DOCSLIB.ORG

The Derivative Right, Or Why Copyright Law Protects Foxes Better Than Hedgehogs, 15 Vanderbilt Journal of Entertainment and Technology Law

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Derivative Right, Or Why Copyright Law Protects Foxes Better Than Hedgehogs, 15 Vanderbilt Journal of Entertainment and Technology Law Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2013 The eD rivative Right, or Why Copyright Law Protects Foxes Better than Hedgehogs Daniel J. Gervais Follow this and additional works at: https://scholarship.law.vanderbilt.edu/faculty-publications Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Daniel J. Gervais, The Derivative Right, or Why Copyright Law Protects Foxes Better than Hedgehogs, 15 Vanderbilt Journal of Entertainment and Technology Law. 820 (2013) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/833 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. R Retrieved from DiscoverArchive, Vanderbilt University’s Institutional Repository This work was originally published as Daniel Gervais, The derivative right, or why copyright law protects foxes better than hedgehogs, in 15 Vanderbilt Journal of Entertainment and Technologgy Law 820 2013. The Derivative Right, or Why Copyright Law Protects Foxes Better than Hedgehogs Daniel Gervais, Ph.D.* ABSTRACT The derivative right is at the very core of copyright theory. What can and cannot be reused to create a new work impacts freedom of expression but also impacts the value of the markets for works and their various “derivatives.” The derivative right includes forms of derivation and adaptation, such as making a movie from a novel or translating a book. It also covers what this Article refers to as penumbral derivatives, which the US Copyright Act captures using the phrase “based upon” with respect to preexisting works. This leads to indeterminacy about the scope of the derivative right, which may have chilling effects on nonprofessional Internet users who may not have the time, desire, or resources to consider or negotiate copyright rights. This Article acknowledges that derivation often includes reproduction of all or part of a preexisting work. How is the derivative right different from the right of reproduction? That is the main question tackled in this Article. Using the Berne Convention negotiating history, as well as US, British, French, and German jurisprudence, this Article suggests that the derivative right has a different normative target than the right of reproduction, in spite of their considerable overlap. The Article enunciates six mobilizing principles, which it then proceeds to * Ph.D. Professor of Law, Vanderbilt University Law School. Director, Vanderbilt Intellectual Property Program. The Author is extremely grateful to Professors Abraham Drassinower, Jane C. Ginsburg, Paul Goldstein, Tyler Ochoa, Pamela Samuelson, and William Patry for their comments on earlier versions of this Article. All errors and omissions are the Author’s. I also wish to thank Adriane Porcin (Visiting Scholar, Vanderbilt University Law School), and Kathryn Baker, Lauren Gregory, and Colleen Mallea (three J.D. candidates, Vanderbilt University Law School) for their useful assistance in preparing this Article, and the excellent work done by the VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW, in particular the Editor-in-Chief, Shane D. Valenzi, and the Executive Editor, Michael F. Dearington. The title refers to Hoffman LJ’s quip that “Copyright law protects foxes better than hedgehogs” in Designer Guild Ltd. v. Russell Williams (Textiles) Ltd., [2000] UKHL 58, [2001] 1 W.L.R. 2416 (appeal taken from Eng.). It is explained later in the Article. 785 786 VANDERBILT J. OF ENT. AND TECH. LAW [Vol. 15:4:785 demonstrate. The Article also argues and demonstrates in particular that there is a hard line that divides fundamental changes that are noninfringing under a proper derivative right analysis (in most cases because the idea, not the expression, is appropriated), and those that are noninfringing as transformative fair uses. Finally, the Article strikes a note of caution specific to appropriation art. TABLE OF CONTENTS I. THE DERIVATIVE RIGHT IN CONTEXT ................................. 792 A. Emergence of the Derivative Right in the US Copyright Act ............................................................................... 792 B. Contextualizing the Derivative Right in Copyright Policy ........................................................................... 797 C. Known Quantities ......................................................... 801 II. PROPOSED PRINCIPLES ...................................................... 805 A. Definitional Principles ................................................. 805 B. Cautionary Principles................................................... 808 III. THE RIGHT TO MAKE DERIVATIVE WORKS FROM AN INTERNATIONAL PERSPECTIVE ........................................... 810 A. The Emergence of the Derivative Right Internationally 811 B. The Derivative Right in the Berne Convention .............. 816 C. Derivative Works in the Current Text of the Berne Convention ................................................................... 820 IV. THE DERIVATIVE RIGHT IN MAJOR EUROPEAN LEGAL SYSTEMS ........................................................................... 822 A. France .......................................................................... 822 B. Germany ....................................................................... 828 C. United Kingdom ........................................................... 