Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, May 31, 2016

Ross on Student Speech and Entry Into the School-to-Prison Pipeline

Catherine J. Ross, George Washington University Law School, and Institute for Advanced Study, Princeton University, is publishing 'Bitch,' Go Directly to Jail: Student Speech and Entry into the School-to-Prison Pipeline in volume 88 of Temple Law Review (2016). Here is the abstract.

This article demonstrates the close connection between student speech that the First Amendment protects (even for students in grades K-12) and penalties school authorities impose on speech they find controversial or offensive. The penalties include deprivation of instructional time – suspension, expulsion and assignment to alternative school for troubled and disruptive youth. The link between the exercise of First Amendment rights and school discipline that starts young people on the school-to-prison pipeline is even more dramatic when on-site police officers arrest students or schools refer them to the juvenile justice system for violating a school speech code – rules imposed by the school that may restrict expression the First Amendment protects in- and out- of school. Using national and local survey data that show the majority of students suspended from school are charged with nothing more than a code violation, often involving protected speech (such as cursing or criticizing a teacher), as well as reported cases about violations of student speech rights decided long after students had lost educational time, and the stipulations in the prolonged civil rights litigation in Meridian, Mississippi linking race, speech, in-school arrests and incarceration, the article demonstrates a nexus between the exercise of constitutional rights and the school-to-prison pipeline. The article also discusses penalties imposed for off-campus speech by students, especially online expression. The author argues that protected speech should never result in penalties that lead to adjudication as a delinquent or confinement in a juvenile facility.

Download the article from SSRN at the link.

May 31, 2016 | Permalink

Friday, May 27, 2016

Penney on Online Surveillance and Wikipedia Use

Jon Penney, University of Oxford, Oxford Internet Institute; Citizen Lab, University of Toronto; Harvard University, Berkman Center for Internet and Society, and Dalhousie Unviersity Schulich School of Law, is publishing Chilling Effects: Online Surveillance and Wikipedia Use in the Berkeley Technology Law Journal (2016). Here is the abstract.

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but also a change in the overall secular trend in the view count traffic, suggesting not only immediate but also long-term chilling effects resulting from the NSA/PRISM online surveillance revelations. These, and other results from the case study, not only offer compelling evidence for chilling effects associated with online surveillance, but also offer important insights about how we should understand such chilling effects and their scope, including how they interact with other dramatic or significant events (like war and conflict) and their broader implications for privacy, U.S. constitutional litigation, and the health of democratic society. This study is among the first to demonstrate — using either Wikipedia data or web traffic data more generally — how government surveillance and similar actions may impact online activities, including access to information and knowledge online. PLEASE NOTE: This is not the final draft of this article. A final version, which can be cited to, is forthcoming later in 2016.

Download the article from SSRN at the link.

May 27, 2016 | Permalink

Pasquale on Platform Neutrality and Freedom of Expression Spheres of Private Power

Frank A. Pasquale III, University of Maryland School of Law, and Yale University Information Society Project, is publishing Platform Neutrality: Enhancing Freedom of Expression in Spheres of Private Power in Theoretical Inquiries in Law. Here is the abstract.

Troubling patterns of suppressed speech have emerged on the corporate internet. A large platform may marginalize (or entirely block) potential connections between audiences and speakers. Consumer protection concerns arise, for platforms may be marketing themselves as open, comprehensive, and unbiased, when they are in fact closed, partial, and self-serving. Responding to protests, the accused platform either asserts a right to craft the information environment it desires, or abjures responsibility, claiming to merely reflect the desires and preferences of its user base. Such responses betray an opportunistic commercialism at odds with the platforms’ touted social missions. Large platforms should be developing (and holding themselves to) more ambitious standards for promoting expression online, rather than warring against privacy, competition, and consumer protection laws. These regulations enable a more vibrant public sphere. They also defuse the twin specters of monopolization and total surveillance, which are grave threats to freedom of expression.

Download the article from SSRN at the link.

May 27, 2016 | Permalink

Thursday, May 26, 2016

Blitz on Free Speech, Occupational Speech, and Psychotherapy

Marc Jonathan Blitz, Oklahoma City University, is publishing Free Speech, Occupational Speech, and Psychotherapy in volume 44 of the Hofstra Law Review (2016). Here is the abstract.

