Frye on The Stolen Poem of Saint Moling @brianlfrye @ShubhaGhosh @ElgarPublishing

Brian L. Frye, University of Kentucky College of Law, is publishing The Stolen Poem of Saint Moling in Forgotten Intellectual Property Lore (Shubha Ghosh ed. Edward Elgar 2019). Here is the abstract.

It’s a truism of copyright scholarship that the modern concept of the author didn’t exist until the modern era. The medieval and Renaissance author was a vehicle for the text, but the modern author is the creator of the text. And in the 18th century, the Romantic movement transformed authorship into self-expression. This individualization of authorship enabled the creation of copyright. While the printing press made commercial publishing possible, the modern concept of the author created “literary property.” But is the truism entirely true? The concept of the author has certainly changed over time, and taken different forms in different places at different times. But is the modern concept of the author truly unique to the modern era, or does it merely reflect a particular literary economy? In other words, did our concept of the author create our literary economy, or did our literary economy shape our concept of the author? Surely, the answer is a bit of both. But a medieval Irish legend at least suggests that the modern concept of the author is only a particular expression of an economic phenomenon.

Download the essay from SSRN at the link.

Abdel-Khalik on Scènes à Faire As Identity Trait Stereotyping @UMKCLaw

Jasmine Abdel-Khalik, University of Missouri, Kansas City, is published Scènes à Faire As Identity Trait Stereotyping in volume 2 of the Business, Entrepreneurship & Tax Law Review (2018). Here is the abstract.

Nichols v. Universal Pictures is one of the seminal copyright cases, but there is an unexplored component the decision - the court's discussion of the "low comedy Jew and Irishman." The decision creates at least one place where the law not only recognizes but may expect and encourage stereotyping based on race, ethnicity, gender, sexual orientation, gender expression, nationality, and the like (“identity traits”) - stock characters. A stock character is the archetype of a story’s character and, as such, is excluded from copyright protection, making the stock freely available for other authors to use. However, harm arises when courts agree that a stock character is comprised of an identity trait and any other characteristic, indicating that what flows naturally from that identity trait is something more than just that identity - a stereotype. Courts cannot solve the societal harm of stereotyping, but it can take steps to minimize identity trait stereotyping while continuing to permit the use of stock characters. First, courts should recognize three categories of characters in creative works: stock, indefinite, and distinctly delineated. While only distinctly delineated characters would have copyright protection, the intermediate category allows courts to find that a character has multiple characteristics without implying that the characteristics are standard for specific identity traits. Second, courts must separate the determination of a character’s scope and copyrightability from the substantial similarity analysis to avoid conflating similarity with stock. Third, when possible, courts should also take the opportunity to correct the errors of the past. While no copyright doctrine alone is to blame for society’s stereotyping and stereotypes, scènes à faire grants judicial approval for continuing stereotyping. Without more care, the consequences could not only further entrench negative stereotypes in the creative mind, but also in the minds of those who consume their creative product.

Download the article from SSRN at the link.

Forthcoming: Matthew H. Birkhold, Characters Before Copyright (OUP, 2019) @OxUniPress

Matthew H. Birkhold, Assistant Professor of German and Assistant Professor of Law, The Ohio State University, is publishing Characters Before Copyright: The Rise and Regulation of Fan Fiction in Eighteenth-Century Germany (Oxford University Press, 2019). Here from the publisher's website is a description of the book's contents.

How did authors control the literary fates of fictional characters before the existence of copyright? Could a second author do anything with another author's character? Situated between the decline of the privilege system and the rise of copyright, literary borrowing in eighteenth-century Germany has long been considered unregulated. This book tells a different story. Characters before Copyright documents the surprisingly widespread eighteenth-century practice of writing fan fiction literary works written by readers who appropriate preexisting characters invented by other authors and reconstructs the contemporaneous debate about the literary phenomenon. Like fan fiction today, these texts took the form of sequels, prequels, and spinoffs. Analyzing the evolving reading, writing, and consumer habits of late-eighteenth-century Germany, Characters before Copyright identifies the social, economic, and aesthetic changes that fostered the rapid rise of fan fiction after 1750. Based on archival work and an ethnographic approach borrowed from legal anthropology, this book then uncovers the unwritten customary norms that governed the production of these works. Characters before Copyright thus reinterprets the eighteenth-century literary commons, arguing that what may appear to have been the free circulation of characters was actually circumscribed by an exacting set of rules and conditions. These norms translated into a unique type of literature that gave rise to remarkable forms of collaborative authorship and originality. Characters before Copyright provides a new perspective on the eighteenth-century book trade and the rise of intellectual property, reevaluating the concept of literary property, the history of moral rights, and the tradition of free culture.

