Upcoming CLE Event at DePaul College of Law: Arts Law Colloquium: Art and Its Image: Perspective From Copyright, Trademark, and Cultural Property Law, October 9, 2024 @DePaulLaw

 Upcoming event: CLE - Arts Law Colloquium: Art and its Image: Perspectives from Copyright, Trademark, and Cultural Property Law, October 9, 2024, at Depaul College of Law:

Join CAMCHL and CIPLIT for “Arts Law Colloquium: Art and its Image: Perspectives from Copyright, Trademark, and Cultural Property Law” with Dr. Felicia Caponigri, Visiting Scholar, Chicago-Kent College of Law; Guest Scholar, IMT School for Advanced Studies Lucca. This event will be hybrid, both in person and online. Lunch will be provided for in-person guests. 1.0 hour CLE available for IL attendees.

More information available here.

Hsieh on "The Past Is Never Dead, It's Not Even a Trademark or Copyright": William Faulkner on the Elusive Boundary Between Intellectual Property Forms No One Ever Talks About @timhsiehiplaw @OCULAW

Timothy T. Hsieh, Oklahoma City University School of Law, has published "The Past Is Never Dead, It's Not Even a Trademark or Copyright": William Faulkner and The Elusive Boundary Between Intellectual Property Forms No One Talks About. Here is the abstract.

In the 2013 federal case of Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., et al., Case No. 3:12-cv-100-MPM-JMV (N.D. Miss. July 18, 2013), the Estate of William Faulkner sued Sony Pictures due to Woody Allen’s film Midnight in Paris having a character refer to the Faulkner quote “The past is never dead. It’s not even past” from Requiem for a Nun. In the suit, the Faulkner Estate alleged copyright infringement as well as trademark appropriation under The Lanham Act. A 2012 suit also occurred where The Faulkner Estate sued aerospace defense technology company Northrup Grumman for using the same quote in a 2011 advertisement placed in The Washington Post. See Faulkner Literary Rights LLC v Northrop Grumman. Corporation and the Washington Post Company, No 3:12-cv-732-HTW-LRA (S.D. Miss. Oct 26, 2012). Both cases not only dealt with trademark law, the copyright law doctrine of fair use and also de minimis usage of copyrighted material, but also the fascinating quandary of where one draws the line between a copyright and a trademark, e.g., when does a slogan or title become too long to trademark and proper to copyright and vice-versa, when does a copyrightable line of literary text become too short to copyright and proper to trademark? This boundary between a copyright and a trademark is one seldom analyzed by the legal literature out there, and almost overlooked or even dismissed as a simplistic concept not worth a deeper look. However, these cases involving the infamous Faulkner line compel the conclusion that the difference between a trademark and a copyright might be a much more complex determination to make. By analyzing these two cases, the history of cases differentiating a trademark and a copyright or the “trademark-copyright” boundary, and the potential usage of similar lines from Faulkner’s work, this paper will discuss how one of William Faulkner’s most enduring and timeless lines pushes the boundaries of a cutting-edge but little analyzed concept in intellectual property law.

Download the article from SSRN at the link.

Bonadio and Khan on Remix, Reuse, and Reggae: Creativity and Copyright in Jamaican Music @CityUniLondon

Enrico Bonadio, City University, London, City Law School, and Bryan Khan, University of the West Indies, have published Remix, Reuse and Reggae: Creativity and Copyright in Jamaican Music in Enrico Bonadio - Chen Zhu (eds.), Music Borrowing and Copyright Law (Enrico Bonadio and Chen Zhu eds., Hart Publishing 2023. Here is the abstract.

What makes the story of the rise of reggae music so fascinating are the circumstances in which the genre evolved. It seems to have been birthed by a cosmic alignment of the right social and cultural factors, rather than an anticipatable evolution of existing cultural institutions. Unlike neighbouring islands, which had hosted vibrant creole musical cultures since the nineteenth century, a formal music scene was not a major component of the Jamaican cultural landscape until the mid-twentieth century. And the contributions to global culture made by the Caribbean Island of Jamaica are remarkable given the country’s size. The country has birthed many musical genres which have made a mark on popular culture, including mento, ska, rocksteady, reggae, and dancehall, and these genres have in turn influenced a wide range of musical subcultures from American hip-hop to British drum and bass, and beyond. Against this broad history, this chapter explores the factors that facilitated the creative processes of Jamaican music scene, and its remarkable rise as global cultural force. Specifically, it provides a discussion on the history of Jamaican music, with a focus on the social and creative norms of remix and reuse. In doing so, the chapter features numerous examples of Jamaican songs.

