Professor Evans will present her latest work-in-progress, Safer Harbor from Statutory Damages for Mea Culpa Infringers: Remixing the DOC White Paper, at the 2016 Tenth Annual Lutie Lytle Black Women Law Faculty Writing Workshop.
The paper, slated for fall placement, titled “Safer Harbor” from Statutory Damages for Mea Culpa Infringers: Remixing the DOC White Paper, is a follow up to her article, Safe Harbor for Innocent Infringers in the 21st Century. The former article argued that under certain circumstances, “innocent” users should be protected from liability in the same way that Internet Service Providers are protected under the Digital Millennium Copyright Act’s safe harbor provisions. In Safer Harbor, Professor Evans approaches the same topic from the damages-instead of the liability-phase.
In Safer Harbor, Professor Evans offers a legislative fix to the statutory damages section that would inject greater balance, fairness and uniformity into the damages assessment.
The Department of Commerce‘s Internet Policy Task Force recently released its much-anticipated report on statutory damages, remixes, and the first sale doctrine. The report, titled White Paper on Remixes, First Sale, and Statutory Damages: Copyright Policy, Creativity, and Innovation in the Digital Economy (The IPTF Report), recommended numerous important and long overdue changes to the Copyright Act.
In light the IPTF Report, Professor Evans analyzes and incorporates the Report’s findings and recommendations against the backdrop of her own recommended fixes to copyright law.
About the Lutie Lytle Conference
The Lutie A. Lytle Black Women Law Faculty Writing Workshop (the “Lytle Workshop”) is an annual gathering of current and aspiring black women law faculty. While the primary focus is on legal scholarship, this event is important for networking, bonding, and getting refreshed. Read more about the History of the Program. Since the Workshop began, its participants have published more than 29 books, 44 book chapters, and 500 articles (bibliography of works authored by workshop attendees as of 2016).
The 2016 gathering, which will be the historic and commemorative 10thAnnual Workshop, will be hosted by the University of Iowa College of Law on July 7-10, 2016, in Iowa City. A writing retreat will take place before and after the main Workshop on July 6-7 and 10-12, 2016. [More information …]
I invite you to register for Wednesday’s webinar, hosted by the NBA IP Law Section. Registration is free for all IP Section members, and $30 for non-members.
IP Law Review – A Survey of Recent Developments in Patent, Trademark, and Trade Secret Law.
Date: Wednesday, June 8, 2016
Follow live tweet at #NBAIPLaw
- Tonya Evans (Widener University Commonwealth Law School) – Moderator
- Darrell Mottley (Banner Witcoff)
- Shontavia Johnson (Drake University Law School)
- Kevin Jordan (JP Morgan Chase)
Summary – Our panelists will discuss a variety of hot topics and recent developments in patent, trademark, and trade secret law, including:
- The internet of things as an emerging technology/industry, and related IP and regulatory issues
- Intersection between the First Amendment and Section 2(a) of the Lanham Act regarding registration of immoral, scandalous, or disparaging trademarks, including the impact of trademark cases
- Overview of trade secret law and its viability as an alternative means of IP protection
CLE Info: The NBA IP Law Section is looking into obtaining CLE accreditation in the following jurisdictions: CA, GA, IL, NY, TX, and VA. For questions regarding CLE accreditation, please contact Bill Barrow (wbarrow[at]mayerbrown.com).
Cost: This webinar is free for NBA IP Law Section members and costs $30 (plus processing fees) for non-members.
I am excited to announce that I accepted an invitation to teach Wills & Trusts at UNLV William S. Boyd School of Law during the summer session.
This course covers intestate succession; testamentary capacity; execution, revocation, and component parts of wills; interpretation of wills; will substitutes; creation and interpretation of inter vivos and testamentary trusts; powers of appointment; professional standards and fiduciary responsibility. I will also lightly touch upon estate and trust administration.
Although this is not a course on document drafting, we will address ethical and practical considerations in drafting wills and trusts. The question we explore for every case is what the attorney could have done, should have done, or should not have done, in order to avoid litigation. Both the course and casebook, Contemporary Trusts and Estates (Susan Gary et al. , 2d. Aspen), approach the subject matter from an experiential, practical point of view to actively engage students in the material as practicing attorneys rather than law students.
