Articles

The Right of Publicity’s Intellectual Property Turn

Published Apr 11, 2019

Abstract I will first consider the case often wrongly credited with creating the right of publicity―Haelan Laboratories v. Topps Chewing Gum―and then reveal the right of publicity’s true origins, explaining when the actual turn to becoming an independent IP right took place. I will conclude with some challenges posed by this IP turn, as well… Read more

Stirring the Pot: A Response to Rothman’s Right of Publicity

Published Apr 11, 2019

Abstract Any commentary on Jennifer Rothman’s terrific book has to begin with a compliment to her extraordinary commitment to the right of publicity. For the uninitiated, her website, Rothman’s Roadmap to the Right of Publicity, provides a treasure trove of information about the right of publicity in each of the fifty states. Professor Rothman has… Read more

Term, Breadth, and Waivability

Published Apr 11, 2019

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?

Scope and Justification of the Right of Publicity

Published Apr 11, 2019

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… Read more

Why Movie Studios Care About Right of Publicity

Published Apr 11, 2019

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… Read more

Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment

Published Apr 11, 2019

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… Read more

Territoriality, Jurisdiction, and the Right(s) of Publicity

Published Apr 11, 2019

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… Read more

What Trademark Law Is Learning from the Right of Publicity

Published Apr 11, 2019

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… Read more

Publicity Rights and the Estate Tax

Published Apr 11, 2019

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… Read more

Navigating the Ambiguities and Uncertainties of the Holocaust Expropriated Art Recovery Act of 2016

Published Feb 13, 2019

Abstract With an admirable purpose, a celebrity endorsement from Dame Helen Mirren, and unanimous support in Congress, the Holocaust Expropriated Art Recovery Act (HEAR Act), passed in late 2016, appears to be a rare legislative success. Its congressional momentum, however, belies the pitfalls that inhere in its text. The Act’s nuanced and often ambiguous language… Read more

The ‘Art’ of Copyright: A Practitioner’s Perspective

Published Feb 13, 2019

Abstract This is the 31st Manges lecture, and I am honored to be the first private practitioner to deliver it. Copyright law is rich in its constitutional and legislative heritage, in its doctrinal underpinnings, and in its interplay with other important legal and social regimes and norms. This complex heritage has been honored—and its contours… Read more

The Promises of Algorithmic Copyright Enforcement: Takedown or Staydown? Which Is Superior? And Why?

Published Dec 10, 2018

Abstract Under the prevailing model of copyright liability for user-generated content, right holders and intermediaries are both involved in the enforcement of exclusive rights on the Internet. While right holders are expected to identify and notify the infringing content that they wish to remove, the intermediaries have to react by assessing the received notices and… Read more

Of Trolls, Orphans, and Abandoned Marks: What’s Wrong With Not Using Intellectual Property?

Published Dec 10, 2018

Abstract The question whether intellectual property (“IP”) rights should require use is a pressing one today. Neither patent nor copyright law formally requires that the IP owner actually use the patented invention or copyrighted work. Yet use would seem necessary for a work to reap the social benefits that justify granting exclusive rights. Trademark law… Read more

Moral Rights: The Anti-Rebellion Graffiti Heritage of 5Pointz

Published Oct 3, 2018

Abstract This essay proceeds in four sections.  The journey begins with the site’s story.  The first three sections explore in detail the history and development of 5Pointz and the contours of the moral rights litigation, which demolition of the buildings provoked.  That is followed by a detailed review of the unsuccessful effort of the artists… Read more

Capitol Records v. Vimeo: The Peculiar Case of Pre-1972 Sound Recordings and Federal Copyright Law

Published Oct 3, 2018

Abstract In Capitol Records, L.L.C. v. Vimeo, L.L.C., the U.S. Court of Appeals for the Second Circuit held that the “safe harbor” provisions of Section 512 of the federal Copyright Act covered state law claims against an online service provider for infringement of pre-1972 sound recordings.1  The evidentiary basis for this conclusion was slender.  At… Read more

Author-Centered Copyright Enforcement?

Published Oct 3, 2018

Abstract This Symposium explores our flexibility within international copyright law to better serve the purposes of copyright and, specifically, to benefit the individual human creators (authors) of our cultural and intellectual heritage.1  Where other contributions consider the potential for a different allocation of rights, here I explore the potential for author-centered copyright enforcement:  could we… Read more

Remedies, Enforcement and Territoriality

Published Oct 3, 2018

Abstract Thank you to everyone at the Kernochan Center for inviting me to participate and for organizing this symposium.  Like Sam Ricketson, I knew and was very fortunate to work with Jack Kernochan, and I am a better copyright lawyer because of him.  As with all practicing attorneys, I begin with this caveat:  the views… Read more

Remedies, Enforcement and Territoriality

Published Oct 3, 2018

Abstract I would like to start by thanking the Kernochan Center and all its members, in particular Jane Ginsburg, and also Rebecca Giblin, together with all the colleagues who have been involved in the conception of this Symposium.  I am happy to be back after a few years:  I was a Visiting Scholar at Columbia… Read more

Facilitating Transactions and Lawful Availability of Works of Authorship: Online Access to the Cultural Heritage and Extended Collective Licenses

Published Oct 3, 2018

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… Read more

Expanding the Spectrum: Open Access and the Internet Age

Published Oct 3, 2018

Abstract I speak to you as a practitioner, someone who has represented clients on both ends of the spectrum of copyright. This spectrum has at one end a closed, more traditional, proprietary model of copyright, and, at the other end of the spectrum an open, more collaborative based model of copyright.  And in between those… Read more

Facilitating Transactions and Lawful Availability of Works of Authorship: The U.S. Perspective

Published Oct 3, 2018

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… Read more

Copyright Reversion in The Creative Industries: Economics and Fair Remuneration

Published Oct 3, 2018

Abstract The European Commission proposal to harmonize fair remuneration in Member States in EC “on copyright in the Digital Single Market”1 included the proposal to harmonize a right to contract reversion.  Fair remuneration is an ambiguous concept for economists:  some EC documents imply the policy is required for efficiency purposes, and in others, purely for… Read more

Foreign Authors’ Enforcement of U.S. Reversion Rights

Published Oct 3, 2018

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. First, however, I’d like to advert to the two… Read more

More Money for Creators and More Support for Copyright in Society—Fair Remuneration Rights in Germany and the Netherlands

Published Oct 3, 2018

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… Read more