The Next Great Copyright Act, or a New Great Copyright Agency?

In March 2013, U.S. Register of Copyrights Maria Pallante gave the Horace S. Manges Lecture at Columbia Law School. Settling into her role as Register, she compared some of the issues of the day to issues that had faced previous Registers, and urged Congress, the copyright bar, the creative community and the public at large to consider beginning work on “The Next Great Copyright Act.” Now, after more than a year of comprehensive review hearings before the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet, and simultaneous inquiries into various copyright topics by the U.S. Patent and Trademark Office (USPTO) and by the Copyright Office itself, it is possible to explore whether a “Next Great Copyright Act” is the best approach to address the challenges facing authors and their audiences, or whether other bold approaches, such as a restructuring of the Copyright Office, might better serve the public interest. As an advocate for artists and authors, I believe that the Copyright Act must first and foremost serve the public interest, which, as Register Pallante aptly noted in her remarks, is inextricably linked with promoting the well-being of authors and artists. Put simply, if the public believes that art matters, then its authors matter. Consequently, a Copyright Act that encourages and empowers artists and authors in the creation and dissemination of works of authorship to the public best serves the public interest. These principles have been at the heart of copyright law in the United States since the beginning. Because copyright law is now more than ever also intertwined with the advancement of new technologies, we also cannot ignore the need to ensure a Copyright Act that is as “future proof’ as possible. This suggests that a nimble approach to addressing the issues of the day is needed

Copyright\u27s Lost Art of Substantial Similarity

Three copyright doctrines focus more than any others on the contributions of authors to visual artworks: originality, substantial similarity, and fair use. Questions regarding the aesthetics of works of authorship filter into judicial determinations under each of these doctrines. This Article comments on a trend among courts hearing visual arts cases to de-emphasize substantial similarity analyses and shift infringement determinations almost entirely to the fair use defense. The trend has troubling procedural fairness consequences. Without a full evidentiary record about the artworks they encounter in infringement cases, courts’ ability to properly evaluate whether the use of appropriated material in a second work is justified, or whether expression has been taken from the first work for some other (infringing) purpose, is compromised. If courts fail to properly understand works because they do not fully analyze basic infringement claims, it can also affect later users and owners of artworks. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith illustrates the conflicts appellate courts face when they are forced to analyze cases solely through the lens of fair use. This Article embraces Warhol’s majority opinion but suggests that the dissent’s concerns about judicial reluctance to engage with and understand creative works aesthetically are not entirely misplaced. Such engagement should happen earlier in the infringement inquiry, however—not merely as part of a fair use analysis. This Article expands the 2022 Meyer Lecture delivered by this Author shortly after oral arguments concluded in the Warhol litigation. It urges that to ensure the best outcomes for all artists, courts should apply a procedurally conscious approach to analyzing copyright infringement cases involving visual artworks. Specifically, district courts should establish a solid record that the first work is original; then inquire whether the second work infringes, applying the test for substantial similarity. Only if they find infringement should courts consider the affirmative defense of fair use. Following the proper procedural path is crucial to balancing all parties’ interests—particularly when the works of two artists are involved. Allowing both the first and the second artists equal voice in representing the originality of their contributions is necessary to ensure an adequate factual record in copyright litigation. Courts require this record to anticipate the impact of their rulings on future litigants and the art world at large. These goals are consistent with copyright jurisprudence, which encourages creativity and original contributions to the creative lexicon

Visualizing Copyright Law: Lessons from Conceptual Artists

Copyright law does not require an object to be “art” to be protectable, except in one respect: copyright protection does not extend to useful articles. As a result, courts engage in analysis strikingly similar to that of conceptual artists visualizing art. Copyright law has an uneasy relationship with conceptual art because the Copyright Act also requires works to be original and fixed in a tangible medium. Requirements that have led some to conclude that the kind of art where “the idea or concept is the most important aspect of the work” should not be protectable by copyright. This article examines the Readymades of Marcel Duchamp, the Wall Drawings of Sol Lewitt, Felix Gonzalez-Torres’s Candy works, and comments on the work of several other artists to explore how art interacts with and in some ways informs copyright law. I suggest conceptual art has anticipated and posed litmus-test problems for copyright law. Moreover, the copyright conundrums suggested by conceptual artists are not unique to that art form. Photographers like Ansel Adams, who championed the conceptual nature of photography, practice an art form protected by copyright since the late 19th century. Understanding their work can serve as a bridge to appreciating conceptual art as well. This Essay celebrates that urinals, Brillo Boxes, bananas duct taped to walls, hundreds of pounds of candy spilled on the floor, and even the revocation of all aesthetic intentions can be art. It demonstrates that we can learn something of value to copyright law if we stop worrying and learn to love art

Intellectual Property: The Role of Congress and Executive Agencies in 21st Century IP Regimes