 

Frosio on Reimagining Digital Copyright Through the Power of Imitation: Lessons From Confucius and Plato @GCFrosio

Giancarlo Frosio, Université de Strasbourg - CEIPI; Stanford University - Stanford Law School Center for Internet and Society, is publishing Reimagining Digital Copyright through the Power of Imitation: Lessons from Confucius and Plato in volume 5 of the Peking University Transnational Law Journal (Forthcoming). Here is the abstract.

For millennia, Western and Eastern culture shared a common creative paradigm. From Confucian China, across the Hindu Kush with the Indian Mahābhārata, the Bible, the Koran and the Homeric epics, to Platonic mimēsis and Shakespeare’s “borrowed feathers,” our culture was created under a fully open regime of access to pre-existing expressions and re-use. Creativity used to be propelled by the power of imitation. However, modern policies have largely forgotten the cumulative and collaborative nature of creativity. Actually, the last three decades have witnessed an unprecedented expansion of intellectual property rights in sharp contrast with the open and participatory social norms governing creativity in the networked environment. Against this background, this paper discusses the reaction to traditional copyright policy and the emergence of a social movement re-imagining copyright according to a common tradition focusing on re-use, collaboration, access and cumulative creativity. This reaction builds upon copyright’s growing irrelevance in the public mind, especially among younger generations in the digital environment, because of the emergence of new economics of digital content distribution in the Internet. Along the way, the rise of the users, and the demise of traditional gatekeepers, forced a process of reconsideration of copyright’s rationale and welfare incentives. Scholarly and market alternatives to traditional copyright have been plenty, attempting to reconcile pre-modern, modern and post-modern creative paradigms. Building upon this body of research, proposals and practice, this Article will finally try to chart a roadmap for reform that reconnects Eastern and Western creative experience in light of a common past, looking for a shared future.

Download the article from SSRN at the link.

Alexander on Publishing Peter Pindar: Production, Profits, and Piracy in Georgian Satire

James R. Alexander, University of Pittsburgh, Johnstown, has published Publishing Peter Pindar: Production, Profits and Piracy in Georgian Satire at 112 Papers of the Bibliographical Society of America 149 (2018).

As the scurrilous poet ‘Peter Pindar,’ John Wolcot was the most provocative English political satirist in the late 18th century. His smirkingly disrespectful lampooning of the King and his ministers brought widespread popularity and profits, but perilously close to prosecution for seditious libel in the mid-1790s in a period of patriotic zeal when the Pitt government was pressing indictments against dissenting and reformist writers. So Wolcot’s claim of copyright infringement against his own publisher seemed both miscalculated, as it raised the common law assumption that prospectively libelous and therefore criminal works were a threat to public order and therefore ineligible for court protection under copyright. While at the time perhaps an inconsequential procedural ruling, Walcot v. Walker (1802) would inadvertently become a benchmark in copyright law doctrine. In an effort to provide some contextual perspective to the ruling and its interpretation, this essay examines the scale and trend lines of Wolcot’s canon of works to that point, focusing on his production costs, wholesale and retail price structures, and the degree to which his profits were threatened by literary piracy and might have reasonably sought copyright protection. It finds that the same production strategy that had carried him to the apex of political notoriety and commercial success by 1790 also made it imperative for him sell his copyrights to his publisher and eventually sue over disagreements on conditions of their sale.

Download the article from SSRN at the link.

