I am thrilled to announce that I will join the tenured faculty of The University of New Hampshire School of Law this fall as a Full Professor.
UNH Law, formerly Franklin Pierce Law Center, is a leader in intellectual property law, social justice, sports law, and innovative practical preparation and is ranked 82nd by US News & World Report. It is also home to the preeminent Franklin Pierce Center for Intellectual Property (FPCIP) and the UNH Sports and Entertainment Law Institute (SELI).
I look forward to serving as an integral part of both FPCIP and SELI, and I will also continue my work in the areas of Trusts & Estates and Inclusion & Equity.
I am excited to announce that my hiring class includes Ryan Vacca. He is the David L. Brennan Professor of Law at The University of Akron School of Law, where he also serves as the Interim Co-Dean and Director of the Center for Intellectual Property Law & Technology.
My departure from Widener Law Commonwealth is bittersweet; I have loved my time here! WLC has been a tremendous place to evolve as an educator and scholar in the legal academy while surrounded by wonderful, supportive colleagues and inspired by fantastic students (whom I will miss most of all!). Thank you for the well wishes I’ve already received.
Article Alert: Statutory Heirs Apparent explores copyright termination right succession in the entertainment industry
My latest article, Statutory Heirs Apparent: Reclaiming Copyright in the Age of Author-Controlled, Author-Benefiting Transfers (119 W. Va. L. Rev 297 (2016)), explores the intersectionality of estate succession laws and copyright and the unintended conflict between a deceased author’s testamentary freedom and the right of the decedent’s statutory heirs to terminate the decedent author’s lifetime transfers.
A number of notable songwriters have successfully reclaimed control over their copyrights from recording companies: Bruce Springstein, Loretta Lynn, Tom Petty, and an original “Village People” member, Victor Willis, for that perennial Karaoke favorite “YMCA”. They all lived long enough to see the copyright termination window open for their respective rights.
However, some authors are not so fortunate.
Case in point: The Ninth Circuit recently heard Ray Charles Foundation v. Robinson, 795 F.3d 1109 (9th Cir. 2015). That case presents facts analogous to the problem the proposed amendment seeks to resolve; that is, when a statutory heir asserts a termination interest clearly contrary to the decedent author’s wishes.
In that case, Charles named his private charitable foundation as sole heir of his rights and recipient of his royalties during his life and thereafter. In fact, the Foundation is totally funded by the royalties and is prohibited from receiving any other means of support. Separately, he negotiated with his children (all 12 of them) to waive any right to his estate in exchange for half million dollars into an irrevocable trust for each. He died before the termination window opened. The perfect storm. Read more…
Perhaps it’s surprising that Pastor Shirley Caesar never registered her name as a source-indicating mark before now. Thankfully, trademark rights attach even to unregistered marks [NOLO.com] used in connection with sale of goods or, in her case, entertainment services as a world-renowned gospel recording artist.
And now after the “U Name It” Challenge [BET.com w/ sound] became a thing and gave new meaning to the phrase “going viral” recently, Caesar and her legal team realized that securing trademark rights in her name is as important as protecting her copyright interests.
About the “You Name It” Viral Clip
The video clip making viral rounds on social media is an excerpt from a live performance of “Hold My Mule.” The legendary gospel sermon has been edited to revolve around Caesar’s chant, “beans, greens, potatoes, tomatoes,” in response to the question, “Grandma, what are you cooking for Thanksgiving?” – BET.com
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.
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.