Limits on Duration of Copyright: Theories and Practice

Chapter in Time: Limits and Constraints edited by Parker, Harris, and Steineck

Reconciling Copyright Restoration for Pre-1972 Foreign Sound Recordings with the Classics Protection and Access Act

When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: namely, sound recordings of foreign origin that were granted copyright under the umbrella of copyright “restoration” in the Uruguay Round Amendments Act of 1994. This raises an obvious question that Congress did not expressly address: is the new sui generis protection provided by the CPA a substitute for the existing copyright protection that such foreign sound recordings already enjoyed, or is it supplemental to the existing copyright protection that such foreign sound recordings already enjoyed, or does it simply not apply to such foreign sound recordings at all? This article examines the three alternatives and concludes that Congressional clarification is needed. Absent such clarification, it is possible that foreign sound recordings are simply not covered by the CPA at all, rendering its protections for digital music providers ineffective and depriving foreign sound recordings of the term extension provided by the CPA

Recent Developments in Copyright Law: Selected U.S. Supreme Court, Court of Appeals, and District Court Opinions Between February 1, 2005 and May 1, 2006

This article highlights nine U.S. copyright law decisions handed down between February 1, 2005 and May 1, 2006. This review was originally delivered as a speech at The 50th Annual Conference of Developments in Intellectual Property Law held by The John Marshall Law School Center for Intellectual Property Law on May 26, 2006. Discussing a wide range of cases from peer-to-peer file sharing to standing, the analysis focuses on the most recent developments in copyright

Reconciling Copyright Restoration for Pre-1972 Foreign Sound Recordings with the Classics Protection and Access Act

When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: namely, sound recordings of foreign origin that were granted copyright under the umbrella of copyright “restoration” in the Uruguay Round Amendments Act of 1994. This raises an obvious question that Congress did not expressly address: is the new sui generis protection provided by the CPA a substitute for the existing copyright protection that such foreign sound recordings already enjoyed, or is it supplemental to the existing copyright protection that such foreign sound recordings already enjoyed, or does it simply not apply to such foreign sound recordings at all? This article examines the three alternatives and concludes that Congressional clarification is needed. Absent such clarification, it is possible that foreign sound recordings are simply not covered by the CPA at all, rendering its protections for digital music providers ineffective and depriving foreign sound recordings of the term extension provided by the CPA

Copyright and Underwater Cultural Heritage

This article will focus on three aspects of copyright law as it applies to the photography of underwater cultural heritage. First, to what extent can a salvor claim exclusive rights to photograph a particular site? Second, who is the author (or who are the authors) of such underwater photography, which increasingly involves the use of remote-controlled robotic drones? Third, to what extent can a State control the use of underwater photography that falls within its territorial waters?8 All three of these aspects have been the subject of lawsuits and judicial opinions in the United States; and those opinions shed light on the utility of copyright to serve the new role that those who seek to protect underwater cultural heritage have thrust upon it

The Schwarzenegger Bobblehead Case: Introduction and Statement of Facts

In May 2004, news media around the world buzzed after learning that Arnold Schwarzenegger, movie-star-turned Governor of California, had filed a lawsuit against an Ohio manufacturer of bobblehead dolls bearing his name and likeness. The case presented a seemingly stark choice between the right of a celebrity-politician to protect his image against commercial appropriation and the First Amendment rights of the public to lampoon that image, and commentators hoped that the case would set a precedent regarding how those rights should be balanced. Just three months later, however, before any court ruling had been made, the parties announced that they had reached a settlement, leaving that important legal issue unresolved. Shortly after the case settled, the Santa Clara Law Review invited counsel for the parties to debate the legal issues raised by the case in a written symposium. The purpose of this symposium is to preserve the legal arguments of the parties for posterity and to provide guidance for courts and counsel facing similar issues in the future. This Introduction sets forth the facts of the case, as compiled from publicly available sources. Plaintiffs counsel, Charles J. Harder and Henry L. Self, III of Lavely & Singer, argue in favor of protecting Governor Schwarzenegger\u27s statutory and common-law right of publicity, while Defendant\u27s counsel, William T. Gallagher of Townsend & Townsend & Crew, contends that the doll should be protected by the First Amendment. Academic commentary is provided by Professor Shubha Ghosh of the State University of New York at Buffalo, and Professors David S. Welkowitz of Whittier Law School and Tyler T. Ochoa of Santa Clara University School of Law

Dr. Seuss, The Juice and Fair Use Revisited: Two Decades of Parody and Satire in Copyright Law

This essay will summarize some of the salient features and arguments made in the original article. It will also analyze copyright infringement cases in the last 20 years applying the fair use doctrine to parody and satire

When Does Freedom of Speech Trump Celebrity Publicity Rights?

The use of college athletes’ likenesses in sports simulation videogames, such as Electronic Arts’ NCAA Football series, has spawned a number of lawsuits alleging that such use violates the athletes’ rights of publicity. (These actions have been brought by retired college athletes, as the NCAA prohibits college athletes from commercially exploiting their rights of publicity while in college, as a condition of maintaining their “amateur” status.) Two federal Courts of Appeals have now held 2-1 that the First Amendment does not protect Electronic Arts’ depiction of actual college players, so that EA may be held liable under state right of publicity laws. The agreement between the two courts makes it considerably less likely that the Supreme Court will review either one of the cases when it resumes sitting in October

What is a Useful Article in Copyright Law After \u3ci\u3e Star Athletica\u3c/i\u3e?

In Star Athletica, LLC v, Varsity Brands, Inc., the Supreme Court decided the appropriate test to determine when a feature of a useful article is protectable under §101 of the Copyright Act. However, there is an antecedent question that must be answered first before the Supreme Court\u27s two part test in Star Athetica may be invoked

NON-FUNGIBLE TOKENS (NFTS) AND COPYRIGHT LAW

The concept of using non-fungible tokens (NFTs) to facilitate and authenticate sales of digital art dates back to 2014; but it took several years before the concept really captured public attention. Since copyright law governs the reproduction of works of art, including digital images, the connection to NFTs seems obvious. Yet, copyright law is only tangentially related to NFTs, for two reasons. First, buying an NFT does not, by itself, convey any rights to reproduce or display the work associated with that token. Instead, those rights are governed entirely by the contract that accompanies the sale. Second, minting and selling an NFT, by itself, likely does not violate any of the exclusive rights provided by copyright. As a result, although copyright may provide a useful tool for artists seeking to monetize their art, it is probable that its usefulness will be limited in lawsuits concerning NFTs. Ultimately, other legal tools (such as trademark law) may provide better relief when litigation concerning NFTs becomes necessary