954 Hague Convention was merely a formality for the United States because several provisions had already become customary international law and were thus binding on the United States nonetheless.10 As I will show below, the United States’ failure to fully adopt international law on the protection of cultural antiquities hinders the judiciary, as well as our fellow signatories to the 1970 UNESCO Convention, in protecting international cultural antiquities.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124055241","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":"Embedding Content or Interring Copyright: Does the Internet Need the “Server Rule”?","authors":"J. Ginsburg, L. Budiardjo","doi":"10.7916/JLA.V42I4.1984","DOIUrl":"https://doi.org/10.7916/JLA.V42I4.1984","url":null,"abstract":"The “server rule” holds that online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work. As a result, the rule shields a vast array of online activities from claims of direct copyright infringement, effectively exempting those activities from the reach of the Copyright Act. While the server rule has enjoyed relatively consistent adherence since its adoption in 2007, some courts have recently suggested a departure from that precedent, noting the doctrinal and statutory inconsistencies underlying it. \u0000Authors and copyright owners have long lamented that the server rule’s immunization of certain online activities eviscerates their ability to control how their works are disseminated on the Internet. But many Internet users and commercial actors have incorporated the rule’s liability shield into their expectations about how the Internet does (and should) function. Accordingly, while authors and copyright owners foresee improved prospects for remuneration, many commentators and advocacy groups have expressed concerns regarding the recent judicial doubt about the validity of the server rule. They contend that, without the server rule, the Internet would cease to function as it does today. \u0000However, these concerns overlook the applicable defenses—in particular, the defenses of safe harbor under § 512 of the Digital Millennium Copyright Act and express license—which, we expect, would take on a more significant role in a post- server rule world. In this Article, we explore the likely effect of the potential reversal of the server rule, taking into account these defenses. We conclude that the principal difference between copyright law with and without the server rule comes down to the author’s ability to obtain the removal of links to infringing content, and to authorize embedding of content from a source to which the public had lawful access. Moreover, while the reversal of the server rule may interrupt a handful of online services that rely entirely on the unauthorized appropriation of copyrighted works, most online practices would likely continue unaltered in the post-server rule world.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"94 48","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120936418","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":"Protecting the Rights of Publicity of Michael Jordan, Pele, and Muhammad Ali","authors":"F. Sperling","doi":"10.7916/JLA.V43I3.1998","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.1998","url":null,"abstract":"It is a pleasure to have a chance to speak with you this afternoon. I would like to talk with you about several cases that I brought involving misappropriation of the rights of publicity of Michael Jordan, Pele, and Muhammad Ali.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131967241","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":"Why Movie Studios Care About Right of Publicity","authors":"Ben Sheffner","doi":"10.7916/JLA.V43I3.1994","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.1994","url":null,"abstract":"So why do movie studios care about the right of publicity? The answer is quite simple. Our studios make lots of movies and television programs about and inspired by real people and events. It is critical to our studios that they have the right to do that—whether or not the subjects of those movies and television shows want movies or television shows made about them. \u0000To illustrate how important this issue is to our studios in present day, let me say a couple things. The word “copyright” is included in my job title. I am mostly a copyright lawyer, and I think that is why I was hired at the Motion Picture Association. But over the last two to three years, I have spent the majority of my time on right of publicity, more so than on issues involving copyright. My counterparts—the intellectual property lawyers in-house at the movie studios— consider court decisions threatening their right to make movies and television shows about and inspired by real people and events, without obtaining the subjects’ permission, “existential threats.” One of the things that Professor Jennifer Rothman mentioned in her remarks is that we need to do a better job articulating what the nature of this threat is, or what it means as a practical matter. Let me take up the baton and try to give you a sense of just how fundamentally important this issue is in current years.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132248793","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":"Digital Replicas, Performers’ Livelihoods, and Sex Scenes: Likeness Rights for the 21st Century","authors":"Sarah Alex Howes","doi":"10.7916/JLA.V43I3.1995","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.1995","url":null,"abstract":"I would like to thank June Besek and Columbia Law School for the opportunity to participate on this panel to discuss the appropriate breadth, waivability, and term of the right of publicity. New technologies and the fact that the New York bill will not go retroactive to protect already deceased performers has made this a more pressing issue that needs legal solutions, not just one. \u0000What should the right of publicity protect? The right of publicity is a property right that should protect rights to company branding, advertisements, merchandise, products, and professional performance. The right of privacy should protect against very real emotional harm caused by abusing a likeness; non-consensual sex scenes are certainly on my mind right now. \u0000The Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) is a labor union, which means our primary mission is to ensure economic justice and fair and safe working conditions for our members. This union has pioneered protections for groups of artists and journalists once thought impossible. We fight for good union contracts, marketplace rights, child protections, general safety, and laws and regulations to prevent or stop unethical industry practices. It should come as no