Psychotherapy, said one of its earliest clients, Anna O, is a “talking cure.” It banishes or lessens mental illness and suffering not with medicine or surgery, but with words. This aspect of psychotherapy raises an interesting set of First Amendment questions. Is verbal communication between a therapist and her client protected by the First Amendment even though it is part of a healing process, or does government have the same authority to restrict this speech-based healing method as it does to restrict the use of pharmaceuticals or medical equipment? Must it show that therapists’ statements about human psychology are false or harmful to the client? Or may it constitutionally bar even truthful therapist-client communications that raise little risk of harm to the client’s physical or mental health, on the grounds that such verbal treatments promote values or behaviors at odds with those of the profession or of the larger society? These questions are challenging for First Amendment law largely because talk therapy is the kind of activity that straddles an important boundary line in First Amendment law and theory. As the Supreme Court noted in Lawrence v. Texas, the Constitution assumes that there will be certain “spaces” where “the State” is not a “dominant presence” and where sovereignty belongs to each individual, not those who exercise collective political power. Among such spaces is the First Amendment-secured realm of “thought, belief, [and] expression.” 539 U.S. 558, 562 (2003). This constitutional line drawn by the Court in Lawrence mirrors that described by John Locke in A Letter Concerning Toleration: Locke argued that while state power extends to “civil interests” such as protection of “life, liberty, health” and other “outward” concerns, it does not extend to the “care of the soul,” which remains under the control of the individual himself. The challenge presented by psychotherapy, I argue in this article, is that it falls partly within and partly outside this constitutional shielded sphere of mental and expressive autonomy. On the one hand, if there is any activity that belongs in the realm of constitutionally protected “thought, belief, [and] expression” it the self-exploration that individuals engage in as they try to understand their inner lives – whether it occurs in a private meditation or diary entry, or in a psychotherapist’s office. When we use talk therapy, in part, to shape (or reshape) our conception of the good, or the perspective we should take on particular life events, the state should not be permitted to forcibly substitute its values for ours. On the other hand, while government is not supposed to interfere with our choices about what to say or think, or about what values to hold, it is charged with protecting our health and safety, and, in psychotherapy, such health and safety interests are very often at stake – for example, when individuals rely on therapists to make accurate diagnoses of possible mental illnesses (or rule them out), and suggest the proper treatment such conditions. The central question about talk therapy’s First Amendment status then is what kind of First Amendment regime can best reconcile these two conflicting demands – to keep government interference out of the way we understand and shape our mental life through conversation, while letting it into medical practices with significant stakes for our mental health. How, in other words, can First Amendment law simultaneously allow the state to regulate the aspects of psychotherapy that are its business, while keeping it out of those aspects that are in the sphere of individual autonomy? This is also a question that is key to the debate about the First Amendment status of other “occupational speech” that occurs when we seek verbal guidance from other experts.

Download the article from SSRN at the link.

May 26, 2016 | Permalink

Kur on Brand Symbols, the Consumer, and the Internet

Annette Kur, Max Planck Institute for Innovation and Competition, is publishing Brand Symbols, the Consumer, and the Internet in NZCIEL Workshop at Wellington, New Zealand, 19-20 February, 2015, Conference Volume (Forthcoming) and Max Planck Institute for Innovation and Competition Research Paper No. 16-01. Here is the abstract.

The article gives an overview on the way in which trade marks – or rather: brand symbols – operate in the internet environment. Referring to interdisciplinary research in psychology and neuroscience it is shown how the soft coercive power of brands and the spell they tend to cast over the mind and actions of consumers is reinforced in the digital age where the exposure of consumers to commercial messages is massively enhanced due to the pervasiveness of the internet. Before that background, the article summarizes the legal issues that so far have been in the foreground of practice and scholarly discussions regarding trademarks and the internet. It is posited that those issues as well should be resolved in the light of the larger picture involving the psychological, sociological and cultural dimensions of the use of brands in the digital age.

Download the article from SSRN at the link.

May 26, 2016 | Permalink

Manning on English and Continental Tests of Originality in Copyright

Colin Manning, Cork Institute of Technology, has published English & Continental Tests of Originality: Labour, Skill, and Judgement versus Creations of the Mind. Here is the abstract.

This paper traces the provenance of the predominant tests of originality in copyright to their instrumental and author's rights justifications. It argues that the idea/expression dichotomy is essential to any evaluation of their relative merits, but is being undermined. It illustrates the hazards of absolutist applications of the tests and demonstrates, primarily with reference to photography, how many established principles of copyright law are problematic. It argues that despite increasing constitutionalisation of intellectual property, the public interest is best served by acknowledging that copyright is primarily a policy choice.