McMahon on "I Lost My Talk": Indian Residential Schools, Copyright, Archives, and Commissions of Inquiry

Thomas McMahon, Independent, has published 'I Lost My Talk': Indian Residential Schools, Copyright, Archives and Commissions of Inquiry. Here is the abstract.

People give statements to commissions of inquiry, courts, administrative tribunals, police and other government bodies. Who owns the copyright in those statements? What practical value is there in copyright ownership in those contexts? This paper examines in detail the copyright issues relating to the statements that survivors of Indian Residential Schools gave to Canada's Truth and Reconciliation Commission. As related background, the paper gives a detailed review of the Supreme Court of Canada's order to destroy statements given by survivors to the Independent Assessment Process. This paper examines copyright cases from Canada, England, the United States and Australia dealing with interviews generally, statements and indigenous peoples. This paper is one of a series by the author examining the many legal issues relating to Indian Residential Schools and the Indian Residential Schools Settlement Agreement.

Download the article from SSRN at the link.

NB:  Mr. McMahon was Executive Director of the Truth and Reconciliation Commission from October 2009 to July 2010, and then served as General Legal Counsel to the Commission for the remainder of the Commission’s mandate. McMahon was previously a long-time Department of Justice Canada lawyer. Before that, McMahon was Executive Secretary of the Manitoba Aboriginal Justice Inquiry

Pessach and Shur-Ofry on Copyright and the Holocaust @HujiLawOfficial

Guy Pessach and Michal Shur-Ofry, both of the Hebrew University of Jerusalem, Faculty of Law, are publishing Copyright and the Holocaust in the Yale Journal of Law and the Humanities. Here is the abstract.

This article explores the interface between copyright law and the Holocaust. The Holocaust’s duration and scope, its occurrence in midst of the twentieth century with photography and film technologies already available, and its setting at the heart of Europe, yielded countless documents, diaries, notes, memoirs, musical works, photographs, films, letters, and additional artifacts. On the victims’ part, many of those items — including secret archives comprised at various ghettos, music composed in concentration camps, and personal diaries — manifest an explicit act of real-time historical documentation for future generations. On the perpetrators’ side, some materials were produced as a result of organized documentation, others — such as Joseph Goebbels’ diaries or Hitler’s Mein Kampf — comprise records of prominent figures in the Nazi regime. Numerous Holocaust-related materials are still subject to copyright protection. Yet, the impact of copyright law on the memory of the Holocaust remains largely unexplored. This article engages in a first systematic exploration of the copyright-Holocaust interface and presents a twofold argument. First, we demonstrate that copyright law plays a heretofore-unnoticed role in shaping the collective memory of the Holocaust. Second, on a normative level, we argue that the prevalent narratives underlying copyright law, as well as ordinary copyright doctrines, do not comfortably apply to Holocaust-related materials, and that this state of affairs yields socially undesirable consequences. The latter include, inter alia, victims’ works created with the explicit goal of documenting the Holocaust that may remain in the file-drawer due to copyright concerns, as well as ordinary copyright protection applying to infamous Nazi materials, thus providing their owners with certain influence over the Holocaust’s narrative. By closely examining various case studies, we analyze the principal tensions between the copyright regime and the Holocaust and offer several concrete recommendations concerning the application of copyright law to Holocaust-related materials. On a more general note, our analysis sheds new light on copyright’s impact on collective and intergenerational memory.

Download the article from SSRN at the link.

Stern on Copyright as a Property Right? Authorial Perspectives in Eighteenth-Century England @ArsScripta @UCILawReview

Simon Stern, University of Toronto Faculty of Law, is publishing Copyright As a Property Right? Authorial Perspectives in Eighteenth-Century England in volume 8 of the UC Irvine Law Rev (2018). Here is the abstract.

