Columbia Journal of Law and the Arts最新文献

{"title":"Territoriality, Jurisdiction, and the Right(s) of Publicity","authors":"David G. Post","doi":"10.7916/JLA.V43I3.1997","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.1997","url":null,"abstract":"When Professors Rothman and Ginsburg asked me to speak here on the issues surrounding territoriality, jurisdiction, choice of law, and the like in the law of publicity, I confessed that I knew little about the developing law of publicity rights. Having taught Copyright Law for many years, I had come across the well-known foundational publicity rights cases—the cases involving Tom Waits, Vanna White, and Bette Midler—because of the problematic relationship between those decisions (under California state law) and federal copyright law. But I had not studied the publicity doctrine, or the main corpus of cases and statutes, with any great care. \u0000I had, however, done some thinking over the years about territoriality and jurisdiction in other contexts. I was happy to have the opportunity to dive in and spend a couple of months immersing myself in the publicity cases and commentary to try to discover how those questions played themselves out in this particular corner of the legal universe. I found the results “alarming.” I use the term advisedly, so let me try to explain what I mean by it.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"22 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":"126661676","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":"Scope and Justification of the Right of Publicity","authors":"Jeremy N. Sheff","doi":"10.7916/JLA.V43I3.1991","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.1991","url":null,"abstract":"Thank you to Professor June Besek, and thanks to everyone here at Columbia for the invitation. June, to correct one of your introductions here—Mark McKenna is too humble to say so, but in addition to being a widely recognized scholar, he was elected yesterday to the American Law Institute, which is well deserved given his immense contributions to Intellectual Property Law scholarship. \u0000Mark and I have talked about this topic, in part in preparation for today, and so a lot of what I say is going to reflect some of what he has said, and I think that is fine. (There are worse things you can say about a scholar than, “oh, he sounds just like McKenna.”) One of the things that has come up in the discussions this morning and on this panel—which considers the scope of the Intellectual Property right of the Right of Publicity, and whether it is an Intellectual Property right or not—is the relationship between scope and justification. Mark’s comments suggest that there is no such relationship with respect to the Right of Publicity; or, that at least it is loose. The biggest contribution of Jennifer’s excellent book is to encourage us to think about the rights of publicity and the rights of privacy as different things that have— for odd historical reasons, some of them with a purpose—been lumped together. And that we ought to try to think about them more separately and their justifications more separately.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131247394","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 Right of Publicity's Intellectual Property Turn","authors":"J. Rothman","doi":"10.7916/JLA.V43I3.1987","DOIUrl":"https://doi.org/10.7916/JLA.V43I3.1987","url":null,"abstract":"The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age. \u0000 \u0000The lecture (as adapted for this Article) explores in greater depth one major theme drawn from the book ― the right of publicity’s turn in the late 1970s from being a personal right rooted in an individual to being an intellectual property right separable from the underlying identity-holder. This transformation of people into a form of intellectual property has led to significant expansions in the reach and scope of right of publicity laws across the country. At the same time, treating the right of publicity as IP has undermined First Amendment and copyright-based limits on these laws, and jeopardized the freedom of the very identity-holders upon whose interests the right is justified. The Article considers not only whether the IP rubric is appropriate for the right of publicity, but also whether the challenges posed by right of publicity laws are a magnified version of more general problems that IP laws face today ― in particular, the continued expansion of these rights unmoored from the initial justifications for the entitlements, and without adequate protections for socially valuable uses.