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Professor Evans’ scholarship in line with DOC’s latest reccs re: copyright statutory damages, remixes

February 12, 2016 Leave a comment

iptf_logosThe 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 DamagesCopyright 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:

  1. the legal framework for the creation of remixes;
  2. the relevance and scope of the first sale doctrine in the digital environment; and
  3. 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:

  1. 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.
  2. 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).
  3. 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.

copyrightsymbol_lock

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.

 

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Evans chapter on copyright appears in ‘Hip Hop and The Law’ anthology pub’d by Carolina Academic Press

July 26, 2015 Leave a comment

I am excited to announce the official publication of the anthology, Hip Hop & the Law, edited by the late Pamela Bridgewater (formerly a professor at American University School of Law), andré douglas pond cummings (Vice Dean and Professor of Law at Indiana Tech Law School), and Donald F. Tibbs (Associate Professor at the Drexel University School of Law).

I am honored that my contribution,  Sampling, Looping and Mashing … Oh My! How Hip Hop Music is Scratching More Than the Surface of Copyright Law“, appears in this formidable collection of essential reflections by many of today’s leading critical thinkers. From professors, to practitioners, to creatives, Hip Hop and the Law curates a host of diverse voices to analyze and assess the interdisciplinary intersection of American jurisprudence and hip hop music and culture.

bridgewater coverWhat is important to understanding American law? What is important to understanding hip hop? Wide swaths of renowned academics, practitioners, commentators, and performance artists have answered these two questions independently. And although understanding both depends upon the same intellectual enterprise, textual analysis of narrative storytelling, somehow their intersection has escaped critical reflection.

Hip Hop and the Law merges the two cultural giants of law and rap music and demonstrates their relationship at the convergence of Legal Consciousness, Politics, Hip Hop Studies, and American Law.

No matter what your role or level of experience with law or hip hop, this book is a sound resource for learning, discussing, and teaching the nuances of their relationship. Topics include Critical Race Theory, Crime and Justice, Mass Incarceration, Gender, and American Law: including Corporate Law, Intellectual Property, Constitutional Law, and Real Property Law.

About Hip Hop & the Law published by Carolina Academic Press

Marvin Gaye Estate Takes Off Boxing Gloves, New Claims against Thicke, EMI

October 30, 2013 Leave a comment

Source: HollywoodReporter.com “Exclusive”

After Robin Thicke and his Blurred Lines cohorts filed a declaratory law suit against the Marvin Gaye estate to assert that his summer sensation Blurred Lines did not infringe Gaye’s copyright, the lines of communication between Thicke and the Gaye estate were more than blurred, they were fractured. Now it seems they’re severed completely and the only communication coming from either camp is between a serious cadre of lawyers.

thicke_gaye_recordmashupThe Gaye estate has taken off the proverbial boxing gloves in a full-out assault to protect Gaye’s copyrights. Yes, plural.

Marvin Gaye’s family is responding in a major way to Robin Thicke’s lawsuit claiming that “Blurred Lines” wasn’t stolen from Gaye’s “Got to Give It Up.”

On Wednesday, the family went nuclear with counterclaims that allege that Thicke stole the summer mega-hit and also committed copyright infringement on Gaye’s “After the Dance” to create his song, “Love After War.” What’s more, the new legal papers obtained by The Hollywood Reporter suggest that Thicke’s “Marvin Gaye fixation” extends further to more songs in the Thicke repertoire.

Read the full article at HollywoodReporter.com

Follow me @IPProfEvans

Blurred Copyright Lines Between Robin Thicke’s Tune and Marvin Gaye’s Estate?

August 27, 2013 Leave a comment

Billboard.com reported on August 15, 2013 that Robin Thicke, Pharrell Williams and Clifford Harris, Jr. (aka T.I.) filed a peremptory lawsuit in California federal court against Marvin Gaye’s family and Bridgeport Music, which owns some of Funkadelic’s compositions. At issue are complaints about similarities between “Blurred Lines” and Gaye’s “Got To Give it Up”.

Photo appears at potholesinmyblogIn the trio’s lawsuit of Williams, Thicke & Harris v. Bridgeport Music, Gaye et al., they argued: “Plaintiffs, who have the utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies, reluctantly file this action in the face of multiple adverse claims from alleged successors in interest to those artists. Defendants continue to insist that plaintiffs’ massively successful composition, ‘Blurred Lines,’ copies ‘their’ compositions.”