The text of the essay is not available from SSRN.

Feigenson on Saying It With Pictures: Image and Text in Andy Warhol Foundation for the Visual Arts v. Goldsmith

Neal Feigenson, Ouinnipiac University School of Law, has published Say It With Pictures: Image and Text in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Here is the abstract.

The majority and dissenting opinions in the Supreme Court’s recent case on fair use, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, feature an unprecedented number of pictures: seventeen separate illustrations, almost all color photographs, and all but one embedded in the opinions instead of being relegated to an appendix. Images have appeared in SCOTUS opinions before, but never like this. This paper explores the functions and deeper significance of this outburst of visuality. In the two opinions, Justice Sotomayor’s for the majority and Justice Kagan’s dissent, the selections and sequences of the images tell very different stories of the dispute. The Justices also use their pictures to present their divergent theories of the case. No SCOTUS opinions have come close to using pictures this purposefully before, so it’s worth examining how the Justices did it here. Those pictures, of course, are surrounded by words. The pervasive picturing invites us, as no previous SCOTUS cases have, to think about the relationships between images and text in judicial opinions. Justices Sotomayor and Kagan verbally frame our viewing in contrasting ways. Not surprisingly, the words they use to refer to and describe the pictures they show underscore their opposing narratives and arguments. More than that, their words conceive of looking at pictures differently. Justice Sotomayor implies that we should regard her pictures simply as visual support for and authentication of her verbal claims. Justice Kagan, in contrast, exhorts us to really look at the pictures, a more active engagement that may make us more responsive to what pictures, perhaps especially pictures like Warhol’s, can do. Relatedly, their opinions reflect different ideas about pictorial meaning in general. For Justice Sotomayor, pictures just are (or, in this case, who what) they depict. This is characteristic of a naïve realist stance toward pictures. For Justice Kagan, pictorial meaning is a more complicated matter, emerging not only from what can be seen in the picture but also from the picture’s contexts, including expert commentary and other pictures. This matters for two reasons. First, while the Justices’ contrasting stances on pictorial meaning may follow from their opposing interpretations of the first fair use factor, the converse may also be true: They may approach fair use as they do in part because they have different ideas about pictorial meaning. Second, and more broadly, as pictures of all kinds play an ever greater role in legal proof and legal argument, getting decisions right depends on getting pictures right. What judges think pictures mean, and when it should even be part of their job to figure out what they mean, become increasingly important. Andy Warhol Foundation tells us something about this.

Download the article from SSRN at the link.

Narechania on Hamilton's Copyright and the Election of 1800 @tnarecha @BerkeleyLaw @WisLRev

Tejas N. Narechania, University of California, Berkeley, School of Law, is publishing Hamilton's Copyright and the Election of 1800 in the Wisconsin Law Review. Here is the abstract.

Copyright is, perhaps surprisingly, a regular fixture of electoral campaigns. Candidates deploy copyright to obscure prior policy statements. Local governments assert copyright over recordings of public meetings to protect incumbents. And campaign committees have used copyright to prevent counter-advertisements—ads which respond to (by embedding) their adversaries’ ads. Are these examples of illegal copyright infringement or protected political speech? The Supreme Court has balanced copyright and First Amendment interests by looking both to copyright law’s internal doctrinal limits (e.g., fair use) and to the “historical record.” But, in political contexts, the doctrine is sparing: Candidates for public office, weighing the pressures of campaigning against the costs of copyright litigation, tend to prefer self-censorship—undermining protections for political speech. The historical record may help. In this Essay, I highlight an episode—overlooked until now—that sheds new light on the speech-copyright equilibrium. Drawing on a mix of novel primary materials and secondary sources outside the legal literature, I tell the story of Alexander Hamilton’s secret, copyrighted pamphlet aimed at unseating John Adams from the top of the Federalist Party—secret, that is, until it leaked to Hamilton’s political opposition. Viewed in its entirety, this episode may reflect a shared, if contested, understanding—shared by both Hamilton and his opponents—that favors a full and fair discussion of such matters of public importance, even if copyright’s rules might otherwise restrain such speech. This political precedent may thus have implications for the contemporary controversies in which candidates deploy copyright (and related speech restraints) to squelch public scrutiny over their prior statements regarding, say, abortion rights. And so I conclude by describing how the public governance interests in such political speech should trump copyright’s restraints[.]

