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Desettling Fixation
No full textScholars have long contemplated how the effects of colonialism have permeated even race “neutral” laws. This Article scrutinizes the ways Eurocentric copyright systems have failed to protect, and have even encouraged, the unauthorized uses of indigenous heritage in derivative subject matter, exposing how settler colonialism in copyright law has entrenched an unequal hierarchy among communities seeking copyright protection. Due to its ephemeral nature, intangible cultural heritage constantly faces the threat of exploitation by dominant cultures. The intangible heritage of indigenous groups has been particularly vulnerable to illicit and uncompensated commodification. Intangible heritage, such as oral histories and traditional dances, is often of great social, psychological, and political importance for indigenous communities. The current national and international legal regimes have failed to protect indigenous communities from the misappropriation of their cultural resources.
Building on a comparative analysis of the fixation requirement in other countries, this Article proposes a reformation of the “fixation” requirement in American copyright doctrine, which requires a work to be “sufficiently permanent” for a period of “more than a transitory duration.” By allowing authors to establish copyright in ephemeral works, communities may be able to protect more effectively their intangible cultural heritage from commodification and misappropriation. This Article joins the call for reconsidering how copyright law reinforces structural inequities and proposes a novel solution. This Article is the first in legal literature to apply the process of desettling to a legal problem derived from settler colonialism. Through the desettling of fixation in copyright law, true “progress” can be realized
What is the Best Candidate for a Post-Moore Constitutional Challenge?
No full textOn December 5, 2023, the Supreme Court heard oral arguments in Moore, the case challenging the constitutionality of the mandatory repatriation tax enacted in 2017 (section 965). Most of the justices\u27 questions focused on the potential collateral consequences from requiring realization as a constitutional matter, and the majority seemed inclined to avoid the constitutional issue by focusing on the fact that the income in Moore was realized and that section 965 simply followed a long list of precedents by attributing this corporate income to shareholders in a closely held corporation
The Kids Are Not Alright: A Look into the Absence of Laws Protecting Children in Social Media
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No Flash Photography Please: An Analysis of Corporate Use of Street Art Under Section 120(a) of the AWCPA
No full textStreet art and graffiti are pervasive artforms found throughout the world and throughout history. While the artforms have been associated with crime and vandalism in the past, they have increasingly been featured in different capacities from art galleries to corporate marketing campaigns. With street art’s growing recognition and popularity, corporations have begun to use the medium to target new customer bases. In some situations, the use of artwork in marketing campaigns is unsanctioned by the artist. Therefore, courts have now begun to examine the balance between copyright protection for street artists and the corporate use of street art. Section 120(a) of the Architectural Works Copyright Act of 1990 (AWCPA) provides a limited panorama right to take pictorial representations of architectural works that are visible to the public without fear of copyright infringement. Specifically, the Central District of California and the Eastern District of Michigan have grappled with the copyright protections for street art appearing on buildings in the background of ad campaigns and Section 120(a).
This Note argues that the exemption found under Section 120(a) should be limited to noncommercial uses of street art in order to balance street artists’ copyright interests with the relative resources of companies that wish to use the artwork. Limiting Section 120(a) to noncommercial uses would also align with the congressional intent behind the exemption and would be analogous with other Berne Convention signatory countries who also provide a limited panorama right for noncommercial uses. Courts and the general public have recognized the valuableness of street art and graffiti. Therefore, street art should receive increased copyright protection similar to other artforms
Introduction: Medical-Legal Partnerships: Equity, Evolution, and Evaluation.
No full textThe COVID-19 pandemic laid bare systemic inequities shaped by social determinants of health (SDoH). Public health agencies, legislators, health systems, and community organizations took notice, and there is currently unprecedented interest in identifying and implementing programs to address SDoH. This special issue focuses on the role of medical-legal partnerships (MLPs) in addressing SDoH and racial and social inequities, as well as the need to support these efforts with evidence-based research, data, and meaningful partnerships and funding
An LLC by Any Other Name Is Still Not a Corporation
No full textBusiness entities have their own unique characteristics. Entrepreneurs and lawyers who represent them select an entity structure based on the business’s current and projected needs. The different needs of each business span myriad topics such as capital requirements, taxation, employee benefits, and personal liability protection. These choices present advantages and disadvantages, many of which are built into the type of entity chosen. It is critically important that people, especially lawyers, recognize the difference between entities such as corporations and limited liability companies (LLCs). It is an egregious, nearly unforgivable, error to call an LLC a “limited liability corporation.” This is not only because lawyers should try to get things right but also because conflating the two entity types can lead to unpredictable outcomes. Perhaps more important, it could lead to incorrect and unjust results. A prime example lies within the veil piercing context. There are nearly nine thousand references to the phrase “limited liability corporation” in court cases. Practicing attorneys are not the only people messing this up. Judges, legislators, federal and state agency officials, and media pundits are also getting it wrong. Most recently, Justice Samuel Alito scribed an op-ed that was published in The Wall Street Journal where he misused the term. Even the TV show Jeopardy! allowed “What is a limited liability corporation?” as the correct answer during one episode. Enter artificial intelligence (AI). AI relies on information it can find, and therefore text generators, like ChatGPT, replicate the incorrect term. With a proliferation of users and programs using ChatGPT and other AI resources, the use of incorrect terminology will balloon and exacerbate the problem. Perhaps one day, AI can be used to correct this problem, but that cannot happen until there is widespread understanding of the distinct nature of LLCs and a commitment to using precise language. This Article informs of the looming harms of misidentifying and conflating LLCs with corporations. Additionally, it presents a warning together with ideas on how to correct the use of incorrect terminology in all contexts surrounding LLCs
Exceedingly Unpersuasive” - Discrimination, Transgender Students, and School Bathrooms
No full textThis Article is organized chronologically, in an effort to more effectively reflect the nearly identical fact patterns, timelines, and intersecting opinions of these cases. Part I provides the factual background of both cases. Part II summarizes the substantial preliminary litigation in Grimm; Part III examines the district court ruling in Adams; Part IV analyzes the summary judgment ruling in Grimm. Part V covers Adams’ first appellate ruling; Part VI discusses the Fourth Circuit’s ruling in Grimm three weeks later, and Part VII considers the aftermath of that decision. Parts VIII and IX explore the second panel ruling in Adams and the majority and dissenting en banc opinions, respectively. Part X considers the significant lessons from all these opinions and analyzes the relative strengths and weaknesses of the arguments for expanding or restricting the LGBTQ rights
Unraveling a Ball of Confusion: Layers of Criminal Intent, Facebook, Rap, and Uncertainty in Elonis v. United States, 135 S. Ct. 2001 (2015)
No full text“So, round and around and around we go. Where the world\u27s heading nobody knows...Just a ball of confusion.
Elonis v. United States was a much-awaited case needed to clarify many questions within its realm. Part of the case\u27s allure was its facts: threats, rap, and Facebook. While the alluring circumstances were well-presented, the potential for clarification was not realized. As the quotes from the various opinions above suggest, a song from the oldies had hinted at this ruling correctly when its lyrics said it\u27s just a ball of confusion. This Note seeks to unravel this ball of confusion to give, as one Justice urged, some certainty and direction for future courts and ordinary Facebook users