Statutory Heirs Apparent?: Reclaiming Copyright in the Age of Author-Controlled, Author-Benefiting Transfers, 119 W. Va. Law Rev. __ (2016).
This Article explores the intersection and disconnect between copyright law and estates law when a copyright owner dies before having the opportunity to exercise her termination right of an inter vivos copyright transfer. Specifically, I explore the impact of a statutory heir’s copyright transfer termination right on the original author’s testamentary freedom to the extent the decedent’s nonprobate disposition of assets is contrary to the “statutory will” disposition found in the Copyright Act.
Although copyright transfers made by will are not subject to a termination right, no such exception is made for an author’s lifetime transfers into vehicles controlled by the author. Examples of such transfers include those made into a performing artist’s loan-out company or a songwriter’s lifetime transfer of musical composition and sound recording copyrights into a self-settled irrevocable trust or charitable foundation.
The practical effect is that an heir (defined by the Act as a spouse, child or grandchild) who inherits the right to terminate any lifetime copyright transfer (including those just described), may exercise that right and successfully reclaim copyright ownership against the decedent’s intent to transfer copyright ownership at death to someone or some entity other than that statutorily prescribed heir.
I argue the termination right was intended to protect authors from being saddled for the full copyright term with bad deals made early in their careers when they had little, if any, bargaining power. The right was not intended to prevent authors from advantageous lifetime transfers into vehicles controlled by the author for prudent business, tax and estate planning reasons.
Many scholars, practitioners, and copyright transferees in the entertainment business surmised the likely impact of the first reclamation trigger date of January 1, 2013 under §203 of the 1976 Copyright Act on post-1977 transfer terminations. Some also expressed concern with the apparent distinction between, and treatment of, transfers by will and nonprobate transfers. This article focuses on what has actually transpired since that trigger date.
In addition, the article focuses on what might be done going forward to reconcile the probate and nonprobate disposition of copyrights in a way that best honors an author’s testamentary intent given what we now know from cases starting to make their way through the court system.
Source: Xiomara Blanco @zeeohmara
The shocking news of Prince’s death has fans, new and old, turning to their Spotify, Pandora and Apple Music apps, only to find them barren of his hits. If you don’t feel like driving to your local record store or spending money on iTunes, unfortunately, your options for listening to His Royal Badness are limited.
But you have options. And they’re LEGAL.
Xiomara from CNET gives us some other ways to listen, including Tidal, which is the exclusive streaming music service with Prince content.
Honor Prince’s legacy, his legend, his mastery. Access the content LEGALLY. He’d want that for ALL artists, BTW. Just a thought. Here’s another thought. Buy a physical copy.
For more on the copyright issues and Prince’s zealous control over his songs, read Why it’s tough to find Prince’s songs online – and other musicians are thankful by Professor Shontavia Johnson.
#RestinPurple #dovescry #supportartists
I am honored and excited to welcome my dear friend Reneé Brown to Widener Law Commonwealth to deliver the final Black Law Students Association Fireside Chat where students connect with high level executives in professional sports.
Reneé and I met some years ago at a Black Women in Sport Foundation banquet. She was being honored and I, known then as “Lawyer by Day, Poet by Night”, performed my signature piece, Find Your Own Shine.
Reneé, a huge admirer of spoken word and of tennis (which is great for a former pro tennis player like me, of course), loved the performance and we hit it off immediately. The rest, as they say, is history!
Reneé is extremely accomplished, authentic, generous, tough, funny, warm and kind. My students are extremely fortunate that Reneé is giving of her time to participate in this informal yet engaging presentation and chat.
Congratulations to BLSA for a stellar fireside chat lineup this year.
About Reneé M. Brown
Reneé Brown, WNBA Chief of Basketball Operations and Player Relations, oversees all player scouting and acquisition for the league, as well as the administration of player-related policies and programs. In addition, she is responsible for overseeing the policies for all on-court basketball operations.
Prior to being promoted to her current position, Brown served as WNBA Vice President and Senior Director. She joined the WNBA in September 1996 as Director of Player Personnel.