The following is a transcript of a 2015 Federalist Society panel entitled Intellectual Property: The Role of Congress and Executive Agencies in 21st Century IP Regimes. The panel originally occurred on November 14, 2015, during the National Lawyers Convention in Washington, D.C. The panelists were: Davis S. Olson, Associate Professor of Law, Boston College Law School; Sandra Aistars, Clinical Professor, George Mason School of Law and Senior Scholar and Director, Copyright Policy & Research Center for the Protection of Intellectual Property; John Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law; and Arti K. Rai, Elvin R. Latty Professor of Law and Co-Director of the Duke Law Center for Innovation Policy, Duke University School of Law. The moderator was the Honorable Thomas B. Griffith of the U.S. Court of Appeals, D.C. Circuit

Prevention of skin reactions due to teletherapy in women with breast cancer: a comprehensive review

One of the possible courses of cancer treatment is teletherapy, and one of the most important adverse side effects are skin reactions, an ailment more commonly called radiodermatitis. The main purpose of this study is to analyze knowledge of the evidence about topical products used in the prevention of radiodermatitis, to support care delivery to women with breast cancer during teletherapy. The research method used here is the comprehensive literature review. Four databases were used to select the bibliography. The sample consists of 15 articles. The data shows that, among the topical products analyzed here, Calendula, corticosteroids and Xclair have shown significant protective effects, underlining their actions. The lack of articles published in Brazil highlights the need for further research in this area, seeking better care quality through the use of products with scientifically proven efficiency.Teleterapia está entre las modalidades de tratamiento para el cáncer y uno de sus principales efectos adversos son reacciones de la piel, comúnmente llamado radiodermatitis. Este estudio objetivó analizar el conocimiento acerca de los productos tópicos utilizados para la prevención de la radiodermatitis que justifiquen la atención en teleterapia en mujeres con cáncer de mama. Se adoptó como método de investigación la revisión integradora de la literatura. Para la selección de los artículos se utilizaron cuatro bases de datos. La muestra fue constituida por 15 artículos. Los datos muestran que entre los productos tópicos analizados la caléndula, esteroides y Clair X tuvo un efecto protector significativo, destacando así por sus acciones. La ausencia de artículos publicados en Brasil se centra en la necesidad de seguir investigando para mejorar la calidad de la atención mediante el uso de productos con una eficacia científicamente probada.Dentre as modalidades de tratamento para o câncer está a teleterapia, e um dos principais efeitos adversos dessa modalidade são as reações de pele, comumente chamadas radiodermatites. O presente estudo teve como objetivo analisar o conhecimento sobre as evidências acerca de produtos tópicos, utilizados na prevenção de radiodermatite, que fundamente o cuidado em teleterapia direcionado a mulheres com câncer de mama. Adotou-se como método de pesquisa a revisão integrativa da literatura. Para a seleção da bibliografia utilizaram-se quatro bases de dados. A amostra constitui-se de 15 artigos. Os dados demonstram que, dentre os produtos tópicos analisados, a calêndula, os corticoesteroides e o Xclair tiveram efeito protetor significante, destacando-se, assim, pelas suas ações. A ausência de artigos publicados no Brasil mostra a necessidade de mais pesquisas nessa área, visando a melhor qualidade na assistência a mulheres com câncer de mama, por meio da utilização de produtos com eficácia comprovada cientificamente

Fatigue in advanced cancer: a prospective controlled cross-sectional study

Uncontrolled studies have reported that fatigue is a common symptom among patients with advanced cancer. It is also a frequent complaint among the general population. Simply asking cancer patients whether or not they feel fatigued does not distinguish between the ‘background’ level of this symptom in the community and any ‘excess’ arising as a result of illness. The aim of this study was to determine the prevalence of fatigue among palliative care inpatients in comparison with a control group of age and sex-matched volunteers without cancer. In addition, the correlates of fatigue were investigated. The prevalence of ‘severe subjective fatigue’ (defined as fatigue greater than that experienced by 95% of the control group) was found to be 75%. Patients were malnourished, had diminished muscle function and were suffering from a number of physical and mental symptoms. The severity of fatigue was unrelated to age, sex, diagnosis, presence or site of metastases, anaemia, dose of opioid or steroid, any of the haematological or biochemical indices (except urea), nutritional status, voluntary muscle function, or mood. A multivariate analysis found that fatigue severity was significantly associated with pain and dypnoea scores in the patients, and with the symptoms of anxiety and depression in the controls. The authors conclude that subjective fatigue is both prevalent and severe among patients with advanced cancer. The causes of this symptom remain obscure. Further work is required in order to determine if the associations reported between fatigue and pain and between fatigue and dyspnoea are causal or coincidental. © 1999 Cancer Research Campaig