In recent decades, various scholars have questioned the proposition that copyright must necessarily be rooted entirely in a property paradigm, and have sought to show how, over the last century and a half or so, that paradigm has been applied increasingly strictly and its logic has been extended with ever greater force. An examination of eighteenth-century sources shows that the conception of copyright as a form of property was neither the only, nor even the dominant, paradigm in circulation at the time. Moreover, when studying these sources, we must ask who is using the language of property: judges, members of the bookselling industry and their lawyers, writers and their counsel, or some combination of these? Building on earlier work that traces some aspects of the property framework as it developed in eighteenth-century British jurisprudence, I show that writers were far cagier about the language of property than were their colleagues in the bookselling industry, sometimes adopting this language equivocally, sometimes repudiating it emphatically. Discovering that the word “property” appears in eighteenth-century discussions of copyright mark the beginning, not the end, of an inquiry into its significance at this time.

Download the article from SSRN at the link.

Ginsburg on The 1593 Antonio Tempesta Map of Rome @ColumbiaLaw

Jane C. Ginsburg, Columbia Law School, is publishing The 1593 Antonio Tempesta Map of Rome in A History of IP in 50 Objects (Dan Hunter and Claudy Op Den Kamp, eds., Cambridge University Press, 2018). Here is the abstract.

This Essay examines Florentine painter and engraver Antonio Tempesta’s 1593 petition for a Papal printing privilege on his great bird’s-eye view Map of Rome. The arguments Tempesta made in support of his request for the exclusive rights to print, sell and control variations on his map evoke justifications spanning the full range of modern intellectual property rhetoric, from fear of unscrupulous competitors, to author-centric rationales. Invocations of labor and investment and unfair competition-based justifications were familiar – indeed ubiquitous – in Tempesta’s time, and still echo today. Long before the 1710 British Statute of Anne (vesting exclusive rights in authors), the precursor regime of printing privileges had well understood printing monopolies to be incentives to intellectual and financial investment. The pre-copyright system thus firmly established one of the philosophical pillars of modern copyright law. Tempesta’s petition, however, goes further than its antecedents with respect to the second pillar of modern copyright law, the natural rights of the author, a rationale that roots exclusive rights in personal creativity. Tempesta focused the rights on the creator, and equated creativity with his personal honor, thus foreshadowing a moral rights conception of copyright.

Download the essay from SSRN at the link.

Biggs on Jousting at Windmills: Cervantes and the Quixotic Fight for Authorial Control

Henry Parkman Biggs, Washington University, St. Louis, has published Jousting at Windmills: Cervantes and the Quixotic Fight for Authorial Control. Here is the abstract.

Achieving a fair balance between the rights of first and follow-on authors has long proved challenging. A less considered aspect of this tension involves the degree to which the first author may be creatively and productively compromised by the follow-on author and whether such interference diminishes creative production. A look at the early 17th century copyright landscape of Don Miguel de Cervantes proves instructive. Cervantes would dramatically change the second half of his masterpiece Don Quixote in terms both of plot and content because of an author who— perfectly legally—published a rival version of Don Quixote, Part II. The resultant war of words ultimately calls the very functioning of copyright’s protections into question: if greater creative production is ultimately the goal, is it purely financial gain that we believe engines that productivity? Or do we also believe protection of the author from creative interference plays a role in improving creative productivity? From a purity standpoint, are we concerned that without any rights of exclusion the author may write something substantially different than he might have without that interference? The copyright landscape and creative sparring that created the Don Quixote we read today provides an example of how deeply such interference can affect a final work.

The paper is not available for download.

New From Elgar Publishing: Niels van Dijk: Grounds of the Immaterial: A Conflict-Based Approach to Intellectual Rights @ElgarPublishing

New from Elgar Publishing: Niels van Dijk, Postdoctoral Fellow, Research Group on Law, Science, Technology, and Society, Vrije Universiteit Brussel, Belgium, Grounds of the Immaterial: A Conflict-Based Approach to Intellectual Rights (2017).