831 D. European Lessons ......................................................... 834 V. PULLING IT ALL TOGETHER ............................................... 835 A. Speech Considerations .................................................. 836 B. Reproduction versus Derivation .................................... 839 C. Derivation as Art .......................................................... 848 VI. CONCLUSION ..................................................................... 854 The lumpish and rather capacious notion of “derivative work,” added to the US Copyright Act in 1976, is at the very heart of copyright theory and practice.1 Yet thirty-five years after its injection 1. See 17 U.S.C. § 101 (2006) (defining “derivative work”); § 103 (making “derivative works” copyrightable subject matter); § 106(2) (giving copyright owners the right “to prepare derivative works”). The Author will say more on the importance of the notion in the text preceding Part I. 2013] THE DERIVATIVE RIGHT 787 in the statute, serious doubts remain about its scope and purpose.2 If our understanding of this notion is nebulous, it is not because the derivative right does not matter—quite the opposite: The scope of the derivative right directly impacts the range of lawful reuses of a work or, viewed from across the fence, reuses that a copyright owner can prohibit.3 This includes several types of online uses and, most notably, user-generated content (UGC).4 As such, this Article builds on work previously published in the Vanderbilt Journal of Entertainment and Technology Law.5 Not surprising given the importance of the derivative right, a substantive debate on its purpose and scope has been ongoing in both courts and scholarly literature since at least the early 1980s.6 This debate has reached a new level of acuteness with remixes, mash-ups, and more generally the transition from a professional one-to-many entertainment infrastructure to a many-to-many—and in large measure amateur—environment in which financial incentives are often not a significant motivation for creation.7 Indeterminacy about the scope of the derivative right may have more perceptible chilling effects on nonprofessional Internet users because they may not have the time, desire, or resources to consider or negotiate copyright 2. After years of tergiversations, we are no closer to a workable understanding. As William Patry noted, “regrettably the understanding of derivative works is fast approaching incomprehensibility.” WILLIAM F. PATRY, PATRY ON COPYRIGHT § 3.46 (2012). Incomprehensible, perhaps, yet it is also fascinating both intellectually and as a matter of policy for user-generated content (UGC), appropriation art, and other new forms of cultural expression. 3. Under 17 U.S.C. § 106(2), a copyright owner can prohibit the making of derivative works, which the statute defines in part as works “based upon” the author’s work. 17 U.S.C. § 101. 4. See Daniel Gervais, The Tangled Web of UGC: Making Copyright Sense of User-Generated Content, 11 VAND. J. ENT. & TECH. L. 841, 842–43 (2009). 5. See id. 6. See, e.g., Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007) (holding unauthorized sound recordings of music for karaoke infringed); Mulcahy v. Cheetah Learning LLC, 386 F.3d 849 (8th Cir. 2004) (reversing summary judgment and remanding for analysis of derivative-work claim in case involving condensation of test materials); Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132 (2d Cir. 1998); Radji v. Khakbaz, 607 F. Supp. 1296 (D.D.C. 1985) (holding unauthorized translation of substantial excerpts from plaintiff’s book infringed the derivative right); see also PAUL GOLDSTEIN, GOLDSTEIN ON COPYRIGHT § 7.3 (3d ed. 2012); Naomi Abe Voegtli, Rethinking Derivative Rights, 63 BROOK. L. REV. 1213, 1267 (1997) (proposing
Load more

Recommended publications
  • ROGERS V. KOONS -A VICTORY a Different Medium
    This conclusion applies, the Court said, even though the sculpture was in ROGERS V. KOONS -A VICTORY a different medium. Koons' sculpture was based upon Rogers' pre-exlstlnq copyrighted photograph - and was OVER "APPROPRIATION" OF therefore a "derivative work" under the Copyright Act. The Act specifically provides that copyright protection in­ IMAGES cludes the exclusive right to create and license derivative works based upon the copyrighted work. "In By Michael D. Remer, ASMP Legal Counsel copyright law:' said the Court, "the medium ls not the message, and a t is basic law that when a photographer creates an change In medium does not preclude original image, that image is protected by copyright infringementII from the moment the shutter clicks. The copyright is I (It is worth.noting that in support of this owned by the photographer (assuming that it has not conclusion, the Court cited a 1924 been given up under work for hire or an all rights assign­ case which held that "a piece of statuary may be infringed by a picture ment). And unauthorized use of the image infringes the of the statuary:' The KQm court ob­ photographer's copyright. served that it was equally true that a SCUlpture may infringe a Clear enough - but apparently not to this "colorized" version of the photographer'S copyright. But those people who feel justified in "ap­ Rogers photograph. When Scanlon photographers also should under­ propriating" a photographer's saw the newspaper photograph, he stand the lesson of the 1924case- an copyrighted image for use in their art realized that it was not Rogers' unauthorized photograph of work In another medium.
