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Copyright Co-Ownership in Uncertain Times: How Security Interests Can Save the Day
Get PDFFilms and television series are increasingly being created undera co-production model, making copyright co-ownership a common occurrence in the world of Hollywood content creation. So long as each co-owner’s rights are pre-negotiated and specifically delineated in their contracts, the co-owners can rest assured that their rights to the project and any potential derivative works are safe. Or can they?
In the modern entertainment landscape, where tentpole programming and related spinoffs and derivatives are the gold standard of content creation, the proper protection of co-owned copyrights is more important than ever. But tenuous financial outlooks pose a looming, existential threat to the future of copyright co-owners. Will their co-owners declare bankruptcy, and what does that mean for those highly negotiated rights? Is there anything that entertainment executives can do to protect their companies and their content?
This Article argues that security interests are common sense protections for copyright co-owners
Albrecht Dürer’s Enforcement Actions: A Trademark Origin Story
No full textThis Article offers a trademark-framed reappraisal of a pair of extraordinary enforcement actions brought by the Northern Renaissance artist Albrecht Dürer (1471–1528) against copyists of his work. These cases have long been debated by art, cultural, and copyright historians insofar as they appear to reject Dürer’s demand for protocopyright protection. Commentators have also contested the historicity of one of the two narratives. But surprisingly little attention has been paid by trademark scholars to the companion holdings-—in the same texts-—that affirm Dürer’s right to prevent the use of his monogram on unauthorized reproductions.
This Article seeks to fill that gap by analyzing Dürer’s cases through the lens of twenty-first-century trademark theory. It argues that, properly contextualized and understood, the cases provide remarkable and early accounts of two tribunals giving prototrademark relief to a famous artist and his brand. They mark a critical moment in trademark history even if portions of the underlying narratives are unreliable. More broadly, they invite us to reconceptualize the role of artists and aesthetics as a concealed but core aspect of trademark law’s otherwise commercial and industrial legal history
His Ship Has Sailed--Expelling Columbus from Cultural Heritage Law
Get PDFLatin America is a region rich with cultural heritage that existed for centuries before its antiquities were looted, trafficked, and sold on the international market. The language used to classify these objects of cultural heritage has been a tool of oppression and erasure. In reference to those objects of historical importance, auction houses, dealers, museums, and even looters themselves consistently use the term “Pre- Columbian.” “Pre-Columbian,” which means “before Columbus,” defines the historical period prior to the establishment of the Spanish culture in the national territories of Mexico, Central America, South America, and the Caribbean islands. In fact, this definition is the basis of the 1972 Pre-Columbian Act in the United States, which addresses trafficking of Latin American sculptures, murals, and architectural elements. This Article examines the use of “Pre-Columbian” in American cultural heritage law in the conext of linguistic settler colonialism, which results in the oppression and continued trauma of cultures through the use of harmful language. This Article argues that any eference to Columbus in the laws impacting Latin American cultural heritage contributes to the erasure of Indigenous peoples. Its use advances the fallacy that these peoples were “primitive,” “tribal,” or even “uncivilized.” It also perpetuates the belief that these groups only exist through their connection to Europe. Through a comprehensive examination of the term “Pre-Columbian” and its detrimental impacts on Indigenous cultures, this Article begins the process of removing problematic language from cultural heritage law
After Action: The U.S. Drone Program\u27s Expansion of International Law Justification for Use of Force against Imminent Threats
Get PDFUntil the 2000s, the United States\u27 attempts to shift international legal norms on imminence to allow for greater use of armed force abroad were largely unsuccessful. In the past two decades, however, drone use and careful legal gamesmanship by U.S. officials have opened an unprecedentedly broad allowance for use of force in imminent self-defense. As drones become increasingly available to state and non-state actors, this permissive regime poses a threat to national and international security. This Note analyzes two decades of international customary law formation around drone use outside of armed conflict through a new lens post U.S.-withdrawal of Afghanistan. It traces the history of the imminence exception to Article 2(4)\u27s prohibition on use of force, U.S. attempts to expand that exception, and the history of drone use outside of armed conflict. It then analyzes recent opinio juris and state practice to point to the adoption of elongated imminence into customary international law. Finally, it identifies some of the dangers of the current permissive paradigm and presents opportunities for U.S. leadership in forming a more advantageous and secure definition of imminence
What’s in the Contract?: Rockefeller, the Hague Service Convention, and Serving Process Abroad
Get PDFToday’s global economy relies on transnational commerce. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”), implemented in 1965, encouraged transnational commerce by establishing a streamlined mechanism for serving foreign parties with process. More reliable international service methods helped ensure parties that they could resolve disputes with foreign parties through the courts. The Hague Service Convention thus created a bridge between civil and common law procedures on service while reducing some of the risks of engaging in business with foreign parties.
