Art and Design Commons^™

Permissive Certificates: Collectors Of Art As Collectors Of Permissions, Peter J. Karol

Law Faculty Scholarship

Artists have been dramatically reshaping the fine art certificate of authenticity since the 1960s. Where traditional certificates merely certified extant objects as authentic works of a named artist, newer instruments purported both to authorize the creation of unbuilt artworks and instruct buyers how to manifest and install them. Such “Permissive Certificates” have fascinated contemporary art historians ever since. Prior scholarship has shown how such documents, essentially blueprints for art creation, force us to confront fundamental ontological questions on the nature of art, the relationship between artist, collector and viewer, and the influence of money and acquisitiveness on art generation. But …

If It’S Broke, Fix It: Fixing Fixation, Megan M. Carpenter

Law Faculty Scholarship

The fixation requirement, once an intended instrument for added flexibility in copyrightability, has become an unworkable standard under modern copyright law. The last twenty-five years have witnessed a dramatic expansion in creative media. Developments in both digital media and contemporary art have challenged what it means to be fixed, and cases dealing with these works reveal how inapposite current interpretations of fixation are for these forms of expression. Yet, getting fixation “right” is important, for it is often the juridical threshold over which idea becomes expression. Thus, we must enable fixation to help define the parameters of creative expression while …

Ip Basics: Copyright In Visual Arts, Thomas G. Field Jr.

Law Faculty Scholarship

This discussion focuses on the needs of free-lance artists, craftspeople, photographers, sculptors and the like.

Ip Basics: Copyright For Digital Authors, Thomas G. Field Jr.

Law Faculty Scholarship

Written for computer artists and programmers, this paper addresses the basics, as well as the registration of multiple works, difference between works that are and are not prepared "for hire," and other matters of interest to entrepreneurs as well as to free-lance programmers and artists.

Function Over Form: Bringing The Fixation Requirement Into The Modern Era, Megan M. Carpenter, Steven Hetcher

Law Faculty Scholarship

This Article examines the ways that contemporary creativity challenges copyright’s fixation requirement. In this Article, we identify concrete problems with the fixation requirement, both practically and in light of the fundamental purpose and policy behind copyright law, and argue for a change that would amend the fixation requirement to better function in the modern era.

Specifically, we conclude that a fair appraisal of the justifications for the fixation requirement provides little, if any, rationale for fixation except to the extent that fixation helps to separate idea from expression in determining the “metes and bounds” of creative expression. Recent case law …

Counterfeits, Copying And Class, Ann Bartow

Law Faculty Scholarship

Consumers who want to express themselves by wearing contemporary clothing styles should not have to choose between expensive brands and counterfeit products. There should be a clear distinction in trademark law between illegal, counterfeit goods and perfectly legal (at least with respect to trademark law) "knockoffs," in which aesthetically functional design attributes have been copied but trademarks have not. Toward that end, as a normative matter, the aesthetic features of products should not be registrable or protectable as trademarks or trade dress, regardless of whether they have secondary meaning, just as functional attributes of a utilitarian nature are not eligible …

Drawing A Line In The Sand: Copyright Law And New Museums, Megan M. Carpenter

Law Faculty Scholarship

Over the last twenty years, audience attendance at museums, galleries, and performing arts institutions in the United States has decreased dramatically. Major museums and galleries are considering ways to add engaging and meaningful value to the user experience with technology, from incorporating user-generated content to creating multimedia installations billed as “collaborative” works.

In 2010, the Dallas Museum of Art’s Coastlines: Images of Land and Sea exhibition featured landscapes from 1850 to the present, as well as a sound installation composed by students and faculty in the Arts and Technology program at the University of Texas at Dallas, which played on …

The True Colors Of Trademark Law: Green-Lighting A Red Tide Of Anti Competition Blues, Ann Bartow

Law Faculty Scholarship

The elevation of color to stand-alone trademark status illustrates the unbounded nature of trademarks within the judicial consciousness. The availability of color-alone marks also facilitates the commoditization of color in ways that complicate the development and distribution of products and services that use color for multiple purposes conterminously. The economic case for color-alone trademarks is severely undermined by careful observation of the ways that colors are actually deployed in commerce, which makes it clear that the trademarks of multiple goods and services can utilize the same color to telegraph the same message without confusing anyone or diluting the commercial power …

Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca

Law Faculty Scholarship

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down, in application and purpose, when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety for a variety of reasons. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime example of cases where defendants are likely to …