    [Show full text]
  • The 'Transformation' of the Copyright Fair Use Test
    The 'Transformation' Of The Copyright Fair Use Test Law360, New York (December 19, 2014, 10:09 AM ET) -- The purpose of United States copyright law is “[t]o promote the Progress of Science and the useful Arts.” U.S. Const., Art. I, § 8, cl. 8. This purpose is achieved not only through protection of copyrighted works, but also by allowing “some opportunity for fair use of copyrighted materials.” Campbell v. Acuff-Rose Music Inc., 510 U.S. 569, 575 (1994). Accordingly, the current Copyright Act includes a defense that insulates the “fair use of a copyrighted work” for “purposes such as criticism, comment, news reporting, teaching ... scholarship, or research.” 17 U.S.C. § 107. The act identifies four nonexclusive factors that “shall” be considered in evaluating fair use: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Id. While the factors have remained largely unchanged since the adoption of the current act, the manner in which courts apply them has been evolving. In particular, some courts have placed substantial emphasis on a single consideration — whether a new work is “transformative” of an older work — in evaluating fair use. This singularity of focus, on a factor not expressly referenced in the Copyright Act, has prompted others to push back and insist upon an analysis that is arguably more faithful to the actual language of the statute.
    [Show full text]
  • Lexis Practice Advisor Intellectual Property & Technology Determining
    Lexis Practice Advisor® is a comprehensive practical guidance resource for attorneys who handle transactional matters, including “how to” information, model forms and on point cases, codes and legal analysis. The Intellectual Property & Technology offering contains access to a unique collection of expertly authored content, continuously updated to help you stay up to speed on leading practice trends. The following is a practical guidance excerpt from the topic Copyright Ownership & Registration. Lexis Practice Advisor Intellectual Property & Technology Determining Copyright Ownership by Jeremy S. Goldman, Frankfurt Kurnit Klein & Selz PC Jeremy S. Goldman is counsel in the Litigation Group of Frankfurt Kurnit Klein & Selz PC, where he focuses on intellectual property, entertainment and privacy law for clients in the media, entertainment, advertising and technology spaces. Overview Copyright protection is given to authors of original and expressive works , including literary, musical, dramatic, sculptural, and certain other categories of works, which are fixed in a tangible medium. Although the author of a copyrighted work is generally also the creator of the work, there are exceptions to this, such as works made for hire and works jointly authored by more than one person. A copyright in a derivative work protects only the new and original elements added to preexisting work; the author of the derivative work has no ownership interest in the preexisting work. The ownership of a copyright may be transferred or assigned, in whole or in part. That is, each of the exclusive rights afforded a copyright owner under the Copyright Act may be owned and transferred separately. To the extent there are conflicting transfers, the prior transferee will have priority over any subsequent transferee so long as the transfer is recorded within one month of execution (for transfers made in the United States), or at any time prior to recordation of the transfer to a subsequent transferee.
