McFarlin on A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship @CumberlandLaw @TheCSUSA

Timothy McFarlin, Cumberland School of Law, is publishing A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship in volume 69 of the Journal of the Copyright Society of the U.S.A. Here is the abstract.

Did Mark Twain and the Atlantic infringe a copyright belonging to Mary Ann Cord in the story of how enslavers tore her family apart and how she was ultimately reunited with her youngest son? If so, might that long-ignored infringement be remedied today? In 1874, Cord told Twain the heartrending and astounding story of how her family had been ripped from her, and how she was liberated years later by her youngest, Henry, who had become a soldier for the Union. Twain proceeded to write Cord’s story down from memory, organizing the events chronologically, editing it, and describing how she told it. Twain published this manuscript in the Atlantic Monthly as “A True Story, Repeated Word for Word as I Heard It,” for money, under his name alone. Analyzing the questions above — Was this infringement? Could it still be remedied? — this project unfolds in two parts. This first part, “A Copyright Ignored,” focuses on the thorny threshold issue of copyrightability, arguing that Cord was indeed an author who had a common-law copyright in the words she spoke to Twain. The second part, “A Copyright Restored,” published in the Wisconsin Law Review, tackles the issues of infringement and remedy, arguing that Twain and the Atlantic likely did violate Cord’s rights and, further, that a claim by her descendants may still exist today. In this way, her case may set a vital precedent for righting other longstanding wrongs, particularly those against the Black community. Cord’s case could set precedent in other ways, as well. The same key which unlocks her rights can help open us to a deeper understanding of authorship in copyright law. The answer to whether Cord — who it’s said could neither read nor write and who never claimed to be an author — qualifies as one should tell us about more than just copyright’s past. Contrary to the views of many courts and scholars, I argue here that “authorship is as it does.” It’s not merely a self-conscious enterprise. It need not be limited to people like Twain, Austen, and Hemingway. It’s for everyone, and the law should recognize that.

Download the article from SSRN at the link.

Graber on Copyright Insight Out: A Legal Sociologist's Perspective @cbgraber

Christoph B. Graber, University of Zurich Faculty of Law, is publishing Copyright Insight Out: A Legal Sociologist's Perspective in Kritika: Essays on Intellectual Property, Volume 6 (Peters Drahos, et al., Cheltenham, UK: Edward Elgar, 2023) (forthcoming).

In my work as a researcher and teacher of legal sociology, copyright issues have always played an important role. I have been particularly interested in studying how copyright has changed under the influence of technology. The start of my career as a law professor in 1998 coincided with the invention of file sharing. In the years that followed, I used file sharing in my teaching to illustrate how digital technology challenged the effectiveness of government sanctions as a means of copyright enforcement. In my research, exploring the relationship between materiality and sociality, or how technological infrastructure and law interact, has become central. It focuses on the concept of normative expectations and the related question of how the law can regulate norm-building processes in a social context. Overall, the law and society perspective has proved useful in analysing the social impact of a new technology and in incorporating the insights gained into legal practice in order to make concrete suggestions for improvement.

Download the article from SSRN at the link.

Pike on the Abbott and Costello Routine: "Who's On First" and Copyright Law @NorthwesternLaw

George M. Pike, Northwestern University School of Law, has published Legal Issues: Abbott and Costello Explain Copyright Law. Here is the abstract.

But history and modern pop culture know Abbott and Costello for one thing: “Who’s on First”, the “patter” routine involving the nicknames of the members of a baseball team, The routine’s fame has caused it to be, “reprised, updated, alluded to and parodied innumerable times over the years.” Through 2015 and 2016 the routine was at the center of a copyright dispute over its use in the Broadway play, Hand to God. The dark comedy/drama involves a fundamentalist church’s “puppet club”, where young people use sock puppets to act out Biblical and religious stories. The playwright and producer used an abbreviated but recognizable version of the routine and did not obtain a license or permission to use it. The heirs and successors of Abbott and Costello sued for copyright infringement. In 2015, a trial court found the use of the routine to be a “Fair Use” under Title 17, Section 107 of the Copyright Act. In October, 2016, a Federal appeals court reversed the decision, determining that the use had not been a fair use. The Court’s opinion in the case of TCA Television Corp v. McCollum is being seen by some commentators as clarifying one copyright law’s more complicated issues, the Fair Use Doctrine’s concept of “transformative use”.

Download the article from SSRN at the link.