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 …]
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.
Prof. Evans to present paper at #WIPIP2016 Colloquium on impact of copyright transfer terminations on loan-outs & other gratuitous transfers
On February 18-19, 2016 the University of Washington Law School and Center for Advanced Study & Research on Innovation Policy (CASRIP) will host the annual Works-in-Progress Intellectual Property (WIPIP) Colloquium.
The organizers selected Professor Evans to present her work-in-progress, Reclaiming Copyright in the Age of Celebrity Loan-Outs & Gratuitous Transfers, at this esteemed IP law conference.
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.
In this Article, Professor Evans focuses on what has actually transpired since that trigger date. In addition, she considers how to reconcile the probate and nonprobate dispositions of copyright termination interests in a way that best honors an author’s testamentary intent given what we can now glean in fact from the post-1977 termination cases just starting to make their way through the court system.
WIPIP is one of the largest academic conferences for U.S. IP academics fostering robust and productive discussion of intellectual property law and policy scholarship. The Colloquium provides intellectual property scholars with a forum to present their academic works-in-progress and receive early feedback from their colleagues.
That same weekend, CASRIP will also host The Forum will be held on February 18, 2016 at the Hotel Deca. The IV Asia Pacific IP Forum hosted by CASRIP will bring together founding members from UW, UC Berkeley, Waseda University, Hokkaido University, Seoul National University, Renmin University and National Taiwan University, as well as leading Pacific Rim scholars, practitioners, judges and policymakers, to discuss comparative transnational IP law in practice.
Evans chapter on copyright appears in ‘Hip Hop and The Law’ anthology pub’d by Carolina Academic Press
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.
What 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.
Rachel Dolezal’s art: infringement, plagiarism, or fair appropriation of Turner’s work? by Professor Tonya M. Evans, Esq. is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
Follow me @IPProfEvans
The country is, unfortunately, transfixed on and fascinated and/or otherwise perplexed by the former NAACP Spokane Chapter president Rachel Dolezal controversy surrounding her declarations that she is black. Her statements and assertions include misrepresenting on the Chapter’s Facebook Page a black man as her father when, in fact, both of her parents are white.
My interest in Dolezal’s story is not in the racial identity and misrepresentation morass. I’ll leave that to the Twitterverse (#RachelDolezal #AskRachel) and media. But the recent copyright infringement question about the origins of some of her artwork caught my eye.
As HuffingtonPost arts writer Priscilla Frank reported today, Dolezal, … is also an award-winning Mixed Media Artist, according to her art blog. But questions have been raised about whether Dolezal actually created all of her artwork or whether she misappropriated, in at least one instance, the work of another and presented it as her own.
Infringement? No. But there is a strong argument for plagiarism. Review the images and explanations below to understand why and share your thoughts about the issue.
“Rachel Dolezal is an award-winning Mixed Media Artist with over 20 exhibitions in 13 states, internationally, and at the United Nations Headquarters. Dolezal completed her Master of Fine Arts at Howard University, where she majored in experimental studio and minored in sculpture. She has over 10 years experience in community development, human rights education, and intercultural negotiations. She is currently an Art Instructor at North Idaho College, Adjunct Professor of African American Culture at Eastern Washington University, Advisor for the NIC Black Student Association, speaker, education consultant, and exhibiting artist.”
A Comparison of the Works
Below is the image under scrutiny that Dolezal claims as her original, copyrighted work:
Below is Turner’s “Slave Ship”:
Twitter critic, Jolie Adams, created a side-by-side on Twitter in this post:
In my humble opinion, they appear nearly identical. Dolezal’s work seems to be a tighter POV of Turner’s painting, with de minimis modifications of color and tone. Commenters knowledgeable about Turner’s work immediately questioned Dolezal’s claims that she created the work presumably without “inspiration”.
But this isn’t a case of copyright infringement. And here’s why.