surprise that the union is experiencing attacks on union contracts, organizing, basic consent on the internet, and intellectual properties generally. Unfortunately, as a result, this union has to sometimes question the bounds of the First Amendment in this digital era. SAG-AFTRA represents a broad swath of creators. We represent film actors, program hosts, recording artists, singers, voiceover artists, online influencers, and other media professionals. This union also belongs to an image rights coalition made up of other unions and organizations representing entertainers. \u0000 \u0000 \u0000 \u0000I have the honor of representing 160,000 entertainers and journalists who also happen to be public figures. These are public figures who want to protect their families and possess a degree of control over how their likeness is used in the marketplace. No SAG-AFTRA member is the same; we represent 160,000 unique individuals with different business objectives, views, and priorities when it comes to likeness rights. That being said, not one single performer we have spoken to wants their likeness to enter the public domain upon death. The right of publicity and rights to digital replicas have long been a priority for the union. SAG-AFTRA members desire autonomy over their legacy and career. If there is a value to a likeness after death, their family, close friends, or a designated charity should receive the fruits of their labors. It is also worth noting that some of our members want to be excluded from commercial exploitation altogether. For example, news broadcasters are concerned their reputations as journalists would be significantly harmed if ever associated with a company or put on a T-shirt or on a doll. \u0000SAG-AFTRA members work hard t","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130482532","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":"Publicity Rights and the Estate Tax","authors":"Mitchell M. Gans","doi":"10.7916/JLA.V43I3.2001","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.2001","url":null,"abstract":"The estate tax treatment of publicity rights factors into the debate regarding whether such rights should be transferrable at death. Some point to the estate tax as a reason for making publicity rights non-transferrable. For if they are transferrable, estate-tax inclusion could result. And, the argument goes, the estate or the beneficiaries could well be coerced into commercializing the rights in order to raise the money to pay the tax. Making them nontransferable would eliminate this possibility. This Article considers some of the connections between the federal estate tax and the state law treatment of publicity rights. It concludes with a suggestion about the tax treatment of publicity rights at a more general level. \u0000 \u0000 \u0000 \u0000Part I explores the estate tax treatment of publicity rights and, in particular, the provision the celebrity Robin Williams used in his will in order to address his apparent concern about forced commercialization. While the provision appears to be based on dicta in the Ninth Circuit, its effectiveness is questionable. This Part concludes with a recommendation that legislation at the state level permit celebrities to extinguish during life their post-death publicity rights. With such legislation in place, the concern about forced commercialization would be eliminated—thus permitting the state law question of transferability to be resolved solely on the basis of non-tax considerations. \u0000Part II considers the characterization of post-death publicity rights as an independent right under state legislation and the estate tax implications of such a characterization. An analogy is made to the estate-tax treatment of wrongful death proceeds, which are typically characterized as independent of the victim’s pre-death claim and are therefore not included in the gross estate. \u0000Part III examines two ancillary estate-tax issues that can arise where state law authorizes transferability: first, the impact of retroactive state legislation making publicity rights transferrable in the case of a decedent dying prior to enactment; and, second, the impact of a movement away from traditional choice-of-law rules in this context. \u0000Part IV concludes with a broader suggestion: that the estate tax be made entirely inapplicable to publicity rights without regard to the state law question of transferability. Instead, the proceeds from the exploitation of these rights would be fully taxable as income to the beneficiaries when received, obviating the need to engage in a difficult, potentially protracted inquiry into the valuation of the rights at the time of death.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"143 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121138649","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":"Term, Breadth, and Waivability","authors":"Mark Roesler","doi":"10.7916/JLA.V43I3.1990","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.1990","url":null,"abstract":"The question I have is why should there be a difference between how somebody like the Walt Disney Company protects the intellectual property rights and how the Michael Jackson estate protects the intellectual property rights? Why should there be any difference between how they can protect those intellectual property rights?","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127600681","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":"Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment","authors":"Jessica M. Silbey","doi":"10.7916/JLA.V43I3.1996","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.1996","url":null,"abstract":"Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks to the more general challenge of balancing privacy and freedom of expression in the digital age. \u0000 \u0000At the outset of this essay, I describe the scope of the empirical project and the process of collecting data. Then, in three parts, I describe how photographers simultaneously collaborate with and control the subjects of the photographs they make in order to assert themselves as civic storytellers with broad free speech rights in our digital age. I identify a conflict between photographers and their subjects, which serves to maximize the aesthetic freedom of photographers at the expense of their subjects. This conflict resolves in the photographers’ accounts through their caretaking role over their photographs on behalf of the subjects themselves. I conclude with a brief explanation of why it matters to better understand these professional photographic norms in our Internet age when free speech and privacy are increasingly in conflict.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117061865","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}