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VIDEO: 203 Copyright Transfer Terminations: All Hype or Finally Ripe?

April 3, 2017 Leave a comment

On Thursday, March 23rd I presented a Lunch & Learn at the University of New Hampshire School of Law’s Franklin Pierce Center for Intellectual Property.

I covered 203 copyright transfer termination rights mechanics, the post-2013 response of copyright creators and copyright-industries when the first termination “window” opened for post-1977 transfers, and stakeholder and commentator forecasts about whether the anticipated termination tidal wave of destruction is more academic than real.

Copyright transfer termination permits a copyright creator to reclaim control of his or her copyright several decades after transferring the right. This applies to all copyright transfers no matter what a contract may say about a perpetual transfer. Creators cannot waive this right. But they can forfeit it if they are not careful.

In fact, some creators have already forfeited their rights if they transferred copyright in 1978 and failed to serve notice of termination by 2016. 

I offered some preliminary conclusions on the future of copyright-dependent industries in light of the 203 termination right.

Watch, listen and learn!

Intellectual property issues and profit disparities for viral social media “stars” @ SxSW

March 7, 2017 Leave a comment

thumbnail_ImP x SxSW Facebook cover promo graphics SIMONE

Join me and this extraordinary panel of experts, Michael D. Armstrong (Viacom), Devin Johnson (Uninterrupted), and panel organizer, Simone Bresi-Ando (I’mPOSSIBLE) at SxSW on Tuesday March 14th at 11 AM: Gentrifying Genius: Urban Creators Stripped Bare.

The panel will explore themes around The Fader’s article: “Black Teens Are Breaking The Internet And Seeing None Of The Profits” in a solutions-focused manner that will not only discuss the ecosystem that maintains the inequalities but also ways to protect and monetize their creative genius on social media.

Simone Bresi-Ando of I’mPOSSIBLE explains:

Black and brown youth are missing out on fruitful and ultimately life changing opportunities and rewards from their intellectual property which remains wildly popular but unpaid and uncredited.

Intellectual Property and Social Media

thumbnail_ImP x SxSW 2017 panelist promo INSTAGRAM graphic PROF TONYA EVANSI will adjust the frame of reference by explaining what intellectual property is, how rights are created, what rights creators control and what they give up when they opt-in to social media platforms, and how creators of color, in particular, can better navigate disparities in what I call the “post-to-profit” pipeline.

This disparity, of course, is not new. Similar misappropriation pervades America’s history with creators of color. In the cinematic suspense phenomenon Get Out, Jordan Peele goes a step further beyond cultural appropriation to examine the ultimate misappropriation of black bodies themselves, genius and all.

This will be a rich, engaging, dynamic conversation. Hope to see you there!

Shirley Caesar goes from viral Internet sensation to You Name It, LLC trademark applicant

January 16, 2017 Leave a comment

shirley_caesar_tmapp

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

Prof. Evans to present WIP at 10th Annual Lutie Lytle Conference

July 8, 2016 Leave a comment

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 DamagesCopyright 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 PDF iconHistory of the Program. Since the Workshop began, its participants have published more than 29 books, 44 book chapters, and 500 articles (PDF iconbibliography 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 …]

 

Evans places article that explores copyright termination & estate planning with W. Va. Law Review

May 4, 2016 Leave a comment

Statutory Heirs Apparent?: Reclaiming Copyright in the Age of Author-Controlled, Author-Benefiting Transfers, 119 W. Va. Law Rev. __ (2016).

will-3This 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.

contracts_penAlthough 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.

170px-Copyright_svgThe 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.

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.

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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

January 22, 2016 Leave a comment

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.

intellectual_property_transferThe 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.

More information about Professor Tonya M. Evans

More details about WIPIP 2016

 

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