The Illusion of More

In this post, I wrote about some of the difficulties that U.S. formalities present to many independent creators, difficulties highlighted by the case Unicolors v. H&M. I cited a paper written by Steven Tepp for the Professional Photographers of America (PPA) and mentioned that I would follow up with a podcast to delve a little deeper into the subject of formalities--those pesky, administrative details that sometimes confound independent authors trying to protect their works under copyright.

Steven Tepp is the president and founder of the IP consulting firm Sentinel Worldwide. In his career, he has  served as Chief Intellectual Property Counsel for the Global Intellectual Property Center (GIPC) of the U.S. Chamber of Commerce and as senior counsel for Policy and International Affairs at the U.S. Copyright Office.  See Steven's website here.

Episode Contents

• 46:06 – Steven Tepp’s background
• 01:42 – What are  formalities in U.S. copyright?
• 06:06 – The relationship between formalities and the Library of Congress.
• 08:05 – Consolidation of deposit copies at the Library of Congress.
• 11:15 – U.S. partial breaks with formalities.
• 19:28 – A copyright notice is not required, but...
• 21:25 – The basics of complying with existing formalities.
• 33:58 – AWF v. Goldsmith and registration of an unpublished work.
• 37:22 – Unicolors v. H&M and mixing published and unpublished works.
• 40:41 – The meaning of "published" as a question of law.
• 45:45 – The difficulty of “publication” after preemption of common law copyright.
• 50:29 – The well-intended doctrine of “limited publication."
• 53:46 – Unicolors's challenge as a result of the "limited publication" doctrine.
• 57:34 – One solution to the “publication” problem.
• 01:06:00 – Formalities and the small-claim provision created by the CASE Act.

"Lateef Mtima is a Professor of Law at the Howard University School of Law. After graduating with honors from Amherst College, Professor Mtima received his J.D. degree from Harvard Law School, where he was the co-founder and later editor-in-chief of the Harvard BlackLetter Journal." Visit Professor Mtima's website.

Show Contents

• 1:07 - Defining social justice in an IP context.
• 7:54 - Distinguishing between social justice and predatory practice
• 11:45 - How the conversation about race factors into the IPSJ discussion.
• 18:17 - The "Blurred Lines" case.
• 24:30 -  Was copyright a highly democratic statement at U.S. founding?
• 30:56 - But patent was  a different story.
• 34:05 - Cotton gin and further patent discussion.
• 36:46 - How can IPSJ be made accessible to laymen?
• 43:30 - Anti IP and the corporatist message.
• 47:49 - On trademarking offensive terms.
• 58:35 - Are contemporary politics, policy, caselaw moving toward IPSJ?
• 01:04:58 - Anti IP and progressive views.
• 01:10:28 - Idea/Expression dichotomy discussion.

O'Connell's photo recently won the Off the Clock 2021 Best in Show from American Photographic Artists (APA).  Read interview here.

Visit Eric O'Connell's website.

Contents

• 2:06 – How do you describe or think about your work?
• 4:37 – Visual anthropology
• 6:25 – German Cowboys Series
• 8:50 – Native Americans & Heavy Metal series
• 12:28 – Reactions to the German Cowboys
• 16:44 – Pandemic (parents) series
• 25:12 – How has commercial work changed?
• 30:06 – Conversations with students about rights to their work.
• 32:46 – Richard Prince Instagram Show
• 34:59 – What is a derivative work of a photograph?
• 38:07 – How much do you follow rights issues?
• 41:25 – Lars was right.
• 42:53 – Do your students intent to become professionals?
• 45:49 – The work that goes into photographs
• 53:02 – Authorship in photography

You wouldn’t think that a state entity would have the right to seize your intellectual property any more than it would have the right to seize other forms of property without due process. But it can.

