Law Commons^™

Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski

Articles

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies.

Ai, Artists, And Anti-Moral Rights, Derek E. Bambauer, Robert W. Woods

UF Law Faculty Publications

Generative artificial intelligence (AI) tools are increasingly used to imitate the distinctive characteristics of famous artists, such as their voice, likeness, and style. In response, legislators have introduced bills in Congress that would confer moral rights protections, such as control over attribution and integrity, upon artists. This Essay argues such measures are almost certain to fail because of deep-seated, pervasive hostility to moral rights measures in U.S. intellectual property law. It analyses both legislative measures and judicial decisions that roll back moral rights, and explores how copyright’s authorship doctrines manifest a latent hostility to these entitlements. The Essay concludes with …

A Potential Status Update For The Visual Artists Rights Act: The Role Of Social Media Response In Judicial Analysis Of Recognized Stature, Olivia Calamia

St. John's Law Review

(Excerpt)

In 2020, visual artists used the power and reach of social media platforms to share works of art inspired by the Black Lives Matter movement, which experienced renewed vigor following the police murder of George Floyd on May 25, 2020. Many of these works have taken the form of murals painted on city streets, building faces, and other spaces that promote public viewing. Many artists hope that their works will endure long past this moment of social and political reckoning. Manhattan based artist Amir Diop expressed his wishes simply but eloquently: “My hope is that [my art] is a …

Star–Crossed Copyrights: The Story Of How Mexico Defied Civil Law Traditions By Infusing Common Law Ideologies Into Its Audiovisual And Motion Picture Copyright Regulations, Camila Chediak

University of Miami Inter-American Law Review

This Note was inspired by the out–of–the–ordinary, yet practical approach that Mexico chose to implement when it waived certain longstanding copyright moral rights principles in favor of the U.S. common law work–made–for–hire approach for its audiovisual and motion picture regulations. Since the inception of its copyright law, Mexico has strictly adhered to the civil law ideologies that are generally standard to civil law countries, particularly in its loyalty to the original creators of creative works through the moral rights doctrine. The United States, on the other hand, favors utilitarian ideologies that emphasize the societal importance of fostering innovation through the …

Artificial Intelligence And Moral Rights, Martin Miernicki, Irene (Huang Ying) Ng

Centre for AI & Data Governance

Whether copyrights should exist in content generated by an artificial intelligence is a frequently discussed issue in the legal literature. Most of the discussion focuses on economic rights, whereas the relationship of artificial intelligence and moral rights remains relatively obscure. However, as moral rights traditionally aim at protecting the author’s “personal sphere”, the question whether the law should recognize such protection in the content produced by machines is pressing; this is especially true considering that artificial intelligence is continuously further developed and increasingly hard to comprehend for human beings. This paper first provides the background on the protection of moral …

John Hemings' Monticello And Poplar Forest, J. Wesley Giglio

Journal of Intellectual Property Law

A discussion of John Hemings' creative architectural contributions to Monticello and Poplar Forest, Thomas Jefferson's Virginia Estates. Author argues that Hemings, an enslaved person and a master carpenter, made vital and creative contributions to the building of the two estates which merit legal recognition. Author discusses how legal ideas about moral rights and statutory protections in the Architectural Works Copyright Protection Act could be adapted to cure a historica and representative injustice.

Creative Destruction: Copyright's Fair Use Doctrine And The Moral Right Of Integrity, Cathay Y. N. Smith

Pepperdine Law Review

This Paper explores the role of copyright’s fair use doctrine as a limit on the moral right of integrity. The moral right of integrity gives an author the right to prevent any distortion, modification, or mutilation of their work that prejudices their honor or reputation. Actions that have been found to violate an author’s moral right of integrity include, for instance, altering a mural by painting clothing over nude figures, selling separated panels of a single work of art, and displaying sculptures with holiday ribbons. At the same time, copyright’s fair use doctrine allows follow-on creators to transform original works …

Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg

Faculty Scholarship

This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

Reconciling The "Moral Rights" Of Authors With The First Amendment Right Of Free Speech, John T. Cross

John Cross

The article concludes that the First Amendment does not significantly limit the enforcement of those moral rights recognized by state and federal law. Several features of moral rights laws support this conclusion. First, many acts that infringe moral rights do not qualify as speech, and therefore receive no First Amendment protection. For example, the droit de suite, or resale right, is clearly constitutional under this rationale, as it involves no speech whatsoever. Second, even when the offending act is speech, most moral rights laws can be justified, depending on the circumstances, by one or more of several arguments. Indeed, many …

