Exploring New Approaches to Unsettled Legal Questions

Tag: Cardozo BMI Entertainment and Media Law Competition

Modernizing Royalties: How a Retroactive Application of the CLASSICS Act is Necessary to Make Legacy Artists Whole

by David Schulman*

Prior to 2018, copyright law did not require payment of royalties for sound recordings to pre-1972 artists (or the respective copyright owner), creating a massive pay disparity between pre-1972 artists and contemporary artists who had a statutory right to receive those royalties. In 2018, Congress enacted the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society (“CLASSICS”) Act to remedy this gap in protections and payments between legacy and contemporary artists. Essentially, the CLASSICS Act ensures that pre-1972 artists are afforded copyright-like protections and liberties in line with what their contemporary peers have enjoyed for years. The question yet to be resolved is whether the Act should apply retroactively. Retroactive application of a new legal right implicates due process rights given that vested interests, particularly in previously negotiated contracts, may be negatively impacted. This Contribution argues that the CLASSICS Act should apply retroactively given its purpose and status as economic legislation. Moreover, retroactive application of the CLASSICS Act would not violate due process rights notwithstanding potential adverse effects on reliance interests because the Act meets the requisite rational basis test.

Can an Art Gallerist Own the Copyright in an Art Exhibit? Evaluating the Limiting Principles in the Copyright Act’s Definition of a Collective Work

by Michael J. Gladstone*

In copyright law, an artist does not sign away the copyright to an artwork simply by allowing the artwork to appear in an art gallery. However, where parties agree in writing that a work is a “work made for hire” and where a work is a “contribution to a collective work,” the commissioning party—and not the artist—is the copyright owner. In this Contribution, Michael Gladstone (’22) argues that in at least one case, an art gallerist could own the copyright in an artist’s work: where the work was specifically commissioned for use in a permanent art installation.

Expansion of the Copyright Act: The Inclusion of Art Created In-Part by an Artificial Intelligence Program

by Naomi Perla*

This Contribution examines whether an artist can claim copyright protection over art they created with the assistance of an artificial intelligence program. Naomi Perla (’21) argues that such works satisfy the “original work of authorship” requirement pursuant to 17 U.S.C. § 102(a), thereby granting copyright protection to the artist. The requirements of both authorship and originality are satisfied due to the artist’s creative choices that are largely reflected in the finished pieces. Moreover, the Copyright Act is meant to expand to include new works of art so that artists are consistently incentivized to create for the benefit of the public.

Fair Use Has Nothing to do with Being Fair

by Yonatan Shefa*

In the context of fair use, should courts factor moral harms into their analyses? In this Contribution, Yonatan Shefa (’19) challenges the applicability – in the context of fair use – of a recent line of research by legal academics who argue that copyright law should grant artists a degree of protection against moral harms since those protections better incentivize creation. This Contribution ultimately argues that courts must not consider moral harms in the fair use scheme absent such a directive by Congress, and that Congress would be ill-advised to effect such a change to the law.

Reconceptualizing the Registration Approach in Anticipation of the Supreme Court’s Decision in Fourth Estate

by Jonathan Wieder*

Should the Copyright Office be able to vet copyright applications before any action for copyright infringement is instituted? This term, in the upcoming case Fourth Estate, the Supreme Court will consider whether “registration” within the meaning of the United States Copyright Act merely mean that the components of the application need to be submitted to the Copyright Office (the “application” approach) or that the Copyright Office has affirmatively approved or refused the application (the “registration” approach). In this Contribution, Jonathan Wieder (’19) discusses the textual and legislative origins and consequences of each approach and the differing circuit interpretations that led to the grant of certiorari in Fourth Estate. Ultimately, this Contribution argues that the registration approach better effectuates congressional policy of vesting the Copyright Office with discretion over copyrightability and balancing protections for all parties to a copyright dispute.

No Tiny Exceptions: The Copyright Collision Between Safe Harbors and Sound Recordings

by Ari Lipsitz*

How should courts address the contradiction between the preemption rules for pre-1972 recordings in the Copyright Act and the safe harbors in the Digital Millennium Copyright Act? In this Contribution, Ari Lipsitz (’18) analyzes the statutory conflict between these provisions and examines how courts have dealt with issues under these statutes. Ultimately, this Contribution discusses the potential effects of the Second Circuit’s decision in Capitol Records v. Vimeo and proposes legislative reform and judicial interpretations to protect internet policy and copyright law.

Sampling A Song Without a License? Yeah, That’s Still Illegal

by Lee Nisson*

Should musicians be free to use samples from the work of others in their songs without having to pay for them, or should sampled artists have a right to get paid for their work? In this Contribution, Lee Nisson (’18) unpacks the copyright issues around digital sampling of music, exploring the doctrine of de minimis use. Despite the artistic merits of sampling in music, the Contribution argues that all sampling constitutes copyright infringement.

Online Databases: Fair Game for Users of Copyrighted Material

by Molly Baltimore*

Does the fair use doctrine apply to online search results that display excerpts from copyrighted materials? Molly Baltimore (’17) addresses this question based on her experience at the Cardozo BMI Moot Court Competition held in March 2016, and concludes that it should be answered in the affirmative. The fair use doctrine allows secondary users to copy or reproduce other authors’ works without being liable for copyright infringement in certain instances. Ultimately, the Contribution argues that, under an expansive reading of the fair use doctrine, searchable online databases that merely convey information about a copyrighted work can do so in a transformative manner, and without causing real economic harm.

Clarifying the Liability Threshold in Copyright Infringement Claims

by Aaron Lichter*

Is the test for copyright infringement necessarily vague and ad hoc, as Judge Learned Hand once said, or can the test be made rigorous? Based on his experience in the 2016 Cardozo BMI Moot Court Competition, Aaron Lichter (’17) explores this question by discussing the various copyright infringement tests that courts use to determine liability. Specifically, the “total concept and feel” test assesses copyright infringement based on contextual, abstract concepts rather than specific details such as plot elements or characters. The Contribution concludes that, despite its ambiguity, the “total concept and feel” test provides protections that outweigh potential problems with its vagueness.

Powered by WordPress & Theme by Anders Norén