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A Womanist’s Poetic, Theo-Ethical Response to Sexual Trauma: Ethics, Theology & Black Women’s Poetry
No full textThis paper gestures towards a womanist response to a recent conversation with a friend, indicative of many black women’s experiences of sexual trauma and struggle to reconcile their identity as black women, Christians, and survivors. I put in conversation black feminist writings, womanist ethics and theology, and black women’s poetry to gesture towards a womanist response to sexual trauma. This paper makes three primary claims. First, I assert that womanist theology and ethics provides a firm foundation for Christian responses to sexual trauma. Second, I argue for contemporary womanist ethics as a crucial dialogue partner for sexual trauma survivors. And finally, I posit the moral knowledge gleaned from three black women’s poems as guides for womanist responses to sexual trauma
Warhol’s Lessons for the Publishing Industry
Get PDFWhat, if anything, can the publishing industry learn from Andy Warhol Foundation v. Goldsmith? In this Article, I will focus on three key areas that the Warhol Court touched on in its decision—transformativeness, commerciality, and market harm—to see what questions were answered and what questions were left for another day
Publishing is, of course, the original copyright industry. The world’s first general copyright law, Great Britain’s Statute of Anne, exclusively protected “books.” The primary focus of the first copyright law in the United States was also books, though the law also covered maps and charts. Today, the U.S. publishing industry is diverse, ranging from major commercial book and journal publishers to small, non-profit, university, and scholarly presses, as well as leading publishers of educational materials and digital learning platforms. Further, it remains vital to society. In 2022, the U.S. book publishing industry generated $28.1 billion in revenue. Beyond its economic contributions, a healthy and independent publishing industry supports the nation’s political, intellectual, and cultural systems. Indeed, the free operation of the publishing industry in a nation cannot be separated from the free exercise of democracy.
Copyright continues to serve as a critical legal foundation for the work of publishers. This includes both an appropriately balanced fair use doctrine, which publishers rely on regularly in the course of their work, and a meaningful derivative works right.
Helping courts correctly distinguish between the two is what motivated the Association of American Publishers (AAP), the national trade association for U.S. publishers, to file an amicus brief in support of Lynn Goldsmith. AAP’s concern was not that courts were generally not getting it right, at least in cases involving books and other publications. The concern, rather, was that there was a lot of room for the Supreme Court to get things wrong and undermine the derivative works right through an unbalanced conception of the transformativeness doctrine.
The amicus brief observed that “[p]ublishers rely on the derivative works right daily, including to justify the use of a license for a film adaptation of a novel, translation of a novel into another language, or recasting of a novel into an ebook or audiobook—all of which are quintessential examples of derivative works.” Publishers in the educational space also rely on the derivative works right to protect supplementary materials, instructor solution manuals, and other adjuncts to the textbooks and course materials they create and distribute.
From the perspective of book publishers, then, the Court got it right. It recognized the tension between transformativeness and the derivative works right, explaining that “an overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works." If the Court did nothing beyond shining a light on this tension, it would be considered a good outcome for publishers
What the Warhol Court Got Wrong: Use as an Artist Reference and the Derivative Work Doctrine
Get PDFIn Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work.” It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may be subject to the exceptions and limitations in the statute, such as fair use.
Examining longstanding artistic practices, case law, and our recent study of professional photographers, this Article develops a more nuanced view of the relationship between the artist reference and the derivative work. Drawing on this evidence, we argue that courts should explicitly engage with the characteristics and context of the reference and the new work before arriving at a determination of infringement or noninfringement between the two works.