Download the article from SSRN at the link.

Essien on Interpretation of the Copyright's Public Domain in the European Union: A Criminal Discourse Analysis

Oswald Essien has published Interpretation of the Copyright’s Public Domain in the European Union; a Critical Discourse Analysis. Here is the abstract.

In the digital economy, the public domain is a sublime legal concept that fosters innovation and participatory culture. Despite its benefits, its sublimeness, particularly in this age of digitization, may pose a problem for users. This is due to the term's imprecise conception, static definition, and subdued representation. As a result, users have difficulty engaging with and understanding the status of public domain works. This article presents a contemporary public domain definition and conceptual model that can help users engage with the public domain and enrich academicians' vocabulary. To achieve precision, various methods for conceptualising the public domain have been used. These include boundary exploration, identification, grouping, and mapping works in the public domain. This method, while useful for identifying works that have never entered the public domain, excluded contents, and so on, does not interpret the public domain. As a result, this article employs critical discourse analysis to uncover the nature of the public domain (that is, use) while proposing a contemporary definition for the public domain. A contemporary definition of the copyright's public domain raises awareness of the concept's evolution, allowing for better protection and comprehension in the face of increased digitization.

Download the article from SSRN at the link.

Simon on Copyright, Moral Rights, and the Social Self @david__simon @Harvard_Law

David A. Simon, Harvard Law School, is publishing Copyright, Moral Rights, and the Social Self in volume 34 of the Yale Journal of Law and the Humanities (2023). Here is the abstract.

Moral rights—noneconomic rights that enable authors to control how their copyrighted work is divulged, attributed, modified, and withdrawn—are grounded on the Investment Theory: when an author creates a work, she invests part of her self in it. Because the work is an extension of the author’s “self,” special rights—not merely economic rights—are needed to protect it. Although intuitive, the rationale raises two central questions any moral rights theorist must address: how can an author invest her “self” in a work, and how might the law protect this investment? Moral rights scholars have not provided a satisfactory answer to the first question, making the second one difficult to address. This Article argues that an idea from social psychology might help answer the first question and shape how we respond to the second. Rather than some philosophical or abstract conception of the self, the authorial self the law protects is the social one: the self created and maintained through social interaction. On this account, moral rights are tools to present and manage aspects of this social self. They are limited “rights of impression management.” This framing enables two analytical moves. First, it precisifies what moral rights protect (the social self as externalized in the work) and the “harm” they protect against (potential inconsistencies in that self). Second, it provides a framework for discussing how moral rights ought to protect the self from harm, raising the ultimate question of whether and to what extent the Investment Theory is justified.

Download the article from SSRN at the link.

Jessica Silbey, Foreword to Copyright in the Street: An Oral History of Creative Processes in Street Art and Graffiti Subcultures @JSilbey

Silbey, Jessica, Boston University School of Law is publishing Foreward (to Copyright in the Street: An Oral History of Creative Processes in Street Art and Graffiti Subcultures by Enrico Bonadio) in Enrico Bonadio, Copyright in the Street: An Oral History of Creative Processes in Street Art and Graffiti Subcultures (Cambridge University Press, 2023). Here is the abstract.

Most of us think we are familiar with graffiti – lettering on trains or graphic images on walls that follow us as we walk by. But Enrico Bonadio’s new book on graffiti and street art opens a door to more complex and nuanced worlds of artists and their communities. The focus is on everyday creators of graffiti and street art. Built from nearly 100 interviews and hundreds of hours of observation, the book is filled with the voices of artists and vivid details of their plein air studios and interactions. Also present in the book is the author, who weaves the artists’ accounts of their practices with his voice and reactions as he experiences excitement and awe at the people he meets and art he witnesses being made. This is a special kind of book of scholarship; it is ethnographic and legal. And it is also colorful, funny, and enlightening. In this short foreward, I could not adequately summarize the book’s rich detail, and I would feel neglectful choosing only a few artists on which to focus. I will instead highlight some of the productive tensions around which the book is framed, a kind of stage-setting for the book’s unfolding. I will also situate the book within intellectual property scholarship more generally, celebrating its methodological and reformist perspective on the study of copyright and the evolving place of copyright law in the 21st century.

Download the foreword from SSRN at the link.