Billboard.com reports further on August 23rd that the defendants rejected a six-figure settlement offer that came shortly after the lawsuit was filed:

“According to sources knowledgeable with the lawsuit, the settlement offer came after Frankie Christian Gaye, Marvin Gaye III and Nona Marvisa Gaye accused Thicke’s “Blurred Lines” hit single of plagiarizing “Got To Give it Up,” written and composed by Marvin Gaye, who died in 1984.”

In the court of public opinion, many fans of both artists pick up the similarities. The legal question is whether similarities are “substantially” so as a matter of law and whether the trio copied from the original unlawfully.

Only time will tell. Most of these cases settle out of court. But in light of the bright line drawn in the sand by Thicke and his co-composers and the value of Marvin Gaye’s copyrights and family’s reaction both to the song and the lawsuit, this is just the type of suit that could actually play out in the courtroom.

What do you think about the song? Similar? Substantially so? Check out the video mashup and share your two cents in the comments section:

Link to the video mashup of Marvin Gaye & Robin Thicke at Vimeo.com

UPDATE 10/30/2013: New information about the legal wrangling between Thicke et al and the Gaye Estate

*Thanks to C. Zittle and T. Danon from my Copyright & Trademark class for this Hot Topic*

Olympic champ Lochte v. Rapper Eiht?? The trademark tug of war over JEAH! [SMH]

August 20, 2012 Leave a comment

So you won’t often see me use TMZ as a viable source for my blog posts (especially when they misstate in the title the legal issue as one about copyright when it really involves trademark … but I digress [click here to learn the difference between copyright and trademark]). I just read the TMZ blog post about Ryan Lochte’s attempt to register his purported catch phrase “JEAH!” (like “YEAH” but with a J … but again, I digress).

So here’s TMZ’s explanation of the intellectual property hoopla between Lochte and Eiht:

“U.S. Olympic hero Ryan Lochte might have an unexpected speed bump on his way to trademarking the phrase “Jeah!”`in the form of 90s rap star MC Eiht, who claims the phrase was his long before it was Lochte’s.

Eiht tells TMZ he coined the phrase back in 1988 and is insulted to hear Lochte is trying to claim it as his own now. Eiht tells us, “Why try and trademark something his ass didn’t even create? I am mad that he isn’t giving me proper recognition for taking my saying. He is just disrespectful.”

[**blink blink** um … okay … not exactly the type of legal theory I teach in my class but **shrug**]

Read the full article at: http://www.tmz.com/2012/08/18/ryan-lochte-mc-eiht-jeah-copyright/#ixzz242WrTdPJ

UPDATE: Widener Law’s Entertainment Law Students Reflect on Skills & the Law

April 9, 2012 Leave a comment

Source: Harrisburg Correspondent Erica Scavone (Spring 2012) law.widener.edu

Students from "The Dumas Firm" in class exercise

Now that the semester is quickly coming to a close, my entertainment law students reflect in a recent interview on their experiences. They note the skills they’ve learned and the legal doctrine they’ve mastered during the process; from privacy to piracy to a “virtual practice” and everything in between:

“Arrielle Millstein of wRap JhAM Associates says, “Professor Evans introducing our Entertainment Law class to blogging on legal topics has opened my eyes. With the state of the job market, applicants need a beefed up resume to even get an interview, I think that Professor Evans really provided us with the knowledge and experience on how to create and ‘market’ ourselves through an effective blog allowing future employers prior to interviews to know that we know and keep up with a specific area of law.” Read more…

Evans’ Copyright & Music Sampling article published by Fordham IPJ

July 21, 2011 Leave a comment

Professor Evans’ article Sampling, Looping & Mashing … OH MY! How Hip-Hop is Scratching More Than the Surface of Copyright Law was recently published by the Fordham Intellectual Property, Media & Entertainment Law Journal. Use the link below to download the PDF.

For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition.

Hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without the permission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music.

Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits. The per se infringement rule articulated in the leading digital sampling case, Bridgeport v. Dimension Films, as compared to a recent decision with analogous facts but an opposite outcome under a traditional infringement analysis in Saregama India Ltd. v.Mosley, is but one stark example.

This article examines the impact of copyright law on music creation both historically and currently. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship.

Read the article abstract & download the full article

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