At the same time, the Hague Service Convention frequently runs into tension with contractual provisions that address service of process. Even though much international dispute resolution occurs through arbitration today, these arbitral awards are often enforced through national court systems. Many parties choose specific service methods by contract for potential disputes or enforcing arbitral awards, and these service provisions may not comply with one party’s home country’s interpretation of the Hague Service Convention. In particular, Article 10 of the Hague Service Convention permits mail service on a foreign defendant only if the state of destination does not object. But what happens when a defendant in an objecting state agrees to mail service by contract? Should courts adhere to a nation-state’s objection to mail service within its borders, and ignore the contract? Or should the court give meaningto the parties’ contract and permit such service into the objecting state?
These two approaches-—which this Note refers to as the supremacy and autonomy approaches, respectively-—offer distinct solutions to the “contracting around” issue that arose in the California Supreme Court’s Rockefeller opinion. Both the supremacy and autonomy approaches emphasize different values, with the supremacy approach underscoring the Hague Service Convention and sovereignty over contracts between parties. The autonomy approach, alternatively, supports the parties’ interests in adhering to their bargained-for contract and avoiding the use of the Hague Service Convention as a defensive mechanism by wily defendants. Given the prevalence of both transnational commerce and contractual service provisions, courts will continue to face this “contracting around” issue going forward. Indeed, these uncertainties harm the global economy by inserting uncertainty into transnational relationships: Will a party be able to effectively hold another party accountable through dispute resolution if it cannot use an agreed-upon method of service?
This Note proposes a solution that draws on both of the above approaches. The Hague Service Convention and the Federal Rules of Civil Procedure already support waiver of service that avoids countries’ Article 10(a)objections. Under these textual readings of the treaty and rules, parties must focus on “what’s in the contract” and determine (1) whether waiver is permissible under the forum’s law, (2) if the parties have waived service, and (3) if the Hague Service Convention even applies. Through these textual interpretations, alongside potential clarifications from the Hague Conference and the Advisory Committee on Civil Rules, this Note offers a way to reassure parties engaged in transnational commerce of the availability of service of process that quickly and effectively triggers dispute resolution. A clear waiver regime will support the enforcement of arbitration awards and thus strengthen the primary transnational dispute resolution mechanism in use today, without overriding the sovereignty of nation-states who object to specific service methods under the Hague Service Convention
Globalize Me: Regulating Distributed Ledger Technology
Get PDFDistributed Ledger Technology (DLT)—the technology underlying cryptocurrencies—has been identified by many as a game-changer for data storage. Although DLT can solve acute problems of trust and coor- dination whenever entities (e.g., firms, traders, or even countries) rely on a shared database, it has mostly failed to reach mass adoption out- side the context of cryptocurrencies.
A prime reason for this failure is the extreme state of regulation, which was largely absent for many years but is now pouring down via uncoordinated regulatory initiatives by different countries. Both of these extremes—under-regulation and over-regulation—are consistent with traditional concepts from law and economics. Specifically, when- ever DLT implements a “public blockchain”—where there is no screening of who joins the network—both the technology and its regula- tion constitute what economists call “non-excludable goods.” For these types of goods, two classical incentive problems emerge: (i) over- regulation, due to the “tragedy of the commons,” and (ii) under- regulation, due to the “free-rider problem.”