Download the article from SSRN at the link.

May 26, 2016 | Permalink

Wednesday, May 25, 2016

Judge Denies Gawker Motion For Retrial, Lets Jury Verdict and Damages Stand

Judge Pamela Campbell is leaving a jury verdict and a $140 million damage award to Hulk Hogan in place, the Hollywood Reporter is noting.  Gawker, the defendant in the invasion of privacy and right of publicity case that was decided in March of this year, had asked the judge for a retrial. Meanwhile, reports are surfacing in the media that Mr. Hogan's case was financed at least partly by billionaire Peter Thiel, who has indicated his disapproval of the defendant in the past. More here from the New York Times. Such cases can be expensive for both sides to litigate.

May 25, 2016 | Permalink

Thursday, May 19, 2016

Rachum-Twaig on the Cognitive Process of Creation and Copyright Law

Omri Rachum-Twaig, Tel Aviv University, Buchmann Faculty of Law, is publishing Recreating Copyright: The Cognitive Process of Creation and Copyright Law in the Fordham Intellectual Property, Media, & Entertainment Law Journal. Here is the abstract.

Copyright law reflects the intuitive understating of creativity in the eyes of the law. This is because copyright's primary goal is to promote creativity. But is the legal understanding of creativity in line with cognitive psychology's understanding of the creative process? This article examines whether there is a match between the law and cognitive psychology research as far as creativity is concerned. Some scholars posit that theories of creativity fit well with current copyright law. For example, it has recently been argued that, based upon some accounts of creativity, copyright law's constraints on creativity actually push authors to create more original and creative works. In contrast, this article provides a broad evaluation of creativity studies and questions whether they indeed fit with copyright law's assumptions about creativity. While many copyright doctrines fit the cognitive understanding of creativity, the idea/expression dichotomy, which requires the same standard of review for both derivative works and reproductions, is not justified under the cognitive psychology of the creative process.

Download the article from SSRN at the link.

May 19, 2016 | Permalink

Manes on Online Service Providers and Surveilliance Law Transparency

Jonathan M. Manes, Yale Law School Information Society Project, has published Online Service Providers and Surveillance Law Transparency at 125 Yale Law Journal Forum 343 (2016). Here is the abstract.

The Snowden disclosures, and others that followed, illuminated a troubling feature of surveillance law: examining the statute books and other public sources of law can paint a radically incomplete or even misleading picture of how the government actually construes its legal authority to conduct surveillance. This observation raises profound anxieties about public democratic control of the surveillance state. These anxieties make a hard question very salient: how can we ensure a measure of transparency about how surveillance laws have been interpreted in practice? This Essay argues that online service providers and other companies that mediate our digital communications are in a special position to enhance surveillance transparency. Because these private companies are subject to surveillance orders, they (or some of their employees) are privy to information that the rest of public is not: they know what kinds of information the government demands of them under a given surveillance law, and how those laws are being used. If these companies could win the right to speak about the kinds of records the government is ordering them to disclose, they would be able to provide the public with crucial information about how the surveillance laws have been interpreted and applied in practice. This kind of limited disclosure would do much to allay democratic anxieties about secret reinterpretations of surveillance laws, and it need not reveal truly sensitive operational detail like the targets of surveillance, the circumstances in which particular surveillance tools are used, or other sensitive investigatory matters. The law currently forbids companies from engaging in this kind of speech, because gag orders routinely prevent companies from disclosing nearly everything about the surveillance orders they receive. It need not remain so. This Essay offers a First Amendment strategy that online service providers (and others subject to surveillance orders) could pursue to reclaim their right to speak and to inform their customers and the public about how surveillance laws have been interpreted in practice.

Download the article from SSRN at the link.

May 19, 2016 | Permalink

Wednesday, May 18, 2016

Kabanda on Music for Development in the Digital Age

Patrick Kabanda, World Bank Group, has published Music for Development in the Digital Age as a Background Paper for the World Development Report 2016: Digital Dividends. Here is the abstract.

The music world has had its share of Internet-led shake-ups. Digital piracy and the advertisement rules of platforms like YouTube are major concerns. But there are also opportunities: online marketing, arts education, cultural awareness, and nation branding are particularly notable. How can development practice take advantage of these opportunities? This discussion stresses (1) giving artists the capability to use the Internet effectively; (2) prioritizing open Internet access, especially in rural areas; (3) considering strong antitrust provisions in media ownership; (4) granting such provisions as solar tax credits to artists or creative businesses where needed; (5) targeting cultural elements that may inhibit Internet access for female artists; (6) promoting intellectual property training; and (7) creating a platform that carries traditional music for development.