This book applies a novel conflict-based approach to the notions of ‘idea’, ‘concept’, ‘invention’ and ‘immateriality’ in the legal regime of intellectual property rights by turning to the adversarial legal practices in which they occur. In doing so, it provides extensive ethnographies of the courts and law firms, and tackles classical questions in legal doctrine about the immaterial nature of intellectual property rights from a thoroughly new perspective. The book follows the legal proceedings of disputes in patent, copyright and trademark law as they circulate from the sites of enterprises, through the offices of law firms, the court registry, the courtroom and the judge’s office, until they finally arrive at judgment. In this way, the central matters of a dispute are gradually transformed into immaterial works, inventions, or signs through the ceaseless ‘material’ operations of legal practices. This analysis sheds light on how seemingly abstract philosophical notions are rendered workable as concrete legal concepts with important consequences. Grounds of the Immaterial offers an inventive and refreshing take on intellectual property rights which will be valued by academics and students in philosophy, legal theory, legal anthropology and intellectual property.

 

McCutcheon on Some Observations Inspired by Kelley v. Chicago Park District

Jani McCutcheon, University of Western Australia Faculty of Law, is publishing Natural Causes: When Author Meets Nature in Copyright Law and Art. Some Observations Inspired by Kelley v Chicago Park District in volume 86 of the University of Cincinnati Law Review. Here is the abstract.

This article considers the interplay between author and nature in United States copyright law, using Kelley v Chicago Park District as a catalyst. In Kelley, the Seventh Circuit repudiated Chapman Kelley’s authorship of his enormous wildflower garden, Wildflower Works, partly on the basis that natural forces, rather than Kelley, were primarily responsible for the form of the work. The article has two broad purposes. The first is to critique the Seventh Circuit’s denial of Kelley’s authorship. The article argues that the Seventh Circuit misconceived Wildflower Works by conflating the work with the plants constituting it. This skewed its assessment of Kelley’s authorship, failing to give sufficient weight to his selection and arrangement effort. The second, and primary, purpose of the article is to explore the ramifications of Kelley for other contemporary art employing natural materials and natural forces, and to more deeply examine authorship doctrine in this context. Using a number of examples of artists who collaborate with nature, the article explains how natural forces can disturb authorship, but may not defeat it. The aims of the article are to fuel discussion, prompt reflection, and question some deeper assumptions about the relationship between nature and authorship in copyright law.

Download the article from SSRN at the link.

Lauriat on Literary and Dramatic Disputes in Shakepeare's Time @KCL_Law

Barbara Lauriat, King's College London, Dickson Poon School of Law, is publishing Literary and Dramatic Disputes in Shakespeare's Time in the Journal of International Dispute Settlement. Here is the abstract.

Disputes over literary works and plays — between one authors and another, one publisher and another, and between authors and publishers — have arisen since the ancient world. This is to be expected, since publishing poems and plays and producing theatrical performances can have significant economic, political, and emotional implications all at the same time. The nature and legal frameworks governing these disputes have changed dramatically over the centuries, however, particularly with regard to the proprietary rights involved. Though modern copyright law did not exist at the time, the Elizabethan age saw a high degree of professionalism of theatrical performance, book publishing, and dramatic authorship. When audiences are clamoring for novel entertainments, authorship is becoming a professional activity, and profits are to be made, customs and traditions inevitably arise — as do violations of those customs and traditions. This article discusses the framework of authorship and publishing in Shakespeare’s time and examines some of the disputes that arose and how they were resolved in a context where the legal remedies were limited. Methods from patronage to private guild “courts” to theft to public denunciation to outright violence were employed in attempts to maintain profitable businesses in publishing and theatre.

Download the article from SSRN at the link.

Spoo on Informal Publishing Norms and the Copyright Vacuum in Nineteenth-Century America @TULaw

Robert E. Spoo, University of Tulsa College of Law, has published Courtesy Paratexts: Informal Publishing Norms and the Copyright Vacuum in Nineteenth-Century America at 69 Stanford Law Review 637 (2017). Here is the abstract.