    [Show full text]
  • An Overview of Legal Protection for Fictional Characters: Balancing Public and Private Interests Amanda Schreyer
    Cybaris® Volume 6 | Issue 1 Article 3 2015 An Overview of Legal Protection for Fictional Characters: Balancing Public and Private Interests Amanda Schreyer Follow this and additional works at: http://open.mitchellhamline.edu/cybaris Part of the Intellectual Property Law Commons Recommended Citation Schreyer, Amanda (2015) "An Overview of Legal Protection for Fictional Characters: Balancing Public and Private Interests," Cybaris®: Vol. 6: Iss. 1, Article 3. Available at: http://open.mitchellhamline.edu/cybaris/vol6/iss1/3 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in Cybaris® by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Schreyer: An Overview of Legal Protection for Fictional Characters: Balanci Published by Mitchell Hamline Open Access, 2015 1 Cybaris®, Vol. 6, Iss. 1 [2015], Art. 3 AN OVERVIEW OF LEGAL PROTECTION FOR FICTIONAL CHARACTERS: BALANCING PUBLIC AND PRIVATE INTERESTS † AMANDA SCHREYER I. Fictional Characters and the Law .............................................. 52! II. Legal Basis for Protecting Characters ...................................... 53! III. Copyright Protection of Characters ........................................ 57! A. Literary Characters Versus Visual Characters ............... 60! B. Component Parts of Characters Can Be Separately Copyrightable ................................................................
    [Show full text]
  • Law, Art, and the Killing Jar
    Digital Commons @ Touro Law Center Scholarly Works Faculty Scholarship 1993 Law, Art, And The Killing Jar Louise Harmon Touro Law Center, [email protected] Follow this and additional works at: https://digitalcommons.tourolaw.edu/scholarlyworks Part of the Entertainment, Arts, and Sports Law Commons, and the Other Law Commons Recommended Citation 79 Iowa L. Rev. 367 (1993) This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Touro Law Center. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. Law, Art, and the Killing Jart Louise Harnon* Most people think of the law as serious business: the business of keeping the peace, protecting property, regulating commerce, allocating risks, and creating families.' The principal movers and shakers of the law work from dawn to dusk, although they often have agents who work at night. 2 Their business is about the outer world and how we treat each other during the day. Sometimes the law worries about our inner life when determining whether a contract was made5 or what might have prompted a murder,4 but usually the emphasis in the law is on our external conduct and how we wheel and deal with each other. The law turns away from the self; it does not engage in the business of introspection or revelation. t©1994 Louise Harmon *Professor of Law, Jacob D. Fuchsberg Law Center, Touro College. Many thanks to Christine Vincent for her excellent research assistance and to Charles B.
    [Show full text]
  • Computer Software Derivative Works: the Calm Before the Storm
    COMPUTER SOFTWARE DERIVATIVE WORKS: THE CALM BEFORE THE STORM Natalie Heineman* Cite as 8 J. HIGH TECH. L. 235 (2008) I. Introduction Every generation believes they live in the most exciting times of continued social and technological advancement. Since the advent of computers and the internet, however, the present is a time in which progress seems unrivaled. While the law races to catch up with technology, the area of law requiring the fastest runners may be that of computer software derivative works under current copyright law. An author’s exclusive right to prepare derivative works is particularly challenged in the software environment where innovation often involves references to and incorporation of other preexisting works. Without definitive cases on point or specifically tailored legislation to guide the analysis, however, the scope of this note is simply to help define the issues presented, thereby drawing attention to what looks to be the calm before the impending storm. This note considers the challenge posed by computer software derivative works. The note first discusses the definition of derivative works under the current Copyright Act, and analyzes how the courts have interpreted derivative works in analogous contexts. Because defining a derivative work necessarily considers whether it has infringed the underlying work, the note then discusses how the courts make infringement analyses. The infringement analysis focuses primarily on the abstraction-filtration method as it has developed in computer software cases. Finally, the note considers trends in cases and legislation that suggest an increasingly broad interpretation of derivative rights. This section emphasizes the Open Source movement which will no doubt have a significant impact on the future of computer software derivative works.