Brown also plays an integral role in USA Basketball, currently serving on both the Steering and Selection Committees. She has chaired the USA Basketball Women’s Senior National Team Selection Committee and served on the Executive Committee for USA Basketball for three consecutive quadrants, from 2000 to 2012. The U.S. Women’s Senior National Team won Olympic gold medals at the conclusion of each of Brown’s tenures, in 2004, 2008 and 2012. She also served as Vice President for the Senior Women’s Programs from 2000 to 2004.
During the 1995-96 season, Brown served as an assistant coach to Tara VanDerveer for the gold medal-winning USA Basketball Women’s National Team in Colorado Springs, where she helped with game preparation, player conditioning and scouting.
Brown served as an assistant coach for women’s basketball teams at the University of Kansas, Stanford University, and San Jose State University. During her tenure at Kansas, she helped guide the Jayhawks to an 88-31 record, four trips to the NCAA Tournament and a Big Eight Conference title. Her Stanford team won the NCAA tournament in 1990 and earned a trip to the Final Four in 1991.
Brown holds a bachelor’s degree and master’s degree in education, both from UNLV.
Professor Evans’ scholarship in line with DOC’s latest reccs re: copyright statutory damages, remixes
The Department of Commerce‘s Internet Policy Task Force recently released its much-anticipated report on statutory damages, remixes, and the first sale doctrine. The report, titled White Paper on Remixes, First Sale, and Statutory Damages: Copyright Policy, Creativity, and Innovation in the Digital Economy (The IPTF Report), recommended numerous important and long overdue changes to the Copyright Act. Those recommendations focus on three key areas:
- the legal framework for the creation of remixes;
- the relevance and scope of the first sale doctrine in the digital environment; and
- the application of statutory damages in the context of individual file-sharers and secondary liability for large-scale online infringement. (p. iii, The IPTF Report).
The Task Force Report made three recommendations overall:
- To enact a new section 504 of the Copyright Act that lists factors for courts and juries to consider when determining the amount of a statutory damages award.
- To remove the “notice bar” to the Innocent Infringer “defense” and instead treat notice as merely a factor. This change is especially important to protect a good faith, mistaken user (who I refer to as a “mea culpa infringer” in Safe Harbor for the Innocent Infringer in the Digital Age).
- To give courts the discretion to assess statutory damages in ways other than a strict per-work basis in cases involving non-willful secondary liability for online services offering a large number of works.
I write primarily about the impact of new technologies and new forms of artistic expression on copyright law. Therefore, I am excited and encouraged to see that my assertions and recommendations in Safe Harbor for the Innocent Infringer in the Digital Age (50 Willamette L. Rev. 1 (2013)), Reverse Engineering IP (17 Marquette Intell. Prop. L. Rev. 61 (2013)), and Sampling, Looping & Mashing … Oh MY! (21 Fordham Intell. Prop. Media & Ent. L.J. 843 (2011)), are consistent with the Task Force’s approach to these critical areas in need of substantive reform.
For example, in Safe Harbor for the Innocent Infringer in the Digital Age I explored the role of the innocent infringer archetype historically and in the digital age. I also highlighted the tension between a “20th century” copyright regime and “21st century” user expectations regarding generally accepted online uses of copyrighted materials. Those customary uses reflect the efficient use of digital technologies and the Internet. Finally, I offered a legislative fix in the form of “safe harbor” from liability for certain innocent infringers akin to the type of protection afforded online service providers.
In that article, I argued that such an exemption seems not only more efficient but also more just in the online environment where unwitting infringement for the average copyright consumer is far easier than ever to commit, extremely difficult to police, and often causes little, if any, real market harm.
In a current work-in-progress titled “Safer Harbor” from Statutory Damages for Mea Culpa Infringers: Remixing the DOC White Paper, I approach the topic from the damages-instead of the liability-phase.
I offer a legislative fix to the statutory damages section that would inject greater balance, fairness and uniformity into the damages assessment. I began writing this article in 2014 but in light the IPTF Report, I intend to analyze and incorporate the Report’s findings and recommendations against the backdrop of my own recommended fixes to copyright law.