In response to the failure of U.S. copyright law to protect foreign authors, nineteenth-century American publishers evolved an informal practice called the “courtesy of the trade” as a way to mitigate the public goods problem posed by a large and ever-growing commons of foreign works. Trade courtesy was a shared strategy for regulating potentially destructive competition for these free resources, an informal arrangement among publishers to recognize each other’s wholly synthetic exclusive rights in otherwise unprotected writings and to pay foreign authors legally uncompelled remuneration for the resulting American editions. Courtesy was, in effect, a makeshift copyright regime grounded on unashamed trade collusion and community-based norms. This Article examines a particular feature of this informal system: the courtesy paratext. Typically appearing in the form of letters or statements by foreign authors, courtesy paratexts prefaced numerous American editions of foreign works published from the 1850s to the 1890s. These paratexts — supplements to the text proper — played a prohibitory role (not unlike the standard copyright notice) and also extolled the regulating and remunerating virtues of the courtesy system. Authorial paratexts continued to accompany texts well into the twentieth century — including, notably, American editions of James Joyce’s and J.R.R. Tolkien’s works — and enable us to observe the principles of courtesy as they operated less overtly to govern American publishers’ treatment of unprotected foreign works. A little-examined source for understanding the history of copyright law and informal publishing norms, courtesy paratexts offer insight into a form of private ordering that rendered the American public domain a paying commons.

Download the article from SSRN at the link.

Lauriat on Walter v. Lane (1900), Originality, and Copyright Protection Under UK Law @KCL_Law

Barbara Lauriat, King's College London, is publishing Walter v. Lane (1900) in Landmark Cases in Intellectual Property Law, chapter 7 (Jose Bellido, ed., Hart Publishing, 2017). Here is the abstract.

Originality is a cornerstone of contemporary copyright law; in order to receive protection, works must be ‘original’. One of the persistent challenges for the courts has been identifying when a copy of a work can itself be an original work. This question of protecting copies of other works arose before originality was even a statutory requirement. In the seminal case of Walter v. Lane (1900), the House of Lords decided that verbatim reports in The Times of speeches given by the politician Lord Rosebery were protected under the existing copyright legislation. Walter v. Lane is a seminal copyright case still cited in 21st-century judgments. But it was also a principled personal conflict, with the Bodley Head publisher John Lane (1854-1925) and Liberal editor Charles Geake (1867-1919) on one side and Charles Frederic Moberly Bell (1847-1911), the Managing Director of The Times, on the other. This feud caused embarrassment and upset to Lord Rosebery himself, a friend to both Moberly Bell and Geake, who found himself caught in the middle. This chapter examines the legal and personal context of Walter v. Lane and challenges other interpretations of its holding. It argues that the primary legacy of the case comes from the principle that the law should protect works that are products of editing, re-creation, preservation, conservation, or reconstruction where they are the result of intellectual skill and labour and there exists a public interest in the relevant acts of copying.

Download the essay from SSRN at the link.

Cross-posted to Media Law Prof Blog.

Gomez-Arostegui on Stationers v. Seymour, a Landmark Case in Intellectual Property Law (1677)

Tomas Gomez-Arostegui, Lewis & Clark Law School, is publishing Stationers v. Seymour (1677), Chapter 2, in Landmark Cases in Intellectual Property Law (Jose Bellido ed., Hart Publishing, 2017) (forthcoming). Here is the abstract.

This chapter discusses the role that Stationers v. Seymour, a case decided in the Court of Common Pleas in 1677, played in the recognition of common-law copyright in England in the 18th century. At issue in Seymour was the validity of the patent for printing almanacs, which King James I had granted in perpetuity to the Company of Stationers in 1616. The defendant John Seymour had printed an almanac without the license of the Company. The Court upheld the King’s right to grant the patent. During the great literary property debates of the mid-to-late 18th century, proponents of common-law copyrights often cited Seymour, alongside other printing-patent decisions, as evidence of a right in authors that antedated the Statute of Anne (1710). Many scholars today have questioned that reliance, arguing that the case was not at all probative of authors’ rights. This chapter revisits Seymour in light of numerous newly discovered manuscript reports and records, and it reveals that students of the case, particularly those who have studied the decision in the last 100 years, have often misunderstood the circumstances of the dispute. Ultimately, in light of its findings, this chapter argues that Seymour appears more probative of authorial rights than skeptics have previously supposed.

Download the essay from SSRN at the link.

Gomez-Arostegui on Patent and Copyright Exhaustion in England Circa 1800

Tomas Gomez-Arostegui, Lewis & Clark Law School, has published Patent and Copyright Exhaustion in England circa 1800. Here is the abstract.

