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Law & Humanities Blog

Law & Humanities Blog

Why Films About the Wrong Side of the Law Are So Appealing

Posted: 01 Oct 2010 09:44 AM PDT

From the New York Times, an article on the history and evolution of the crime film.

Protecting Intellectual Property "In Progress"

Posted: 01 Oct 2010 08:19 AM PDT

Nathan Murphy, University of Connecticut, has published Thème Et Varaations: Why the Visual Artists Rights Act Should Not Protect Works-in-Progress, at 17 UCLA Entertainment Law Review 110 (2010). Here is the abstract.

Many countries recognize "moral rights," which allow artists some level of control of their art after it is sold, for example by guaranteeing that their work's authorship is acknowledged and that it cannot be modified without their permission. In contrast to Europe, where they have long existed, these rights have only been broadly recognized in American law since 1990, when Congress enacted the Visual Artists Rights Act (VARA).



Although other parts of VARA have received extensive scholarly attention, one question that has been essentially overlooked is whether VARA applies to unfinished works of art. This is surprising, because it has been central in some of the most well-known VARA decisions. Until very recently, those opinions that could have weighed in on the issue have also avoided it. But given how often the issue arises, courts could not avoid it forever, and in late January of 2010, the United States Court of Appeals for the First Circuit decided in Massachusetts Museum of Contemporary Art v. Büchel, No. 08-2199, 2010 WL 297834 (1st Cir. Jan 27, 2010), that VARA fully applies to works-in-progress, from the first stroke of the artist's brush onward.



Although some authors have rejected the doctrine of "moral rights" wholesale, that is most decidedly not the aim of this paper. Instead, its central argument is that VARA does not (and should not) apply to any works-in-progress, regardless of whether these works would (or should) be protected in finished form. Although this implies that that MassMoCA was wrongly decided, the argument is much broader. Indeed, the MassMoCA opinion's cursory analysis belies the fact that the question of works-in-progress is very complex. Accordingly, this paper examines VARA's statutory history, contemporary art theory, and the economic underpinning of the unique American moral-rights framework and concludes that they all suggest no VARA protection for works-in-progress. Further, this reading is (counterintuitively) most consistent with the statute's aim to protect artists' moral rights. Unlike with completed art, "moral rights" in unfinished works are protected existing legal remedies.
Download the article from SSRN at the link.

The History of Fair Use

Posted: 01 Oct 2010 08:16 AM PDT

Matthew Sag, DePaul University College of Law, has published The Pre-History of Fair Use. Here is the abstract.

This article reconsiders the history of copyright's pivotal fair use doctrine. The history of fair use does not in fact begin with early American cases such as Folsom v. Marsh in 1841, as most accounts assume - the complete history of the fair use doctrine begins with over a century of copyright litigation in the English courts. Reviewing this 'pre-history' of the American fair use doctrine leads to three significant conclusions. The first is that copyright and fair use evolved together. Virtually from its inception, statutory copyright went well beyond merely mechanical acts of reproduction and was defined by the concept of fair abridgment. The second insight gained by extending our historical view is that there is in fact substantial continuity between fair abridgment in the pre-modern era and fair use in the United States today. These findings have substantial implications for copyright law today, the principal one being that fair use is central to the formulation of copyright, and not a mere exception.



The third conclusion relates to the contribution of Folsom v. Marsh itself. The pre-modern cases illustrate a half-formed notion of the derivative right: unauthorized derivatives could be enjoined to defend the market of the original work, but they did not constitute a separate market unto themselves. Folsom departs from the earlier English cases in that it recognizes derivatives as inherently valuable, not just a thing to be enjoined to defend the original work against substitution. This subtle shift is important because while the boundaries of a defensive derivative right can be ascertained with respect to the effect of the defendant's work on the plaintiff's original market, the boundaries of an offensive derivative right can only be determined with reference to some other limiting principle. This extension of the derivative right may well have been inevitable. It seems likely that as more and more derivatives were enjoined defensively, courts and copyright owners began to see these derivatives as part of the author's inherent rights in relation to his creation. In other words, once copyright owners were allowed to preclude derivatives to prevent competition with their original works, they quickly grew bold enough to assert an exclusive right in derivative works for their own sake. A development which, for good or ill, bridges the gap between pre-modern and modern copyright.
Download the article from SSRN at the link.

Another Review of David Rabban's Law's History

Posted: 01 Oct 2010 08:14 AM PDT

Roy Kreitner, Harvard University Institute for Global Law and Policy, and Tel Aviv University, Buchmann Faculty of Law, has published Heroes, Anti-Heroes, and Villains, at  1 Jerusalem Review of Legal Studies 96 (2010). Here is the abstract.


This is Roy Kreitner's contribution to the symposium on David Rabban's book "Law's History: Late Nineteenth-Century American Legal Scholarship and the Transatlantic Turn to History".
Download the article from SSRN at the link.

A Review of David Rabban's Law's History

Posted: 01 Oct 2010 08:11 AM PDT

Ron Harris, Tel Aviv University, Buchmann Faculty of Law, has published The Politics of Historical Narratives: Comment on David Rabban's Law's History at 1 Jerusalem Review of Legal Studies 81 (2010). Here is the abstract.

This is Ron Harris's contribution to the symposium on David Rabban's book "Law's History: Late Nineteenth-Century American Legal Scholarship and the Transatlantic Turn to History".
Download the article from SSRN at the link.
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