This reasoning applies equally whether the use of an artist reference is initially licensed or unlicensed by a second artist. When expressly authorized, artist references are simply permissions to use—a ticket to entry, permission for access to the work in its tangible and intangible forms. And, importantly, they are just the beginning of an artistic process. What the new author produces based on the artist reference makes all the difference, and legal liability should depend on aesthetic evaluation of both the referenced work and the new work. Avoiding that aesthetic evaluation and misconstruing an agreement to “use as an artist reference” as a license to prepare a derivative work, which the Supreme Court did in its formalistic approach in Warhol, is a shortcut that distorts copyright law and harms creative practice
Contract Realism and Formalism in Preliminary Acquisition Agreements and Negotiations: Joseph A. Franco
Get PDFPreliminary negotiations in which a binding contract is imputed, and formal preliminary agreements, which may create a binding contract of undetermined scope, have special prominence in the corporate acquisition context. Case law in this area of preliminary dealings is arguably confused and unsatisfying. In recent years, contract scholars (including M&A scholars) have theorized about the purpose of such preliminary dealings primarily in the context of formal preliminary agreements, and they have also considered the role of informal negotiations and non-binding agreements in contract creation. Notwithstanding differences, these scholarly analyses have uniformly maintained that common law principles (if applied correctly) provide a coherent approach to preliminary dealing conduct. In contrast to this approach to preliminary dealings, this paper argues that, in the corporate acquisition context, preliminary dealings should be addressed under a different regime of formal contracting standards. The existing common law regime protects the integrity of preliminary dealing conduct (both formal and informal) at the risk of mistakenly imposing contract obligations on an unsuspecting party. In the distinctive context of corporate acquisitions, this approach fails to minimize efficiently the costs arising from the mistaken imposition of contractual obligations. Specifically, corporate acquisitions invariably conjoin features that alter the marginal social costs and benefits associated with contract formation, features which are uncharacteristic of many, if not most, contracting situations. Salient features in the corporate acquisition context jointly include: (i) an intrinsically multi-step bargaining process; (ii) the routine participation of sophisticated business counsel; (iii) potentially enormous contractual liability arising from contested (and generally equivocal) inferences where contractual clarity can be obtained at relatively low cost; and (iv) disproportionate windfalls or forfeitures for third-party stakeholders in the case of mistakenly imposed obligations.
This paper proposes an alternative formal regime: an enhanced statutory signed acquisition agreement requirement (“SAAR+”). The requirement would directly address preliminary negotiations in acquisitions where a binding contract might otherwise be imputed, as well as the ill-defined contractual status and scope of formal preliminary acquisition agreements. Drawing inspiration from Judge Friendly’s observation advocating a fairly simple bright-line approach in complex business negotiations generally, a SAAR would preclude the formation of a binding agreement based on preliminary negotiations regardless of specificity in the absence of a signed acquisition agreement. A simple SAAR formality, however, would do little to eliminate the contractual opacity that inheres in signed formal preliminary acquisition agreements which may or may not be binding and, if binding, whose scope may be ill-defined. This inherent opacity of formal preliminary agreements is addressed with the enhanced SAAR+ regime: a simple SAAR coupled with a default rule that would limit damage remedies to reliance damages unless the parties expressly contract otherwise, either to eliminate damages, or to allow damages in excess of reliance damages. The default rule would incentivize contracting parties to make their intentions explicit with respect to the intended status and scope of any formal preliminary acquisition agreement
A Products Liability Framework for AI
Get PDFA products liability framework, drawing inspiration from the regulation of FDA-approved medical products—which includes federal regulation as well as products liability—holds great promise for tackling many of the challenges AI poses. Notwithstanding the new challenges that sophisticated AI technologies pose, products liability provides a conceptual framework capable of responding to the learning and iterative aspects of these technologies. Moreover, this framework provides a robust model of the feedback loop between tort liability and regulation.The regulation of medical products provides an instructive point of departure. The FDA has recognized the need to revise its traditional paradigm for medical device regulation to fit adaptive AI/ML technologies, which enable continuous improvements and modifications to devices based on information gathered during use. AI/ML technologies should hasten an even more significant regulatory paradigm shift at the FDA away from a model that puts most of its emphasis on (and resources into) ex ante premarket approval to one that highlights ongoing postmarket surveillance. As such a model takes form, products liability should continue to play a significant information-production and deterrence role, especially during the transition period before a new ex post regulatory framework is established
One Health: The Future of Ecosystem Health and Where to Start
No full textHighly relevant to our current and future global state is the need for ecosystem conservation. Rewilding, the process of introducing wildlife to degraded areas, is one such method of conservation. Rewilding is primarily applied from an ecological point of view and largely fails to consider the public health and systemic implications of habitat restoration. As such, a new conservation paradigm is warranted. One Health is a global health approach that considers the complex interplay between humans, animals, and their shared environment. While One Health examines the social, political, and economic context of degraded areas to prioritize systemic advancement and disease prevention in conjunction with conservation, the large scope and transdisciplinary nature of One Health make it challenging to implement. Rewilding efforts conducted by the Conservation Landscape Institute (CLI) in South Africa’s Eastern Cape is an ideal candidate for a One Health approach. With stable funding, infrastructure, and institutional support, CLI is prime for a transition to a One Health framework that can serve as a model for One Health implementation worldwide. As concerns about systemic inequality, disease prevalence, and ecosystem degradation increase, it is necessary to take advantage of the opportunity provided at CLI to establish the new global health paradigm that is One Health