In this Article, I examine and reject the claim, made by the United States Supreme Court, that the first-sale doctrine is a “common-law doctrine with an impeccable historic pedigree” that reaches as far back as the 17th century and that “makes no geographical distinctions.” The Supreme Court’s depiction of the common law formed an important basis for the Court’s recent copyright decision in Kirtsaeng v. John Wiley & Sons, Inc. (2013), and is likely to reappear and influence the Court in a patent case in which it has recently granted certiorari, Impression Products, Inc. v. Lexmark Int’l, Inc. At issue in Lexmark is whether gray-market goods embodying patented inventions can be imported or sold in the United States without the permission of the U.S. patent holder. Focusing on the state of English law during the long eighteenth century — that is to say, in the years before and just after Congress enacted the first copyright and patent statutes in 1790 — this Article demonstrates that although a domestic first-sale (or exhaustion) principle was evident in litigation in English courts, the common law did not recognize international exhaustion. On the contrary, the common law observed foreign legal boundaries and permitted right owners and their licensees to stop gray-market goods that embodied intangible rights.

Download the article from SSRN.

Said on a Transactional Theory of the Reader in Copyright Law @zahr_said

Zahr Said, University of Washington School of Law, has published A Transactional Theory of the Reader in Copyright Law at 102 Iowa Law Review 605 (2017). Here is the abstract.

Copyright doctrine requires judges and juries to engage in some form of experiencing or “reading” artistic works to determine whether these works have been infringed. Despite the central role that this reading — or viewing, or listening — plays in copyright disputes, copyright law lacks a robust theory of reading, and of the proper role for the “reader.” Reading matters in copyright cases, first, because many courts rely on the “ordinary observer” standard to determine infringement, which requires figuring out or assuming how an ordinary observer would read the works at issue. Second, most courts characterize a key part of infringement analysis as a matter for the jury, largely on the basis of the jury’s ability to apply the ordinary observer standard. But the ordinary observer concept has not received much attention as a feature — really, a bug — in copyright law. The ordinary observer standard is unclear both in theory and in practice, and it misaligns with how jurors (or judges, or ordinary people) actually experience works of art. As a result of persistent confusion about the role of the ordinary observer, many cases produce outcomes that distort copyright doctrine and create unfairness for litigants. This Article demonstrates the need in copyright law for a better understanding of how readers read works of art, and it proposes a theory of reading from the humanities. Louise Rosenblatt’s theory of transactional reading helps diagnose copyright law’s reading problem and offers support for several concrete prescriptions. Instead of assuming that reading is a one-size-fits-all process, a transactional theory suggests that reading depends on why one reads and who does the reading. A less simplistic, more dynamic, and phenomenologically informed model of reading could help reshape the ordinary observer standard. This Article proposes that copyright adopt four changes: (1) more work should be done by judges as a matter of law, thus narrowing the role of the jury in determining infringement; (2) expert evidence ought to play a greater role in copyright litigation; (3) the jury should be instructed to do a more informed kind of reading when it evaluates works of art for infringement; and (4) courts should explore the use of special verdicts to render jury deliberation more transparent. These changes will mitigate the problems of the ordinary observer standard, while capturing its strengths.

Download the article from SSRN at the link.

We Were Told There'd Be Cake @plagiarismtoday @dorfonlaw

Diane Klein, University of La Verne College of Law, discusses the interesting Case of the Copycat Cake here (from Plagiarism Today, cross-posted from Dorf on Law). Oh, there are intellectual property and business law issues, but there's also popular culture--lots of things to chew on. Sweet. 

Charles Dickens and Copyright Law @dkluft

Nice piece on Charles Dickens and copyright law, from David Kluft, at JDSupra.  Mr. Kluft traces the English author's interest in copyright back at least as far as The Pickwick Papers, which he dedicated to Thomas Talfourd, an early champion of copyright law.

More about Sir Thomas, lawyer, MP, and author, and the model for the character Tommy Traddles in David Copperfield, here.