Liberating Copyright: Thinking beyond Free Speech

Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious practice implicate fundamental rights. In such circumstances the application of copyright law deserves heightened scrutiny. The proposed liberty-based approach shores up arguments that some personal uses should be lawful and suggests that such uses should not be limited to those that are private and not for profit

The Right of Publicity’s Intellectual Property Turn

I will first consider the case often wrongly credited with creating the right of publicity―Haelan Laboratories v. Topps Chewing Gum―and then reveal the right of publicity’s true origins, explaining when the actual turn to becoming an independent IP right took place. I will conclude with some challenges posed by this IP turn, as well as some implications that flow from this resurrected story of the right of publicity’s development. Almost twenty-five years ago, in 1995, Columbia Law School organized another Symposium on the right of publicity.9 Many of the concerns raised then and the disagreements voiced at that time remain today. But none of the speakers at the time accurately understood the history of the right of publicity’s development. As a result, the conversation stood on a shaky foundation—one that has long skewed our understanding of the right of publicity, its objectives, and the controversies that surround it. Let us begin today’s Symposium by setting the record straight

The Other Side of Garcia: The Right of Publicity and Copyright Preemption

The subject of my talk is a perfect transition from the two prior talks, and a perfect place to end an entire symposium about Copyright Outside the Box—by literally getting out of the copyright box entirely, and talking about the right of publicity and its intersection with copyright law. I want to begin by thanking Jane Ginsburg for inviting me and encouraging me to participate, despite the fact that I’m stepping way outside the box. I also want to thank everyone here at the Kernochan Center, and the students of the Columbia Journal of Law and the Arts for putting this all together

The Questionable Use of Custom in Intellectual Property

The treatment of customary practices has been widely debated in many areas of the law, but there has been virtually no discussion of how custom is and should be treated in the context of intellectual property (IP). Nevertheless, customs have a profound impact on both de facto and de jure IP law. The unarticulated incorporation of custom threatens to swallow up IP law, and replace it with industry-led IP regimes that give the public and other creators more limited rights to access and use intellectual property than were envisioned by the Constitution and Congress. This article presents a powerful critique of the incorporation of customs in IP law and provides a theoretical framework for future analysis of private ordering regimes in IP. The article also provides additional support to those who have criticized the incorporation of custom in other fields

Sex in and out of Intimacy

The state has long attempted to regulate sexual activity by channeling sex into various forms of state-supported intimacy. Although commentators and legal scholars of diverse political perspectives generally believe such regulation is declining, the freedom to engage in diverse sexual activities has not been established as a matter of law. Instead, courts have extended legal protection to consensual sexual acts only to the extent such acts support other state interests, most often marriage and procreation. Although Lawrence v. Texas altered some aspects of that vision, it reinscribed others by suggesting that sexual activity should be protected from state interference only to the extent it promotes enduring intimate relationships. This sex-in-service-to-intimacy paradigm devalues both sexual activity that lacks intimacy and intimate relationships that lack sex and reinforces a gendered view of sexuality and intimacy – one that assumes that women value intimacy over sex and that sex is the primary avenue through which men can become emotionally intimate. This Article challenges the single vision of sexual intimacy reinforced by Lawrence, arguing that the state should independently protect both intimate relationships and sexual interactions. Other legal scholars have argued that intimate sexual relationships should be protected outside of marriage, or that sex and marriage should be separated from state support for families. This Article extends the deconstructive project to intimacy in general, arguing that sex should be decoupled in the legal sphere from both domestic relationships and other traditional forms of emotional intimacy, thus rejecting the dominant, almost sacred, understanding that the most important relationships between adults should always be both sexual and emotionally intimate. In place of that understanding, the Article explores alternative constructions of the value of sex in non-intimate circumstances and the value of intimate relationships in the absence of sex. At the same time, the Article contends that sex can maintain its relational and generally intimate character even if it is not always tied to emotional intimacy, as sex could become intimate and intimacy could become sexual in new ways. Sex might even eventually lose its status as an exceptional activity with unique values and dangers. As long as sex retains its exceptional status, however, the Article argues that sexual association is deserving of the same protection extended to intimate association. Therefore, the Article concludes by considering how the values furthered by alternative constructions of sex and intimacy could support a constitutional right to engage in consensual sexual activity without regard to intimacy

Sex In and Out of Intimacy

This Article challenges the underlying assumption in Lawrence v. Texas that sex is valuable only when potentially in service to emotional intimacy and proposes a new theory for extending legal protection to a wider range of consensual sexual activities. The current regulation of sex devalues both sexual relationships that lack an intimate component and intimate relationships that lack a sexual component. We argue that the state should independently protect both intimate relationships and sexual interactions because sex can constitute a vital part of individual identity and self-expression even when not channeled into intimacy. We challenge the dominant, almost sacred, understanding that the most important relationships between adults should always be both sexual and emotionally intimate

Sex In and Out of Intimacy

This Article challenges the underlying assumption in Lawrence v. Texas that sex is valuable only when potentially in service to emotional intimacy and proposes a new theory for extending legal protection to a wider range of consensual sexual activities. The current regulation of sex devalues both sexual relationships that lack an intimate component and intimate relationships that lack a sexual component. We argue that the state should independently protect both intimate relationships and sexual interactions because sex can constitute a vital part of individual identity and self-expression even when not channeled into intimacy. We challenge the dominant, almost sacred, understanding that the most important relationships between adults should always be both sexual and emotionally intimate