We argue that these problems are best solved using some form of global regulation. Comparing alternative paths to such regulation, including (i) centralized regulation, (ii) decentralized regulation, and (iii) international standards, we analyze how global regulation of DLT could be implemented using a mixture of “on-chain” (embedded in the technology itself) and “off-chain” measures. Our Article is the first to analyze why global regulation of DLT makes sense from a law and economics perspective and is also the first to provide concrete suggestions on how to implement such regulation
Growth ≠ Density: Zoning Deregulation and the Enduring Problem of Sprawl
Get PDFAccording to its many critics, zoning bears significant responsi- bility for the housing crisis in America andfor promoting unsustain- able development patterns. Reformers argue that zoning reduces the supply of new housing and therefore drives up prices in thriving communities. Zoning also increases carbon emissions by restricting density in the urban core and promoting carbon-intensive, land- consuming, automobile-dependent sprawl in single-family suburbs. A growing chorus calls for relaxing zoning limits in order to pro- mote growth in the urban core as a response to the twin crises of housing costs and climate change. Relaxing zoning limits will al- most certainly promote growth but may not promote density. Some of the most loosely zoned cities in America are also the least dense. This symposium contribution examines the relationship between density and zoning intensity and finds that density is loosely corre- lated with more intensive zoning, not less. This is not a causal claim but nevertheless raises questions whether zoning deregulation will necessarily produce both growth and density
Co-Authorship Between Photographers and Portrait Subjects
Get PDFwork with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be situated in full light or obfuscated by shadow, among many other options. A subject’s rights in photographs have not been fully explored. The Supreme Court avoided deciding the issue more than a century ago. Today, paparazzi and celebrities make high-stakes legal assertions about copyright infringement and fair use through litigation.
Certain portrait photographs of an individual person may be works of joint authorship, the co-authors being the photographer and the subject. While it is established across the globe that photographs merit copyright protection, and that the rights in a photograph generally vest in the photographer, it is a mistake to allow the authorial inquiry into every photograph to end there. Copyright law is accustomed to doing the hard work of specific factual analysis; its fair use doctrine requires such scrutiny, and an apportionment of joint authorship should be no different. The construction of joint authorship is legally flexible, at least in the manner that it is codified. This Article proposes making better use of a framework that already exists in US copyright law. No legislative change is necessary, but courts’ current interpretation of joint authorship requires recalibration to permit more flexibility. Such a stance will more accurately reflect how creative people work together and will bestow rights more fairly and on creative parties, which will sometimes include photographic subjects
Major Contradictions at the Roberts Court
Get PDFThe Roberts Court may well overturn the Chevron doctrine this Term, despite the affection for stare decisis that Chief Justice Roberts himself expressed in the related case of Kisor v. Wilkie. Against that backdrop, Professors Jodi Short and Jed Shugerman offer an analysis of why the Court’s major questions doctrine, a predecessor to interring Chevron, is inconsistent with another group of the Court’s opinions, which the authors describe as the Court’s presidentialism.
Their analysis is incisive. While addressed to a Court that has a rather cavalier attitude toward doctrinal coherence, the article’s convincing empirical evidence may encourage the Justices to be more thoughtful as they move into the post-Chevron phase of administrative law. In any event, it will certainly provide observers with insights for continued criticism of the Court, and perhaps provide this Court’s successor with guidance for repairing the damage
Changes in Household Recycling Behavior: Evidence from Panel Data
Get PDFThis article uses a longitudinal national U.S. dataset with 232,309 pairs of same-household observations to estimate one-year or two-year changes in recycling behavior. Most households recycled at least one material, as 83% recycle paper, cans, glass, or plastic in the past year, with an average recycling rate of 2.8 materials. Recycling habits are stable, as 68% of households do not change the number of materials recycled from the previous year. Changes in county recycling are reflected in immediate changes in household behavior but at 25% of the change in the county recycling rate. Recycling rates are greater after being newly exposed to deposit laws (+7%), moving to a state with effective recycling laws (+6%), or newly available single-stream recycling (+4%). If market prices for the returned cans doubled, household recycling of cans would increase by 12%, although price responsiveness of recycling other materials is less. Shocks to the household may diminish recycling in the short term, including marriage (− 2%), arrival of a newborn (− 1%), and either large increase in income (− 1%) or large decrease in income (− 3%). The estimates for the total number of materials and which particular materials a household recycles follow similar patterns