Rick Allen is the CEO of Nautilus Productions in North Carolina. He spent seventeen years documenting the research and recovery work done on Blackbeard’s flagship the Queen Anne’s Revenge, after it was discovered off the North Carolina coast in 1996. When the state made infringing uses of Allen’s material, he sued, and that case Allen v. Cooper went to the U.S. Supreme Court in 2020, which affirmed that immunity barred Allen’s claim.

Kevin Madigan is Vice President, Legal Policy and Copyright Counsel at the advocacy organization Copyright Alliance in Washington D.C. He was previously Deputy Director at the Center for the Protection of Intellectual Property (CPIP) at George Mason University's Antonin Scalia Law School. 

Contents

• 1:34 - Overview of state sovereign immunity.
• 5:53 - Rick Allen background & eventual conflict with North Carolina.
• 16:21 - Why Blackbeard's Law & what about breach of contract?
• 19:32 - Why SCOTUS took Allen v. Cooper & what did we get out of it?
• 22:38 - SCOTUS seemed disappointed in its own opinion.
• 26:45 - States own IP, but enjoy immunity from infringement.
• 28:08 - Results of survey & is state infringement increasing?
• 31:57 - Anecdotal observations about state infringement.
• 35:02 - Aberration of justice to have to show mass infringement.
• 38:37 - Can have a devastating effect on creators.
• 39:55 - Are we increasing state actors' awareness of their immunity?
• 42:04 - State remedies do not really exist.
• 50:20 - Allen's takings claim.
• 52:45 - Where do things stand?
• 54:47 - Funny coincidences.
• 56:30 - Understanding the impact on Allen and all creators.
• 59:04 - Substantial investment in works.
• 01:001:58 - Copyright doesn't protect labor.
• 01:03:13 - The myth that creators will create no matter what.

As Facebook's oversight board is established, and we continue to grapple with the difficulties of social media platform moderation, I invited Dr. Katell onto the podcast to talk about the issues. 

Dr. Michael Katell is a Postdoctoral Research Associate for Data Science and Ethics in the Criminal Justice System working within the Public Policy Programme. He is a technology policy scholar and a philosopher of technology whose general concentrations include equity and social justice in digital systems and platforms. Follow him on Twitter.

Show Contents

• 00:59 - Dr. Katell’s areas of study and expertise.
• 05:34 - The Facebook oversight board.
• 10:44 - Neutrality is not an option.
• 18:38 - Social media aggravating flaws in human nature.
• 27:14 - Social media and human nature continued.
• 32:08 - Why don’t we quit social media?
• 35:53 - Will people be penalized for not using social media?
• 40:44 - Do social platforms have the power of governments?
• 45:39 - Toward a state of technological feudalism?
• 54:12 - Regulation without faith in democracy.
• 58:09 - Living in alternate realities.

In 2015, the American Law Institute announced that it would produce a Restatement of Law for U.S. Copyright. In response, many copyright advocates, as well as the Copyright Office and Congress, expressed some deep concerns with the project. Chief among these is the fact that the ALI has never in its hundred-year history issued a Restatement in any area of primarily statutory law.  See IOM blog post from January 2018.

Link to Professor Balganesh.

Link to Professor Menell.

Link to paper, Restatements of Statutory Law: The Curious Case of the Restatement of Copyright, forthcoming in a special issue of the Columbia Journal of Law & the Arts.

Episode Contents

• 58:12 - Overview of ALI and Restatements of Law
• 06:13 - Restatements have never addressed areas of primarily statutory law.
• 08:53 - Development of the 1976 Copyright Act
• 15:17 - "Why we are not opposed to the idea of a Restatement."
• 25:09 - Criticism of the project's lack of transparency.
• 31:28 - Criticism of the project's methodologies.
• 42:44 - The distribution right & shifting judicial philosophies.
• 51:50 - Rewriting copyright law without the legislature.
• 54:17 - Can the Restatement still have a good outcome?
• 01:01:43 - "the worst sausage factory"
• 01:05:24 - Hypocrisy