    [Show full text]
  • (Mis)Appropriation Art: Transformation and Attribution in the Fair Use Doctrine 15 CHI.-KENT J
    (Mis)appropriation Art: Transformation and Attribution in the Fair Use Doctrine 15 CHI.-KENT J. INTELL. PROP. (forthcoming 2015) John Carl Zwisler∗ Abstract Since the adoption of transformation by the Supreme Court, the fair use doctrine has continued to judicially expand. The reliance on transformation has led judges to subjectively critique and analyze artworks in order to make a legal decision. While the transformation precedent is dominant among the circuits, it is not followed by all and gives an advantage to an appropriation artist claiming fair use of another’s copyrighted work. Transformation should no longer be a requirement in a fair use analysis concerning appropriation art, as it requires subjective interpretation of an artist’s work. Instead, the emphasis should be on the overall market effect the secondary use had on the market for the original with consideration given to how attribution to the original author aids in the fair use test. ∗ B.M., 2010 Berklee College of Music; J.D. candidate, 2016, Northeastern University School of Law. I would like to thank Professor Kara Swanson for her support and comments on early versions of this article as well as Nathanael Karl Harrison for our many discussions on the subject. I would also like to thank my parents, Yashira Agosto, and Nicholas Fede for their comments and support during the writing of this article. WORKING DRAFT—DO NOT CITE TO THIS ARTICLE 1 Table of Contents Part I Introduction ....................................................................................................................................... 3 Part II A History of Fair Use ...................................................................................................................... 8 A. Supplanting the Market of the Original Work ..................................................................................... 8 B. Four Factors Codified .........................................................................................................................
    [Show full text]
  • Internet Safe Harbors and the Transformation of Copyright Law
    Internet Safe Harbors and the Transformation of Copyright Law Matthew Sag∗ ABSTRACT This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998 Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (“DMCA”). The Internet safe harbors and the associated system of notice-and- takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial Internet platforms made in the shadow of those safe harbors. These “DMCA Plus” agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software. The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. Substantive copyright law is not necessarily irrelevant online, but its relevance is not only indirect, but contingent. The attenuated relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation.
    [Show full text]
  • Why the U.K. Adaptation Right Is Superior to the U.S. Derivative Work Right Patrick R
    Nebraska Law Review Volume 92 | Issue 4 Article 5 2014 Why the U.K. Adaptation Right Is Superior to the U.S. Derivative Work Right Patrick R. Goold University of California, Berkeley, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Patrick R. Goold, Why the U.K. Adaptation Right Is Superior to the U.S. Derivative Work Right, 92 Neb. L. Rev. (2014) Available at: https://digitalcommons.unl.edu/nlr/vol92/iss4/5 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Patrick R. Goold* Why the U.K. Adaptation Right Is Superior to the U.S. Derivative Work Right TABLE OF CONTENTS I. History of the Derivative Work Right in Anglo- American Copyright ................................... 849 A. Anglo-American Copyright During the Eighteenth and Nineteenth Centuries ......................... 850 B. Derivative Works in Twentieth Century U.S. Copyright ......................................... 856 1. The 1909 Copyright Act........................ 856 2. From 1909 to 1976 ............................ 858 a. Motion Pictures ............................ 860 b. Radio Broadcasting ........................ 862 c. Cable Television ........................... 865 3. The Copyright Act 1976........................ 866 C. Derivative Works in Twentieth Century U.K. Copyright ......................................... 868 1. The 1911 Act and the Gramophone Case ....... 869 2. The Copyright Act 1956 and the Copyright, Designs, and Patents Act 1988 ................. 871 D. Summary ......................................... 874 II. Modern Doctrine of the Derivative Work Right in Anglo- American Copyright ................................... 874 A. The Right of Reproduction ........................
    [Show full text]
  • Campbell As Fair Use Blueprint?