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121424450","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 Need for a Federal Anti-SLAPP Law in Today’s Digital Media Climate","authors":"L. Bergelson","doi":"10.7916/JLA.V42I2.2006","DOIUrl":"https://doi.org/10.7916/JLA.V42I2.2006","url":null,"abstract":"This Note lays out the judicial protections granted to the traditional press and identifies new threats to non-traditional presses through the rise of third-party litigation financing for lawsuits targeting negative reporting. Part I distinguishes between libel and privacy lawsuits, explaining why one approach—particularly in the digital age—can be more fruitful for plaintiffs. Part I also draws from recent Supreme Court precedent to contextualize current attitudes regarding speech and privacy. Part II analyzes two recent new media cases with troubling results: specifically, million-dollar costs at best, and bankruptcy at worst. While ample protections exist for the traditional press, in light of these lawsuits, it is worth considering what more could and should be done to protect media outlets, especially the non-traditional presses. Part II also examines the chilling effect of potential billionaire-backed lawsuits. Because of threats from third-party litigation financiers and because judicial protections are intended for traditional presses, new publishers are left in a precarious position; Part III advocates for a federal anti-SLAPP law as a potential solution.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128724641","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":"Facilitating Transactions and Lawful Availability of Works of Authorship","authors":"Rán Tryggvadóttir","doi":"10.7916/JLA.V41I3.2027","DOIUrl":"https://doi.org/10.7916/JLA.V41I3.2027","url":null,"abstract":"The importance of providing access to the cultural heritage1 is widely accepted.  Digital technology has supplied powerful new tools to reproduce and disseminate works and at the same time has transformed the demands and expectations of end-users.2  Nevertheless, there are several issues that cultural heritage institutions (“CHIs”) must resolve in order to maintain their role of preserving and disseminating cultural heritage in the digital age.  Although some of those issues are budgetary rather than legal,3copyright is obviously a key consideration in the digital use of in-copyright works by CHIs.  The largest copyright challenge for CHIs is the process of identification of right holders of copyright and clearance of rights, i.e. obtaining authorization or licenses for use of in-copyright works. \u0000Stakeholders do not agree how best to facilitate CHIs in their important cultural role.  Some advocate the establishment of legal exceptions whereas others favor licenses.  My starting assumption is that, given the impact of online use, licensing is a more appropriate and flexible tool than exceptions.  However, obtaining individual licenses for the use of in-copyright works held by CHIs is complicated, time-consuming, and costly, in particular for cross-border online use.4  Thus individual licensing is not a practical solution for CHIs except for the use of a few well-defined works.  Even collective licensing does not fully solve the licensing issue because no collective management organization (“CMO”) has mandates from all right holders in a given field.5  Hence, I propose that the solution is to be found through collective licenses with legislative support, such as the system of extended collective licenses (“ECL”).6 \u0000In this essay I will start by giving a brief account of the main strands which constitute an extended collective license in the Nordic countries, where it was first developed.7  I will describe two examples where ECLs have been used to facilitate access to the cultural heritage, in Norway and Finland respectively.  I will also discuss the compatibility of the system with international norms, in particular the Berne Convention,8 and finish with some reflections on challenges and benefits of the system of ECLs in facilitating access to cultural heritage.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133583755","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":"Foreign Authors’ Enforcement of U.S. Reversion Rights","authors":"J. Ginsburg","doi":"10.7916/JLA.V41I3.2022","DOIUrl":"https://doi.org/10.7916/JLA.V41I3.2022","url":null,"abstract":"Thank you to all of the participants, and especially the first two panelists, for setting one part of the scene.  I am going to talk about the United States’ termination right and some Berne and private international law consequences or implications of the termination right. \u0000First, however, I’d like to advert to the two goals Rebecca Giblin referenced in her talk.  One is remuneration, the other is dissemination.  Author-protective laws in other countries also address dissemination.  As Severine Dusollier mentioned, a number of national laws include an obligation to exploit the work:  if the publisher does not exploit the work, the rights revert to the author.  In the United States, the contractual out-of-print clause serves that purpose, but the out-of-print clause is a matter of private ordering.  It has to be activated by the author and publishers lately have contended that as a result of print-on-demand, the work never goes out of print.  If the book is available in the catalog, and somebody at some point wants a copy, then the publisher can provide that copy.  Out of print clauses in the digital environment therefore, some publishers would argue, make no sense.  Mary Rasenberger accordingly mentioned some of the attempts of the Author’s Guild to push back against the disappearance of the out-of-print clause. \u0000The rest of my remarks will concern remuneration, rather than dissemination.  