Yoo on What the Relationship Is Between Language and Thought: Linguistic Relativity and Its Limitations for Copyright @pennlaw

Christopher S. Yoo, University of Pennsylvania Law School; Annenberg School for Communication; School of Engineering and Applied Science; has published What Is the Relationship Between Language and Thought?: Linguistic Relativity and Its Implications for Copyright as University of Pennsylvania Public Law Research Paper No. 21-32. Here is the abstract.

To date, copyright scholarship has almost completely overlooked the linguistics and cognitive psychology literature exploring the connection between language and thought. An exploration of the two major strains of this literature, known as universal grammar (associated with Noam Chomsky) and linguistic relativity (centered around the Sapir-Whorf hypothesis), offers insights into the copyrightability of constructed languages and of the type of software packages at issue in Google v. Oracle recently decided by the Supreme Court. It turns to modularity theory as the key idea unifying the analysis of both languages and software in ways that suggest that the information filtering associated with the Sapir-Whorf hypothesis may be a general strategy for managing complex systems that is not restricted to language. It also examines Jerry Fodor’s application of modularity theory to cognition and his Language of Thought Hypothesis to see what they reveal about the idea-expression dichotomy.

Download the paper from SSRN at the link.

Safner on Honor Among Thieves: How 19th Century American Pirate Publishers Simulated Copyright Protection @ryansafner

Ryan Safner, Hood College, has published Honor Among Thieves: How 19th Century American Pirate Publishers Simulated Copyright Protection. Here is the abstract.

From 1790 to 1891, the United States prevented foreign authors from obtaining domestic copyright protection, implicitly subsidizing a domestic reprinting industry. With foreign works a “free” and unprotected resource, American publishers created a system of voluntary norms, known as “trade courtesy” to create and enforce psuedo- property rights in uncopyrighted foreign works, simulating the effects of legal copyright protection. This paper analyzes this system using the Bloomington School’s Institutional Analysis and Design (IAD) framework to under- stand its effectiveness, and pitfalls, in managing the commons of unprotected foreign works in 19th Century America.

Download the document from SSRN at the link.

Schwabach on Bringing the News from Ghent to Axanar: Fan Works and Copyright After Deckmyn and Subsequent Developments @UARKLaw

Aaron Schwabach, UALR William H. Bowen School of Law, is publishing Bringing the News from Ghent to Axanar: Fan Works and Copyright after Deckmyn and Subsequent Developments in volume 22 of the Texas Review of Entertainment & Sports Law (2021). Here is the abstract.

Fan works offer a lens through which to view the complex future of copyright law. Recent years have seen an explosion in academic interest in fan works, for reasons including the ongoing crisis in copyright law, changes in the way we consume copyrighted content, and increasing interest in fandom itself. Scholarship on fan works has continued to explore the key questions of fair use, parody, and First Amendment protection that allow fan works to exist yet fail to clearly delineate the boundaries of the legal twilight zone in which they reside and thrive. It has also continued to address the intersection between fanfic and gender and what this says about the gendered nature of intellectual property law. Much has also been written about the future of copyright in general, and of fan works in particular, often looking at fan works from new perspectives, including law and economics and the closely related vexing problem, for content owners, of how to address possible infringement without alienating the fanbase. This article looks at recent developments relating to fanfic first by looking at the historical context and current state of fan works, and next by looking at story elements and the ways in which they are and are not protected by copyright. The article devotes special attention to the related issues of cultural appropriation and reinterpretation, looking at Own Voices stories and street murals as a means of reclaiming a right to cultural property appropriated by others. The article then looks at the shrinking space for online fan works, with a look at two fairly recent decisions dealing with works based on existing popular culture franchises. One, Paramount Pictures Corp. v. Axanar Productions, deals with true fan art (a Star Trek fan film), while the other, Deckmyn v. Vandersteen, deals with hate speech masquerading as fan art. Ultimately the article concludes that there is both good and bad news for fans in the current situation. The good news is that the formerly frustratingly nebulous legal status of fan works is increasingly coming to be understood by fan work creators, courts, and content owners. The bad news is that the balance of powers in copyright generally, is increasingly shifting to large content owners.

Download the article from SSRN at the link.

Wilf on What We Talk About When We Talk About Fictional Characters (and Copyright) @UConnLaw

Steven Wilf, University of Connecticut School of Law, is publishing What We Talk About When We Talk About Fictional Characters (and Copyright) in volume 7 of Critical Analysis of Law (2020). Here is the abstract.