    05 - Leval.docx (Do Not Delete) 6/3/2015 1:25 PM CAMPBELL AS FAIR USE BLUEPRINT? Pierre N. Leval* Friends, copyright geeks, I come not to bury Campbell,1 but to praise it. I might reasonably be considered a biased critic as Campbell took a number of suggestions from an article I wrote.2 Biased or not, I submit Campbell is a beautifully reasoned opinion, which has demonstrated in its twenty-one years that it provides a healthy framework for fair use analysis. That framework promotes the overall objectives of copyright; it protects the interests of rights holders; and it guards against putting “manacles upon science.”3 This is not to say that every case decided under Campbell has been indisputably correct. But disagreement with some decisions of lower courts is not a condemnation of Campbell’s blueprint. Furthermore, fair use decisions will often involve difficult appraisals, susceptible to reasonable disagreement. Nor is it surprising to find inconsistency in lower court opinions. Copyright cases come infrequently, especially those with fair use questions. Many judges are often confronting the complexities of fair use for the first time, and may be quick to reach out for what look like easy handholds that are often based on errant dicta. I. PRE-CAMPBELL To appreciate what Campbell did for us, we should look at the law of fair use prior to Campbell. It was a mess, and it gave virtually no guidance. For nearly 300 years, courts had acknowledged a need for doctrine that would allow copying in some circumstances. There developed a widely accepted view that copying in certain types of undertakings—criticism, parody, book reviews, news reporting, political * Judge, United States Court of Appeals for the Second Circuit.
    [Show full text]
  • US Copyright Law After GATT
    Loyola of Los Angeles Entertainment Law Review Volume 16 Number 1 Article 1 6-1-1995 U.S. Copyright Law After GATT: Why a New Chapter Eleven Means Bankruptcy fo Bootleggers Jerry D. Brown Follow this and additional works at: https://digitalcommons.lmu.edu/elr Part of the Law Commons Recommended Citation Jerry D. Brown, U.S. Copyright Law After GATT: Why a New Chapter Eleven Means Bankruptcy fo Bootleggers, 16 Loy. L.A. Ent. L. Rev. 1 (1995). Available at: https://digitalcommons.lmu.edu/elr/vol16/iss1/1 This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Entertainment Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. ARTICLES U.S. COPYRIGHT LAW AFTER GATT: WHY A NEW CHAPTER ELEVEN MEANS BANKRUPTCY FOR BOOTLEGGERS Jerry D. Brown* "I am a bootlegger; bootleggin' ain't no good no more." -Blind Teddy Darby' I. INTRODUCTION On December 8, 1994, President Clinton signed into law House Bill 5110, the GATT (General Agreement on Tariffs and Trade) Implementation Act of 1994 . By passing the GATT Implementation Act before the end of 1994, the United States joined 123 countries in forming the World Trade Organization ("WTO"). The WTO is a multilateral trade organization established by GATT 1994, wherein member countries consent to minimum standards of rights, protection and trade regulation. Complying with these standards required the United States to amend existing law in several areas concerning trade and commerce, including areas that regulate intellectual property rights.' * B.A., University of Oklahoma, 1992; J.D., Oklahoma City University School of Law, 1995.
    [Show full text]
  • Copyright Problems in Post-Modern Art
    DePaul Journal of Art, Technology & Intellectual Property Law Volume 5 Issue 1 Winter 1994/Spring 1995 Article 5 Copyright Problems in Post-Modern Art Lori Petruzzelli Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Lori Petruzzelli, Copyright Problems in Post-Modern Art, 5 DePaul J. Art, Tech. & Intell. Prop. L. 115 (1995) Available at: https://via.library.depaul.edu/jatip/vol5/iss1/5 This Case Notes and Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Petruzzelli: Copyright Problems in Post-Modern Art COPYRIGHT PROBLEMS IN POST-MODERN ART Lori Petruzzellr I. INTRODUCTION Copyright law establishes a framework to protect artistic creation by providing a system of economic incentives. By granting an artist property rights in her work, the Copyright Act fosters the production of a wide array of creative works from many different genres.' To this end, the Copyright Act does not define art, rather it draws lines and sets forth flexible categories of works which are eligible for protection. There are no qualitative tests, simply a low threshold of origi- nality and a requirement that the work be an expression, not an idea.2 Even with this broad framework and flexible approach, the Copyright Act fails to extend protection to many movements within post-modem art. Post-modemism rebels against the traditional norms of originality, ownership, and expression that define copyright protection.
    [Show full text]