As both Martin Senftleben and Severine Dusollier pointed out, there exists a disparity in bargaining power:  authors generally are the weaker party.  Two broad techniques seek to remedy this problem.  Previous speakers have addressed one of them, intervention by national laws with respect to the amount that the author gets paid, and with respect to the scope of the grant.  Thus, in some countries, as Severine Dusollier mentioned, the law prohibits the author’s grant of modes of exploitation unknown at the time of the contract.  These laws effectively reserve new technology rights to the author.  Other national laws require additional remuneration for new modes of exploitation, or for “bestsellers” whose authors’ remuneration becomes excessively disproportionate to the grantees’.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"119 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117295138","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":"Facilitating Transactions and Lawful Availability of Works of Authorship: The U.S. Perspective","authors":"Robert J. Kasunic","doi":"10.7916/jla.v41i3.2024","DOIUrl":"https://doi.org/10.7916/jla.v41i3.2024","url":null,"abstract":"As Associate Register of Copyrights and Director of Registration Policy and Practice at the United States Copyright Office, a significant part of my role is to be an advocate for formalities within the limits of the Berne Convention.  I realize that many view registration, recordation, and other formalities as obstacles to authors.  However, such formalities need not be impediments, but rather may offer valuable benefits to authors, owners, and the overall copyright ecosystem without unduly burdening creators.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115338896","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":"More Money for Creators and More Support for Copyright in Society—Fair Remuneration Rights in Germany and the Netherlands","authors":"Martin Senftleben","doi":"10.7916/JLA.V41I3.2020","DOIUrl":"https://doi.org/10.7916/JLA.V41I3.2020","url":null,"abstract":"The current copyright system is intended to provide an incentive for authors to invest more time and effort in the creation of literary and artistic works (utilitarian argument), recognize the acquisition of a property right as a result of creative labour (natural law argument) and enhance authors’ freedom of expression by offering a source of income that is independent of patronage and sponsorship (free expression argument).1 These arguments may be combined with considerations of industry policy, such as the growth of the creative and telecommunication industries, and the creation of jobs in these industries.2 The basis of all these lines of reasoning, however, is the individual creator. Without the constant efforts of creators, there would be no new literature and art to fuel the publication and dissemination machinery of the industry. A focus on the income situation of the individual creator also ensures the acceptance of copyright law in society. It adds social legitimacy. Who would be against remunerating authors for the time and effort spent on the creation of a new work? \u0000There is thus substantial reason to explore legislative measures seeking to ensure that copyright law generates not only a sufficient return on investment for the creative industries but also a decent income for individual creators. With specific copyright contract rules that guarantee a right to fair remuneration, the legislation in Germany and the Netherlands is particularly advanced in this respect. Hence, the question arises: what lessons can be learned from German and Dutch experiences? After a short introduction that refers to recent E.U. initiatives in this area, the following analysis will show that the issue of a fair remuneration for creators has a worldwide dimension. In light of the rationales of copyright protection in continental-European and Anglo-American copyright systems, it becomes clear that the high level of protection that has been reached in both legal traditions and at the international level only appears legitimate if individual creators receive an adequate remuneration for their work.3 Fair remuneration is a universal, worldwide concern (Section I). Against this background, the analysis sheds light on the practical effects of the legislation in Germany and the Netherlands (Section II) and leads to general guidelines for the improvement of the income situation of creators (Section III).","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132787235","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":"A New Copyright Bargain?: Reclaiming Lost Culture and Getting Authors Paid","authors":"Rebecca Giblin","doi":"10.7916/JLA.V41I3.2019","DOIUrl":"https://doi.org/10.7916/JLA.V41I3.2019","url":null,"abstract":"Copyright’s fundamental structure is based on outdated assumptions, including that marginal costs of copying and distribution are high, and registration systems necessarily onerous and expensive.1  International treaties embedded these assumptions into domestic laws worldwide, and for good reasons:  when the Berne Convention prohibited formalities in 1908, it was a necessary response to compulsory registration systems that unfairly burdened authors.2  And, when those high marginal costs meant only the most popular works could be made enduringly available anyway, there was little downside in granting long terms that could outlast their owners’ interest:  those less popular works were going to be lost regardless.3 \u0000These assumptions no longer hold good (at least for those with digital access).  