Potentiating Loopholes: How Erratic and Piecemeal Implementation of the 1970 UNESCO Convention Has Failed to Protect Cultural Antiquities

Published May 3, 2019

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… Read more

The Need for a Federal Anti-SLAPP Law in Today’s Digital Media Climate

Published Feb 13, 2019

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… Read more

Selling the Artist, Not the Art: Using Personal Brand Concepts To Reform Copyright Law for the Social Media Age

Published Feb 13, 2019

Abstract This Note will argue that American courts should take account of digital works’ secondary purpose as personal brand advertisement and treat these works as such, thereby protecting creators’ economic interests in a world where social capital is economic capital. In Part I, I explain how Internet creators, ordinary users, companies, and social media influencers… Read more

Burdens of the Dead: Postmortem Right of Publicity Statutes and the Dormant Commerce Clause

Published Dec 10, 2018

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… Read more

There and Back: Vindicating the Listener’s Interests in Targeted Advertising in the Internet Information Economy

Published Dec 10, 2018

Abstract This Note argues first, that the Commercial Speech Doctrine as currently conceived is an ill-fitting tool for resolving difficult free speech questions in the context of data, privacy, and the modern Internet Information Economy. The application of the Commercial Speech Doctrine to a particular economic interaction should not be a nigh-complete bar to the… Read more

Shooting Fish in A Bliss Bucket: Targeting Money Launderers in the Art Market

Published Oct 2, 2018

Abstract This Note argues that the art industry cannot sufficiently deter money laundering through self-regulatory measures and that an effective approach to combatting these crimes must begin with government oversight.  Part I provides an overview of the qualities that make art an attractive market for money launderers and examines several common money laundering practices within… Read more

“Anything Goes”: Regulating the Conduct of Money-Bundling Broadway Co-Producers

Published Oct 2, 2018

Abstract This Note will analyze industry concerns relating to the practice of granting above-the-title producer credit to individuals solely for contributing or bundling a share of a production’s capitalization, specifically by asking whether money-bundling Broadway co-producers are acting as unregistered broker-dealers in violation of applicable Security Exchange Commission (“SEC”) registration requirements.  In Section I of… Read more

“You Be The Judge”: An Analysis of the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts

Published Feb 17, 2017

Abstract This Note will aim to assess the workability of this Code of Best Practices, with a specific focus on the Principle and Limitations—which I call “Considerations”— set forward for Making Art. I will first look at the existing doctrine as it has developed over the last forty years, with specific attention to recent similarities… Read more

Who Owns Our Ancestors’ Voices?

Published Feb 17, 2017

Abstract In Part I, this Note will explore federal cultural property statutes as well as the doctrines of common law copyright and aboriginal title, each of which might be employed to determine ownership interests in pre-1972 sound recordings made on Indian reservations. In Part II, this Note will present a case study, involving a nonindigenous… Read more

Can the New York Legislature Bring Back Authentication Boards? The Effect of Proposed Legislation on Liability for Art Authenticators

Published Dec 14, 2016

Abstract This Note will first lay out how authenticators—particularly authentication boards and artist foundations who author catalogues raisonnés—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… Read more

Robots, Pirates, and the Rise of the Automated Takedown Regime: Using the DMCA to Fight Piracy and Protect End-Users

Published Jun 26, 2016

Abstract This very second, a battle between robots and pirates is being waged online. Pirates are stealing content from copyright holders and uploading it to various websites. Robots are crawling the Web, searching for pirated content. When a robot encounters pirated content, it is programmed to attack—either by reporting back to the copyright holder, or… Read more

Taming The “Frankenstein Monster”: Copyright Claim Compatibility With The Class Action Mechanism

Published Oct 16, 2015

Abstract In a 2013 opinion denying class certification to a putative class of copyright holders in Football Association Premier League Ltd. v. YouTube, Inc., Judge Stanton of the Southern District of New York wrote: Generally speaking, copyright claims are poor candidates for class-action treatment. They have superficial similarities. . .Thus, accumulation of all the copyright… Read more

Sherlock Holmes and Newt Scamander: Incorporating Protected Nonlinear Character Delineation Into Derivative Works

Published Oct 16, 2015

Abstract Author J.K. Rowling published a book in 2001 under the pseudonym Newt Scamander with an “About the Author” section that provided a brief outline of the fictional author. Prior to this brief biographical section, fans of the Harry Potter universe had only been introduced to the character of Scamander in passing as the author… Read more

A Shield Does Not Fall in Hazelwood: Privileging the Legitimate Journalism of High School Student Reporters

Published Feb 16, 2015

After fifteen-year-old Audrie Pott hanged herself, student reporters on her high school’s newspaper began investigating the circumstances leading up to the tragedy. The newspaper staff at Saratoga High School conducted over fifty interviews regarding Audrie’s sexual assault and the photos of her attack that classmates had circulated before her suicide. After weeks of research, three… Read more

Bring Back the Noise: How Cariou v. Prince Will Revitalize Sampling

Published Jan 18, 2015

In 1988, John Carlin argued in an article in this Journal that fair use should be extended to cover works of appropriation art so as to protect appropriative artists from claims of copyright infringement. He wrote that “[a]n extension of fair use to cover artistic use through Appropriation would not compromise either the underlying logic… Read more

The Demise of the Copyright Act in the Digital Realm: Re-Engineering Digital Delivery Models to Circumvent Copyright Liability After Aereo

Published Jul 8, 2014

This Note argues that the Second Circuit’s interpretation of the Transmit Clause eviscerates the meaning of “public” within the digital realm and has created a blueprint for business models to completely circumvent copyright liability.  Part I provides the background of the public performance right, focusing on the role that technology has played in the addition… Read more

Standing by Your Man Ray: Troubles with Antitrust Standing in Art Authentication Cases

Published Jan 26, 2014

In 1989, Joe Simon-Whelan, an intimate of Andy Warhol, purchased one of the artist’s silk-screened self portraits for $195,000. Fred Hughes, the chairman of the Andy Warhol Foundation for the Visual Arts, signed an authentication of the portrait, certifying that it was genuine. In 2001, Simon Whelan’s investment appeared prescient: a buyer was prepared to… Read more