Download the paper from SSRN at the link.

May 18, 2016 | Permalink

Blank on Media Warfare, Propaganda, and the Law of War

Laurie R. Blank, Emory University School of Law, is publishing Chapter 7: Media Warfare, Propaganda and the Law of War in Soft War: The Ethics of Unarmed Conflict (2016). Here is the abstract.

In today’s 24/7 media and Internet culture, warfare does not take place only in the kinetic arena of the battlespace. Airstrikes, artillery barrages and infantry maneuvers are accompanied by equally intense debates and discourse in the media about the legality and legitimacy of military action, with allegations of war crimes and justifications for attacks flying as quickly as drone strikes. With the involvement of international, regional and national courts, commissions of inquiry, other judicial and quasi-judicial entities — and, perhaps most of all, the court of world opinion — this battle of words can often seem to be as important as military capabilities. Numerous factors form, sway and cement that public opinion, including the efforts of militaries and armed groups to control information flows and of journalists, advocacy groups, fact-finding missions and ordinary civilians to seek, publicize and comment on information. This complex mix leads to a combustible arena of media warfare that has significant consequences not only for the way wars are fought and won, but for the legal framework that governs conflicts. This chapter explores how propaganda and media warfare intersect with the international law framework governing conflict, focusing on how information operations and media coverage link back to legal compliance — specifically claims of law violations or compliance — and legitimacy. In essence, the information battlespace has a significant effect on the application and interpretation of the law of armed conflict, including the very definitions that form the heart of the legal framework. Media coverage is an essential tool for the protection of persons and the enforcement of legal and moral norms At the same time, in order to preserve LOAC’s principles and processes, it is helpful to understand how the two interrelate and, in particular, how media coverage’s impact on public discourse can have significant and problematic consequences for the interpretation and development of LOAC.

Download the chapter from SSRN at the link.

May 18, 2016 | Permalink

Tuesday, May 17, 2016

de Mars and O'Callaghan on Privacy and Search Engines: Forgetting or Contextualizing?

Sylvia de Mars, Newcastle University Law School, and Patrick O'Callaghan, University College Cork, School of Law, have published Privacy and Search Engines: Forgetting or Contextualizing? at 43 Journal of Law and Society 257 (2016). Here is the abstract.

This article considers the much‐criticized ‘right to be forgotten’ in the context of the European Court of Justice’s judgment in the Google Spain case. It defends the ‘right to be forgotten’ as a metaphor that can provide us with a better understanding of the particular privacy concerns of the search‐engine age and their interaction with the freedom to access information, and draws on Goffman’s idea of ‘information games’ and Nissenbaum’s theory of ‘contextual integrity’. While supporting the principles that underpin the judgment, the article rejects the Court’s binary approach of ‘forgetting’ versus ‘remembering’ personal information. Instead, it argues that the EU legislator should introduce more nuanced means of addressing modern privacy concerns. By establishing two remedies – ‘delisting’ or ‘reordering’, depending on the nature of the information – online information flows can be adjusted to preserve both the right to privacy and the freedom to access information in more contextually appropriate ways.

The full text is not available from SSRN.

May 17, 2016 | Permalink

Regan, Bennett, and Bayley on the Protection of Privacy Rights in Canada and the United States

Priscilla M. Regan, George Mason University, Department of Public and International Affairs, Colin Bennett, University of Victoria, and Robin Bayley, Linden Consulting, have publishing If These Canadians Lived in the United States, How Would They Protect Their Privacy? The Functional Equivalence of Privacy Redress Mechanisms in Canada and the US (to be presented at the 2016 Privacy Law Scholars Conference, George Washington University, June 2-3, 2016). Here is the abstract.

Recent commentary has contended that, despite the fact that the U.S. Does not have a comprehensive data protection statute nor a data protection authority, the entire regime for the protection of privacy is essentially and functionally equivalent to those in other advanced democratic states. We subject that hypothesis to empirical examination by investigating seven actual complaints and investigations conducted under the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA). These are real cases brought by real individuals. In each case, we ask the question, if these same fact situations occurred in the U.S. How would these individuals try to advance their privacy rights and seek redress? We examine cases from different sectors: credit reporting, insurance, online advertising, online dating, banking, hotels and cellular communications. The cases are not representative. Nevertheless, our results highlight the advantages of a single point of contact, a comprehensive legal framework, and of a system that relies less on litigation.

