Small Business and Copyright Ownership

This article attempts to facilitate the recognition of situations involving copyright and the appropriate arrangements regarding ownership of the right. Part II briefly outlines some copyright basics, including the varieties of copyrightable subject matter under the Copyright Act of 1976. Part III describes copyright ownership, focusing on the kinds of transactions most likely to take place in the context of small business, including the “work for hire” doctrine. Armed with these fundamentals, the small-business lawyer may find that copyright litigation will rarely become necessary

Fair Use and Appropriation Art

Part I provides some background regarding aesthetic vocabulary in the arts, and traces the use of appropriated images in the twentieth- and twenty-first centuries. Part II discusses the general application of copyright law to appropriation art. Part III examines the current status of the fair use cases that address appropriation art and concludes that the fair use results are better than before, largely because of the ascendancy of “transformativeness” as an important fair use factor. It also concludes, however, that fair use remains insufficient to protect appropriation art. Finally, Part IV re-proposes a solution—an exception to copyright, limited to fine art—grounded in the public benefit of dissemination of knowledge and the lack of damage to the original author’s economic interest resulting from appropriation art

Copyright Infringement and Peer-to-Peer Technology

In this article, I will analyze the activities of peer-to-peer ( P2P ) users to determine more precisely which, if any, of their actions infringe copyright. In Part II, I will describe the process of copyright lawmaking and the recent evolution of copyright law in response to technology. This discussion will include a brief description of conventional and P2P network technology. A copyright analysis of user activities on P2P networks follows in Part III, where I argue that the nature of copyright legislation requires courts to be especially careful and precise in determining the contours of infringing noncommercial conduct by members of the public. The analysis in Part II will lead to the conclusion that copying by P2P users does not infringe copyright, but distribution does. In Part IV, I address some strategic considerations affecting copyright enforcement and P2P networks, including some speculation about why the Napster case turned out the way it did, and why that is a problem. Finally, I propose the reinvigoration of Sony as a way to preserve the public benefit of P2P technology

The Lender as Unconventional Fiduciary

This Article examines one kind of fiduciary relationship—one that develops from an ordinary, arms-length commercial relationship between a lender and a borrower. Although this prototype relationship exists in the broader context of “lender liability,” to which academic commentators and the practicing bar have paid a good deal of attention in recent years, the suggested analysis has as much to do with fiduciary relationships generally as it does with issues of lender liability. The unconventional fiduciary relationship examined here differs in several respects from the conventional fiduciary relationship, for example that of trustee-beneficiary. Perhaps the most obvious difference is that the parties to an unconventional fiduciary relationship begin their relationship with a different set of goals and expectations than do the parties to a conventional fiduciary relationship. The differences between conventional and unconventional fiduciary relationships have not been evaluated for their impact on the goals of fiduciary law, the process of determining whether a relationship is fiduciary, or whether fiduciary duties have been breached. This Article reveals that the distinction between conventional and unconventional fiduciaries is important in at least two respects. First, imprecision serves no useful purpose in the analysis of unconventional fiduciary cases; in fact, in such cases, imprecision hinders the achievement of the goals of fiduciary law. Second, it is both possible and useful to clarify fiduciary principles as they are applied to unconventional fiduciaries

Copyright, Containers, and the Court: A Reply to Professor Leaffer

The author finds little with which to be pleased in the Court’s recent copyright cases. The Court seems to be fighting a holding action, fending off the future by resolutely gazing backward. While the Court has not itself enlarged copyright, it has not meaningfully evaluated Congress’s power to do so, and its decisions freeze copyright into a moment in time long past. Until copyright law recognizes that content is no longer container-bound, it will continue to flounder, desperately seeking analogies to the past and missing the significance of the technological changes all around us. That said, the author agrees with Professor Leaffer that the future is not black but gray. The author believes that there is still much that can be done about the expansion of copyright and its increasing concentration into the hands of a media oligopoly, beginning with an awakening of public concern with those vital rights that are eroded as copyright expands. As long as that can happen, there is hope. Sadly, if that does not happen, then the author does not think either Congress or the Court will save us from ourselves

The Sarbanes-Oxley Act: A Bird\u27s-Eye View

It is the goal of this article to provide a brief reference to the multitude of changes in the law wrought by SOX. The author\u27s hope is that this will be of use to students, scholars, and practitioners seeking an overview of the extensive changes resulting from this legislation. The discussion is broader than it is deep; indeed, a work attempting to examine SOX in depth would soon become a treatise and not just an article. The remainder of this article, then, will seek to provide a big-picture view of SOX: Part II of this article will address SOX regulation of professionals, including accountants, lawyers, and securities analysts. Part III will address SOX\u27s attempts to enhance corporate disclosure. Part IV will examine SOX\u27s efforts to reform corporate governance. Part V will examine SOX\u27s provisions dealing with enforcement of the law. Finally, Part VI will provide a brief conclusion

An Artist\u27s Privilege

This article examines visual art in light of the letter and the spirit of the Constitution\u27s Copyright Clause and the Copyright Act of 1976 (“Act”) and concludes that artists should have the freedom to copy works, not only of popular culture, but of all kinds. In other words, people creating art should be permitted to copy anything and everything. This is not to suggest that copyright serves no purpose: destroying the copyright edifice merely to protect the ability of certain artists to create would be dangerous and foolhardy. Practical limitations on an artist\u27s privilege to copy can be imposed to preserve copyright\u27s incentives for creation. An artist\u27s privilege to copy may at first seem extreme, but closer examination will reveal that both copyright theory and copyright owners can accommodate such copying. To test the proposed privilege, this Article will use a genre of art--appropriation art--that has gained some notoriety in the art and legal worlds because of its obvious and deliberate copying. Appropriation art will therefore serve as a paradigm; if the proposal can justify copying by an appropriation artist, then it will also justify less extreme copying. Let us begin, then, by examining two scenarios involving artistic appropriation as it is presently practiced