What do pictures want? Echoing the famous question posed by art historian W.J.T. Mitchell, this article interrogates that query within the skein of copyright law. The creation of a fictional character means seeing a possibly singular, inert image as having a past and a future, a panoply of emotional responses and, significantly, desires. Fictional characters are not copyrightable per se. Rather, protection stems from expression of those characters in copyrightable works. To determine whether fictional characters have reached the threshold of complexity worthy of copyright, courts inquire how well a character has been delineated. For nearly a century, copyright has relied upon traditional round character literary analysis which looks at a character’s distinguishable features from the audience’s point of view. Recently, flat protagonist criticism examines whether the character serves as a proper vehicle for the author’s story. This article takes another approach—asking what the image is trying to tell us about its own absences, needs, and emotional lacunae. Beyond establishing protection, we need to query what protagonists are unworthy of copyright. I argue that stereotypes should be held to stricter scrutiny as creating insufficiently desiring characters.

Download the article from SSRN at the link.

Davis on Noah Webster: America's First Copyright Lobbyist

David D. Davis, Copyright Clearance Center; Graham School, University of Chicago, is publishing Noah Webster, America’s First Copyright Lobbyist in the New England Journal of History. Here is the abstract.

In The Federalist #43, James Madison observed, regarding the patent and copyright clause in the U.S. Constitution, that in it "the public good fully coincides … with the claims of individuals." Noah Webster, creator of “An American Dictionary of the English Language” and the 'Blue-Backed speller’, was an early and important advocate of copyright in the young Republic. He was also a lobbyist in his own interest, i.e. for-profit commercial publishing. In his efforts to bring about copyright reform, he exemplified Madison's dictum, of the coincidence of public and private interest, and so provides us with an early example of how intellectual property laws come to be crafted, and revised, a process which continues to the present day.

Download the article from SSRN at the link.

Can Copyright Be Applied To Street Art and Graffiti? Interdisciplinary Panel, January 30, 5-7 PM, Middlesex University, London @enricobonadio @AislinnOC

CAN COPYRIGHT BE APPLIED TO STREET ART AND GRAFFITI?

JAN 30 5-7PM, CG76, MIDDLESEX UNIVERSITY LONDON

An interdisciplinary panel convened by Susan Hansen and Alberto Duman. It is free and open to the public. Please come along if you'll be in London!

Bookings can be made via Eventbrite: https://copyright-street-art-graffiti.eventbrite.co.uk

This panel marks the launch of the Cambridge Handbook of Copyright in Graffiti and Street Art, edited by Enrico Bonadio (City Law School). Speakers will discuss the legal tools available for street and graffiti artists to object to unauthorized exploitations of their work, and will debate whether, and to what extent, the street art and graffiti subcultures could benefit from copyright and moral rights protection.

PROGRAMME

17.00-17.10 Susan Hansen & Alberto Duman, Middlesex University

17.10-17.20 Enrico Bonadio, The City Law School

17.20-17.30 Pure Evil, London

17.30-17.45 Aislinn O’Connell, Royal Holloway

17.45-18.00 Shane Burke, Cardiff University

18.00-18.15 Paula Westenberger, Brunel University

18.15-18.30 Marc Mimler, Bournemouth University

18.30-19.00 Panel Discussion (Chair: Enrico Bonadio)

For more information, contact s.hansen@mdx.ac.uk

Barrett on Moral Rights and Immoral Artists @VicUniWgtn

Jonathan M. Barrett, Victoria University of Wellington, has published Moral Rights and Immoral Artists, a paper presented at the Asian Pacific Copyright Association Conference, Wellington, New Zealand, November 2019. Here is the abstract.

The word ‘moral’ used to denote upright behaviour and ‘moral’ to denote certain authorial rights (droit moral), are homonyms: the things signified by the same signifier are different. Because Germany’s moral rights equivalent is the personality right (Persönlichkeitsrecht), the German language does not permit the wordplay employed in the title. Nevertheless, this paper argues that personhood (Persönlichkeit), which is intertwined with the fundamental human rights principle of respect for equal and inherent human dignity, is the critical consideration for both understanding moral rights and engaging with the vexed issue of artworks created by immoral artists. This paper, which should be read as a sample of ongoing research, therefore approaches moral rights from a personhood perspective in order to construct analytical tools for engaging with immoral artists and their artworks.

Download the article from SSRN at the link.

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.