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It Ain't Real Funky Unless It's Got That Pop: Artistic Fair Use After Goldsmith, Benjamin A. Spencer
It Ain't Real Funky Unless It's Got That Pop: Artistic Fair Use After Goldsmith, Benjamin A. Spencer
Duke Journal of Constitutional Law & Public Policy Sidebar
The Pop Art style pioneered by artists such as Paolozzi, Lichtenstein, and Rauschenberg challenged notions of what art could be by recasting common objects and images into new contexts, transforming them into pieces that served as both cultural commentary and novel expression. Though examination of an artwork's meaning or message may seem more natural for a critic or curator, the Supreme Court will have a chance to weigh in with Andy Warhol Foundation for the Visual Arts v. Goldsmith. Here, the court will decide whether a Warhol painting based on a photograph of Prince is protected by fair use. …
A Theory Of Copyright Authorship, Christopher Buccafusco
A Theory Of Copyright Authorship, Christopher Buccafusco
Faculty Scholarship
The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner …
Golan V. Holder: Copyright In The Image Of The First Amendment, David L. Lange, Risa J. Weaver, Shiveh Roxana Reed
Golan V. Holder: Copyright In The Image Of The First Amendment, David L. Lange, Risa J. Weaver, Shiveh Roxana Reed
Faculty Scholarship
Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign …
Remembering Melville Nimmer: Some Cautionary Notes On Commercial Speech, William W. Van Alstyne
Remembering Melville Nimmer: Some Cautionary Notes On Commercial Speech, William W. Van Alstyne
Faculty Scholarship
This examination concerns itself with two main questions: what qualifies as commercial speech and how much protection does commercial speech enjoy under the First Amendment when compared to other forms of speech. The trend of the Court indicates that commercial speech enjoys protections similar to political speech.