Registrations can occur cheaply and almost instantaneously online.  The information age brought with it the widespread ability to copy and distribute many kinds of work—globally, virtually instantaneously, for close to zero marginal cost—making the deadweight loss caused by too-long copyrights precipitously larger.4 \u0000 \u0000Copyright law would no doubt look very different if we were to design it from scratch today, unconstrained by existing ways of doing things, vested interests, and the international treaty framework.5  Kimberlee Weatherall and I recently led a project to explore what such a reimagined copyright could look like.  The core lessons that emerged?  That any copyright system we were to create today would be much better targeted towards protecting authors’ interests; would not leave availability and access so much to chance; and would impose reasonable reciprocal obligations along with rights.6 \u0000That thought experiment was a useful exercise for understanding what current approaches cause us to lose, but as we explained in our conclusions, any wholesale reimagining would be impossible to implement in practice.7  Leaving aside the powerful lobbying power of the biggest beneficiaries of existing approaches, crucial reform pathways are permanently blocked by the Berne Convention for the Protection of Literary and Artistic Works, supported (and made enforceable in the World Trade Organisation) by the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”).  While Berne was intended to be revised regularly to keep up with changing circumstances, it has now been almost half a century since Berne has seen any substantive change.8  Regulators and scholars have sometimes assumed Berne can be modified, albeit with difficulty,9 but that’s simply not feasible given 170+ veto-wielding member nations with their wide range of often competing interests.  As Sam Ricketson writes in this volume, “you’re dreaming!” if you imagine likely any revisions to Berne.10  Walking away isn’t an option either, since that would mean loss of reciprocal global protection and ejection from the WTO.11 (providing that the instruments in Annex 1, of which TRIPS is one","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127061667","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":"Dr. Strange Geo-Blocking Love Or: How The E.U. Learned To Stop Worrying About Cultural Integration And Love The TV Trade Barrier","authors":"Batia M. Zareh","doi":"10.7916/JLA.V41I2.2032","DOIUrl":"https://doi.org/10.7916/JLA.V41I2.2032","url":null,"abstract":"The E.U. Antitrust Case that opened on July 23, 2015 against Sky U.K. and six American studios—Disney, Fox, NBCUniversal, Paramount Pictures, Sony and Warner Brothers—has its structural roots in the Television Without Frontiers Directive, which was vigorously debated as a last-minute standoff that threatened to derail the conclusion of the GATT Uruguay Round of trade negotiations and is still considered to be the cornerstone of the European Union’s audiovisual policy. This Article examines the unique history of a Cultural Exception with respect to audiovisual works as applied in trade negotiations to Hollywood film and television productions, and argues that, rather than violating E.U. regulations, the decades-old practice of regional contractual restrictions and geo-blocking is both consistent with and a direct result of the E.U.’s protectionist and paternalistic efforts to shield its individual member states’ local production entities from competition and its populations from a perceived and decidedly unwelcomed Svengali-like juggernaut of American cultural influence. The E.U. antitrust action is therefore in direct contravention to the spirit of the trade laws over which Hollywood studios were so stridently subjected to debating and is inconsistent with stated E.U. audiovisual norms. Abolishing regional access limitations will put the future of the E.U.’s various local distributors at risk, for the existing patchwork of distribution related rules impacting foreign property directly impacts American producers’ decisions regarding whether and how to continue to do business in the region. Thus, any attempt to implement the E.C.’s aspirational Digital Single Market 2020 target terms must be reconciled in light of the current political climate in Europe and global technological capabilities if the E.U. is to remain a relevant market at the forefront of the modern entertainment industry and continue to benefit from the uniquely privileged relationship it has enjoyed for nearly a century with its many Hollywood studio production partners.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133258277","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}