In Lieu Of Moral Rights For Ip-Wronged Music Vocalists: Personhood Theory, Moral Rights, And The Wppt Revisited, Tuneen E. Chisolm

St. John's Law Review

(Excerpt)

The Introduction of this Article has identified some of the noneconomic harms of concern. Part I summarizes and compares copyright ownership, control, and existing protections for authors of music compositions and sound recordings under the Copyright Act. It also summarizes pertinent music industry practices that impact third party use of recorded vocalist performances. Part II provides a foundation for understanding the nature of legal protections for creative works and the philosophical underpinnings of copyright law and moral rights, comparing utilitarianism and natural rights theory to personhood theory. It also provides a brief explanation of moral rights. Part III looks …

Graffiti, Street Art, Walls, And The Public In Canadian Copyright Law, Pascale Chapdelaine

Law Publications

Graffiti is vilified, and at the same time is increasingly revered and celebrated. This ambivalence is reflected in the general legal landscape that surrounds graffiti and other forms of street art at the criminal, civil and municipal levels. Within this general legal framework, the application of copyright law to graffiti and street art reveals a complex web of interwoven issues about the protection of the graffiti artist’s economic and moral rights and questions of illegality and public policy, and about the rights of the property owner of the “wall” on which the art resides, and the public. This book chapter …

Existential Copyright And Professional Photography, Jessica Silbey, Eva Subotnik, Peter Dicola

Faculty Scholarship

Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual …

The Curious Case Of Cady Noland And The Disappearing Cabin, Amanda Hoefer

Journal of Intellectual Property Law

No abstract provided.

The Lost Tort Of Moral Rights Invasion, Patrick R. Goold

Akron Law Review

Moral rights are often portrayed as an unwelcome import into U.S. law. During the nineteenth century, European lawmakers, influenced by personality theories of authorship, began granting authors rights of attribution and integrity. However, while these rights proliferated in Europe and international copyright treaties, they were not adopted in the United States. According to a common historical narrative, U.S. courts and lawmakers resisted moral rights because they were deemed incompatible with the copyright tradition of treating expressive works as alienable property. What little moral rights U.S. law provides today is thus seen as a necessary evil, grudgingly accepted, simply to comply …

A Tale Of Two Composers: An Argument For A Limited Expansion Of Moral Rights For Composers, Cassidy Grunninger

Journal of Intellectual Property Law

No abstract provided.

Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon

Faculty Scholarship

My own view is that Goold overstates the explanatory role of tort law. But even were that not the case, the courts need to reach some kind of “settled” understanding on these various interests before a cause of action is created or definitively rejected, and that no such consensus on the three matters mentioned yet exists, whether they are viewed as forms of tort or otherwise. Goold’s work may nevertheless be an important step toward reaching closure on these and other open questions in copyright law.

Copyright, Jane C. Ginsburg

Faculty Scholarship

This chapter o􀁼ers an overview of copyright in general in common law and civil law countries, with an emphasis on the United States (US) and the European Union (EU). It addresses the history and philosophies of copyright (authors’ right), subject matter of copyright (including the requirement of 􀁿xation and the exclusion of “ideas”), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. It also covers the liability of …

The Role Of The Author In Copyright, Jane C. Ginsburg

Faculty Scholarship

Two encroachments, one long-standing, the other a product of the digital era, cramp the author’s place in copyright today. First, most authors lack bargaining power; the real economic actors in the copyright system have long been the publishers and other exploiters to whom authors cede their rights. These actors may advance the figure of the author for the moral luster it lends their appeals to lawmakers, but then may promptly despoil the creators of whatever increased protections they may have garnered. Second, the advent of new technologies of creation and dissemination of works of authorship not only threatens traditional revenue …

Who’S Afraid Of Forever 21?: Combating Copycatting Through Extralegal Enforcement Of Moral Rights In Fashion Designs, Irina Oberman Khagi

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines the often underexplored theory of personality rights, or moral rights, as a justification for protection of intellectual property in the context of protection of fashion designs. Traditional forms of intellectual property protection have thus far proven inadequate to protect the overall design of an article of clothing or accessory; rather, most are only sufficient to protect portions of the design. Advocates for strengthened intellectual property rights regimes traditionally invoke utilitarian rights, or the need to provide an incentive for continued generation of new ideas. But these utilitarian theories appear to be less relevant in the fashion world, …

Digital-Age Claims For Old-World Rights, Joseph M. Beck, Allison M. Scott

Journal of Intellectual Property Law

No abstract provided.

