Copyright on Catfish Row: Musical Borrowing, Porgy & Bess and Unfair Use

Treatment of musical borrowing under current copyright standards is far too often inequitable. This is evident in the works of George Gershwin, who for a number of reasons was able to borrow freely from existing traditions, works and artists, copyright the works he produced that reflected such borrowings and then restrict future borrowings and reinterpretations of his works. Looking at the operation and uses of copyright in the specific instance of George Gershwin’s musical practice reflects uses of copyright in the musical arena and demonstrates some ways in which current copyright rules may not adequately contemplate actual practices of music copyright holders. George Gershwin borrowed from a wide range of musical sources, worked extensively with technical collaborators throughout his career and immersed himself in African American musical traditions. Following Gershwin’s death, however, the Gershwin family came to control his copyrights, highlighting the role that heirs now play in the actual use of copyright given the fact that copyright duration now extends to 70 years beyond the lives of individual creators. The Gershwin heirs have in most cases not permitted borrowing or significant reinterpretation of George Gershwin’s works. The ability of heirs to control borrowing from and interpretations of existing musical works reflects the fact that copyright structures to this point have been based on combining of rights of control and compensation within copyright frameworks. Through various mechanisms, heirs in particular tend to exert control over uses of copyright in ways that have little to do with the creation of musical works that is a major rationale for copyright. By potentially significantly limiting borrowing and reinterpretation, the exercise of control over copyright in such instances may actually hinder the creation of later works. Uses of copyright by creators such as Gershwin and his heirs suggest that it would be prudent in some instances to separate the control and compensation aspects of copyright, particularly in cases of post-mortem artistic legacies. This separation would also involve moving in the direction of a liability rule based standard in copyright that permits borrowing other than in instances of unfair use, in contrast to current standards that significantly limit borrowing except in limited instances such as fair use

Creativity, Improvisation, and Risk: Copyright and Musical Innovation

The article discusses U.S. copyright law and its influence on creativity and musical innovation. The author states that the benefits of copyright are commonly thought to outweigh the actual costs. As the author points out, the goal of early copyright legislation was to provide incentives for the continued creation of works. The role of visual bias in musical copyrights is examined. The author calls for a better understanding of musical creativity within the scope of copyright law

Vultures, Hyenas, and African Debt: Private Equity and Zambia

Although the Donegal court explicitly limited its scrutiny to the legal questions raised by the case rather than questions of morality and humanity, 23 the moral and ethical considerations connected with the activities of vulture investors are significant. This is particularly true in Africa, which in the post-colonial period has experienced poor economic performance in both absolute and relative terms, as well as significant and even increasing levels of poverty.24 Poverty has exacerbated political instability in Africa.25 The political situation in much of the African continent is similarly tenuous, with sub-Saharan African states in many instances serving as exemplars of weak or failed states: Black Africa\u27s forty-odd states are among the weakest in the world. State institutions and organizations are less developed in the sub-Saharan region than almost anywhere else. \u2726 This African institutional, political, and economic context has bearing on the operation of so-called vulture funds, which are typically private equity or hedge funds that seek to profit by repurchasing debt at a discount and then collecting from the debtor country at face value or an even higher amount. Vulture funds are not a new phenomenon.27 Although some assert that vulture funds serve an important market function by creating a liquid secondary market for developing country debt, the operation of vulture funds reflects an arbitrage of not only prices, but also legal, institutional, and political structures.28 Further, the activities of vulture funds may in fact serve to exacerbate the weaknesses of African legal, institutional, and political structures. At a minimum, the extent to which commercial activities of vulture funds and other commercial actors contribute to or exacerbate economic and political instability should be better understood

Measuring and Representing the Knowledge Economy: Accounting for Economic Reality under the Intangibles Paradigm

Enron has become a symbol: a symbol of excess, an illustration of how a company can base its business on fraudulent, deceptive or even largely non-existent business transactions. The collapse of Enron had a significant impact on the adoption of legislation such as the Sarbanes-Oxley Act, which was intended to prevent the types of fraudulent behavior that occurred at Enron. However, Sarbanes-Oxley and other responses to the business practices of many companies during the late 1990s do not fully address some of the underlying factors that permitted and in fact encouraged the Enrons of the world to represent their companies in a particular fashion. Such legal interventions further do not address underlying factors rooted in the fact that many companies now operate within the context of knowledge economy intangibles paradigm business practices. Current securities law disclosure frameworks are largely based on an implicit assumption about the nature of companies’ business operations. Such frameworks were developed during a time period in which the principal business model was one based on the exploitation of tangible assets. Since the latter half of the twentieth century and the advent of the knowledge economy or digital era, an increasing number of companies have begun operating under businesses models in which the predominant source of value comes from intangible resources. As a result of this fundamental change in business models, an intangibles “haze” has come to characterize the application of securities disclosure and accounting rules. This intangibles haze has meant that securities disclosures made by such companies, particularly as reflected in financial statements such as balance sheets, increasingly do not reflect underlying economic reality

Risky Business: The Credit Crisis and Failure (Part II)

I. Regulatory Failures and Regulatory Reform The credit crisis underscores the need for reform of regulatory and industry approaches to risk. Reframing risk should entail greater limitations on leverage and more comprehensive internal company risk management, with both external regulatory monitoring and more robust internal efforts. As a number of post-credit crisis compensation proposals have recommended, companies should also be encouraged to follow best practices with respect to compensation and bonuses based on performance.[1] Best practices should involve greater consideration of the ways in which compensation rewards take account of risks, particularly for traders whose activities entail significant risk exposure.[2] Such best practices in compensation might include, for example, creating a clawback or tail for compensation that matches the time horizon of receipt of compensation to the time horizon of trading activities for which an employee is compensated. Regulated companies in the financial services industry should also be required to disclose their internal risk management strategies in detail, as well as the alignment between compensation and risk, in order to comply with mandatory disclosures in risk disclosure discussions. All regulated and unregulated firms should also be required to immediately report all material incidents that reflect a failure of risk controls or risk management to a market stability regulator. External regulation can be used to promote development of internal risk management in the financial industry. The credit crisis, however, raises serious questions about the effectiveness of existing financial market regulatory approaches

Risky Business: The Credit Crisis and Failure (Part I)

The credit crisis represents a watershed event for global financial markets and has been linked to significant declines in real economy performance on a level of magnitude not experienced since World War II. Recognition of the crisis in 2008 has been followed in 2009 and 2010 by a plethora of competing proposals in response to the credit crisis. The result has been a cacophony of visions, voices, and approaches. The sheer noise that has ensued threatens to drown out the fundamental core questions that should be asked about the credit crisis. Among the most important are questions about the relationships between risk, regulation, and failure. The credit crisis can be viewed as a type of financial market network failure. The credit crisis underscores the complex and linked nature of contemporary financial markets, as well as the inherent difficulties regulators and industry participants face in managing complex and interconnected risks. The credit crisis also demonstrates that neither industry participants nor regulators fully apprehended underlying financial market risks. In recent years, financial products and financial markets have become increasingly complex and global. Although public commentary and policy discussions in the credit crisis aftermath focused on the implications of financial services firms that are “too big to fail,” existing commentary devotes less attention to the network-like characteristics of financial markets and the implications of complex networks for financial markets. The impact of financial market networks is heightened by the pervasive cultures of trading and risk-taking that now characterize many market segments. The risk-taking associated with financial market trading activities is perhaps best illustrated by cases of individual traders who took on risky trading positions that significantly compromised or, in the case of Baring Brothers, destroyed the firms on whose account they trade