Download the paper from SSRN at the link.

May 17, 2016 | Permalink

Monday, May 16, 2016

Gannett Makes Higher Offer For Tribune Company

The Gannett Company has raised its offer for the Tribune Publishing Company to $864 million, according to the Hollywood Reporter. The Tribune owns several major dailies, including the L. A. Times and the Chicago Tribune. More here from THR.

May 16, 2016 | Permalink

Kitrosser on the Special Value of Public Employee Speech

Heidi Kitrosser, University of Minnesota, Twin Cities, School of Law, is publishing The Special Value of Public Employee Speech in the 2015 Supreme Court Review. Here is the abstract.

In this article, I use the 2014 decision of Lane v. Franks as a jumping off point to revisit the rule of Garcetti v. Ceballos, that speech conducted pursuant to one’s public employment is unprotected by the First Amendment. I explain that Garcetti is emblematic of the Supreme Court’s failure to dig beneath the surface of its own long-standing acknowledgment that public employee speech holds special value. If one tunnels into that subterrane, one finds that the value of public employee speech is a function not just of content, but of form. Public employees play a special role under the First Amendment by virtue of their privileged access both to information and to communication channels for conveying it. The special communication channels to which employees have access – including internal channels – can be uniquely effective in supporting accountability and the rule of law, and thus in fulfilling core free speech values. I consider how a fuller conception of special value – as well as a more sharply defined government interest in limiting employee speech – ought to impact the doctrine of public employee speech. I propose that, where work product speech can confidently be identified, courts should consider whether employees were disciplined based on a genuine, not pretextual assessment of work product quality. Crucially, in cases where employees were hired to render independent professional judgments, disappointment with those judgments, not because they reflect low quality, but because they are politically or personally inconvenient for employers, should not be deemed quality-based assessments. Only disciplinary actions based on quality-based assessments should be exempt from further scrutiny. As a second-best, but perhaps more realistic near-term alternative, I also consider means to limit Garcetti’s reach.

Download the article from SSRN at the link.

May 16, 2016 | Permalink

Ricketson and Ginsburg on Intellectual Property in News

Sam Ricketson, Melbourne Law School, and Jane C. Ginsburg, Columbia Law School, are publishing Intellectual Property in News? Why Not? in Research Handbook on Intellectual Property in Media and Entertainment (Sam Ricketson and Megan Richardson, eds., Edward Elgar, 2016) (forthcoming). Here is the abstract.

This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out in the Berne Convention permit its unlicensed appropriation.

Download the essay from SSRN at the link.

May 16, 2016 | Permalink

Friday, May 13, 2016

Perzanowski and Hoofnagle on Consumer Confusion Over the "Buy Now" Link for Online Purchase of Digital Goods

Aaron Perzanowski, Case Western Reserve University School of Law, and Chris Jay Hoofnagle, University of California, Berkeley, School of Information, and University of California, Berkeley, School of Law, are publishing What We Buy When We "Buy Now" in volume 165 of the University of Pennsylvania Law Review. Here is the abstract.

Retailers such as Apple and Amazon market digital media to consumers using the familiar language of product ownership, including phrases like “buy now,” “own,” and “purchase.” Consumers may understandably associate such language with strong personal property rights. But the license agreements and terms of use associated with these transactions tell a different story. They explain that ebooks, mp3 albums, digital movies, games, and software are not sold, but merely licensed. The terms limit consumers' ability to resell, lend, transfer, and even retain possession of the digital media they acquire. Moreover, unlike physical media products, access to digital media is contingent—it depends on shifting business models, the success and failure of platforms, and often on the maintenance and availability of DRM authentication systems years after the consumer clicked “buy now.” This article presents the results of the first-ever empirical study of consumers' perceptions of the marketing language used by digital media retailers. We created a fictitious Internet retail site, surveyed a nationally representative sample of nearly 1300 online consumers, and analyzed their perceptions through the lens of false advertising and unfair and deceptive trade practices. The resulting data reveal a number of insights about how consumers understand and misunderstand digital transactions. A surprisingly high percentage of consumers believe that when they “buy now,” they acquire the same sorts of rights to use and transfer digital media goods that they enjoy for physical goods. The survey also strongly suggests that these rights matter to consumers. Consumers are willing to pay more for them and are more likely to acquire media through other means, both lawful and unlawful, in their absence. Our study suggests that a relatively simple and inexpensive intervention—adding a short notice to a digital product page that outlines consumer rights in straightforward language—is an effective means of significantly reducing consumers’ material misperceptions. Sales of digital media generate hundreds of billions in revenue, and some percentage of this revenue is based on deception. Presumably, if consumers knew of the limited bundle of rights they were acquiring, the market could drive down the price of digital media or generate competitive business models that offered a different set of rights. We thus turn to legal interventions, such as state false advertising law, the Lanham Act, and federal unfair and deceptive trade practice law as possible remedies for digital media deception. Because of impediments to suit, including arbitration clauses and basic economic disincentives for plaintiffs, we conclude that the Federal Trade Commission (FTC) could help align business practices with consumer perceptions. The FTC’s deep expertise in consumer disclosures, along with a series of investigations into companies that interfered with consumers’ use of media through digital rights management makes the agency a good fit for deceptions that result when we “buy now.”