Toward More Universal Protection Of Intangible Cultural Property, Cathryn A. Berryman

Journal of Intellectual Property Law

No abstract provided.

Reconciling The "Moral Rights" Of Authors With The First Amendment Right Of Free Speech, John T. Cross

Akron Intellectual Property Journal

The article concludes that the First Amendment does not significantly limit the enforcement of those moral rights recognized by state and federal law. Several features of moral rights laws support this conclusion. First, many acts that infringe moral rights do not qualify as speech, and therefore receive no First Amendment protection. For example, the droit de suite, or resale right, is clearly constitutional under this rationale, as it involves no speech whatsoever. Second, even when the offending act is speech, most moral rights laws can be justified, depending on the circumstances, by one or more of several arguments. Indeed, many …

On The Origins Of Le Droit Moral: How Non-Economic Rights Came To Be Protected In French Ip Law, Susan P. Liemer

Journal of Intellectual Property Law

No abstract provided.

The Effect Of The 1886 Berne Convention On The U.S. Copyright System's Treatment Of Moral Rights And Copyright Term, And Where That Leaves Us Today, Samuel Jacobs

Michigan Telecommunications & Technology Law Review

The 1886 Berne Convention was the most influential copyright related treaty for over a century, and provided important minimum substantive protections for authors. Key provisions included the establishment of the principle of National Treatment, the abolishment of formalities in order to receive copyright protection, a required copyright term of life of the author plus fifty years, and most offensive to the U.S. copyright system, the mandate that signatories provide authors non-economic moral rights. Despite the international importance and widespread acceptance of the Berne Convention, the U.S. did not join the Convention for over one hundred years, making it one of …

The Right To Say, "I Didn't Write That": Creating A Cause Of Action To Combat False Attribution Of Authorship On The Internet, Kathleen Brennan Hicks

Journal of Intellectual Property Law

No abstract provided.

Censorship By Intermediary And Moral Rights: Strengthening Authors’ Control Over The Online Expressions Through The Right Of Respect And Integrity, Methaya Sirichit

Methaya Sirichit

The mega intermediaries, the Leviathans of cyberspace, are practicing content discrimination and distortion of speech in the public communication space. These intermediaries operate vast close-walled digital empires that provide both communication platforms as well as an extremely broad range of products and services for billions of people. Consequently, they can easily slip past the deontological regulatory model that relies on a clear-cut determination between passive conduits, on one hand, and content providers or corporate speakers on another. In the United States, the First Amendment’s editorial privilege and the Good Samaritan safe harbors under Section 230 of the CDA shield networked …

The Empty Promise Of Vara: The Restrictive Application Of A Narrow Statute, David E. Shipley

Scholarly Works

The Visual Artists Rights Act (VARA) was enacted by Congress in 1990 in order to bring our laws into compliance with Article 6bis of the Berne Convention and to acknowledge that protecting moral rights will foster “a climate of artistic worth and honor that encourages the author in the arduous act of creation.” The passage of this legislation is said to show Congress’s “belief that the art covered by the Act ‘meet[s] a special societal need, and [its] protection and preservation serves an important public interest.’”

Notwithstanding these lofty statements about artistic worth, honor and encouraging creation, VARA is a …

United States Response To Questionnaire Concerning Moral Rights In The 21st Century, June M. Besek, Brad A. Greenberg

Kernochan Center for Law, Media, and the Arts

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Copyright In The Expanded Field, Xiyin Tang

Hofstra Law Review

Intellectual property law and the art forms it is meant to protect are expanding. In our information age, artists hoping to assert their rights frequently assert a combination of trademark, copyright, and right of publicity or moral rights claims in order to maximize their chances of success. This Article looks beyond IP law to some of its more unlikely complements — tort and property law — as a viable means of redress for artists who may be ineligible for copyright protection. Specifically, recent cases involving a specific form of hybrid art — land art, or “site specific art” — have …

Recognized Stature: Protecting Street Art As Cultural Property, Griffin M. Barnett

Chicago-Kent Journal of Intellectual Property

This Article discusses the current legal regimes in the United States implicated by works of "street art." The Article suggests an amendment to the Visual Artists Rights Act that would protect certain works of street art as "cultural property" - thereby promoting the arts and the preserving important works of art that might otherwise be at the mercy of property owners or others who do not share the interests of artists and the members of communities enhanced by works of street art.