Download the article from SSRN at the link.

May 13, 2016 | Permalink

Wednesday, May 11, 2016

Tushnet on the Coverage/Protection Distinction in the Law of Freedom of Speech

Mark Tushnet, Harvard Law School, has published The Coverage/Protection Distinction in the Law of Freedom of Speech – An Essay on Meta-Doctrine in Constitutional Law. Here is the abstract.

The distinction between the First Amendment’s coverage – those human activities the regulation of which is evaluated by invoking the First Amendment – and the protection it affords – the conditions under which a regulation violates the First Amendment – has been an important component of the Amendment’s doctrinal architecture. Recent Supreme Court decisions place significant pressure on the coverage/protection distinction. This Essay examines those cases and the ways in which intuitively attractive results might be precluded by abandoning the distinction. Salvaging those results is possible, but only by deploying analytical moves that run athwart a constitutional “meta-doctrine,” which I call the “too much work” principle. In addition to contributing to understanding the coverage/protection distinction and the Court’s recent decisions, the Essay explains the role that meta-doctrines play in constitutional architecture more generally.

Download the article from SSRN at the link.

May 11, 2016 | Permalink

Tuesday, May 10, 2016

Subotnik on the Copyright Interests of Photographic Subjects

Eva E. Subotnik, St. John's University School of Law, has published The Author Was Not an Author: The Copyright Interests of Photographic Subjects from Wilde to Garcia at 39 Columbia Journal of Law & the Arts 449 (2016). Here is the abstract.

Toward the end of his dissent in Garcia v. Google, Judge Alex Kozinski remarked that “[w]hen modern works, such as films or plays, are produced, contributors will often create separate, copyrightable works as part of the process.” Judge Kozinski’s characterization of plays (or even films) as “modern works” opens the door to an examination of that claim with respect to another genre of modern work: the photograph. This essay focuses on the treatment of claimed authorial contributions by photographic subjects to the photographs in which they are portrayed. It traces the analysis of this issue from the early photography cases (and provides the relevant litigated images) to present times. What emerges is a forceful line of precedent that largely did not consider, accept, or emphasize a photographic subject’s authorial contributions to a finished photographic image. Coming full circle, I argue that longstanding judicial instincts on this front may help explain the outcome in the Garcia case.

Download the article from SSRN at the link.

May 10, 2016 | Permalink

Samuelson on Copyright's Merger Doctrine

Pamela Samuelson, University of California, Berkeley, School of Law, is publishing Reconceptualizing Copyright's Merger Doctrine in volume 63 of the Journal of the Copyright Society of the U.S.A. Here is the abstract.

Under the merger doctrine of U.S. copyright law, courts sometimes find original expression in a work of authorship to be “merged” with the idea expressed, when that idea is incapable of being expressed, as a practical matter, in more than one or a small number of ways. To be true to the principle that copyright law does not extend its protection to ideas, courts have held in numerous cases that the merged expression is unprotectable by copyright law. This Article, which memorializes the 2015 Brace Lecture, identifies and dispels eight myths about the merger doctrine, including the myth that the doctrine was borne in the Supreme Court’s Baker v. Selden decision. It also discusses merger in relation to other copyright doctrines, such as scenes a faire, originality, and the exclusion of processes embodied in copyrighted works. Finally, it considers various functions of the merger doctrine, such as averting unwarranted monopolies, policing the boundaries between copyright and patent law, and enabling the ongoing progress of knowledge.

Download the article from SSRN at the link.

May 10, 2016 | Permalink