Publications

Recent Publications and Works-in-Progress

Last Updated: July 11, 2017

[Professor Evans SSRN Page]

Publications

User “Safer Harbor” from Statutory Damages: Remixing the DOC’s IP Task Force White Paper54 San Diego L. Rev. 1 (2017).

This article is Part II of my two-part Innocent Infringer series. In Part I, Safe Harbor for the Innocent Infringer in the Digital Age (Safe Harbor), I argued that certain classes of direct innocent infringers of copyright—namely accidental and mea culpa infringers—should be afforded safe harbor from liability in light of current accepted online practices of users deemed essential for the proper functioning and progress of the Internet and digital technology. I offered a statutory amendment to section 512 of the Copyright Act that applies specifically to direct infringers and protects them in ways similar to current protection of online service providers.

In Safer Harbor, I approach the same topic from the damages phase and argue a user’s actual or constructive knowledge of a copyright holder’s rights could be a factor in determining whether the holder’s damages award should be limited to the currently discretionary minimum award. Knowledge could even serve to create a strong presumption of liability. But notice alone should not serve as a complete bar to a defendant’s ability to assert an innocent infringement defense that triggers a minimum statutory damage award. This approach seems fairer and more just especially given that copyright is a strict liability offense and exposes even the ordinary, low level infringer to damage awards questioned by commentators and judges alike as egregious and, in some cases, arguably unconstitutional.

Accordingly, I argue that in lieu of (or in addition to) my user safe harbor proposal in Safe Harbor, Congress should adopt a more meaningful reduced statutory damage award under 504(c) for certain classes of noncommercial infringement. This proposal could apply in the innocent infringement context when user safe harbor is not applied for technically infringing activity deemed socially beneficial and/or technologically desirable to support progress. In light of the Department of Commerce’s 2016 Internet Policy Task Force report on statutory damages and the Copyright Office Section 512 Roundtables on the same topic, I discuss the report’s findings, as well as Canada’s approach to user rights for illustrative purposes, against the backdrop of my own recommendations.

Statutory Heirs Apparent?: Reclaiming Copyright in the Age of Author-Controlled, Author-Benefiting Transfers, 119 W. Va. L. Rev. 297 (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 freedom of testation 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.

 

Safe Harbor for the Innocent Infringer in the Digital Age, 50 Willamette L. Rev. 1 (2013)

The primary goal of this Article is three-fold: (1) to explore the role of the innocent infringer archetype historically and in the digital age; (2) to highlight the tension between customary and generally accepted online uses and copyright law that compromise efficient use of technology and progress of the digital technologies, the Internet, and society at large; and (3) to offer a legislative fix in the form of safe harbor for direct innocent infringers. 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, cognizable market harm.

Safe Harbor was judged one of the best law review articles related to entertainment, publishing and/or the arts published in the 2013-14 academic publishing cycle and selected for inclusion in the 2014 edition of the Entertainment, Publishing and the Arts Handbook, an anthology published annually by Thomson Reuters (West).

Reverse Engineering IP, 17 Marquette Intell. Prop. L. Rev. 61 (2013)

This Article examines the role that “reverse engineering” and other policies and doctrines have played in the inventive context to protect the “space” such second-generation innovators require to build upon and around existing inventions that justify the patent monopoly. Further, this Article explores how patent policy better protects and encourages that space than does copyright, theoretically and in practice.

Sampling, Looping and Mashing … Oh My! How Hip Hop Music is Scratching More Than the Surface of Copyright Law21 Fordham Intell. Prop. Media & Ent. L.J. 843 (2011)

This article examines the deleterious impact of copyright law on music creation. 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.

Works-In-Progress

  • Cowabunga! Surfing the U.S./Canadian Copyright Border (Spring 2018)
  • Transforming Judicial Interpretation of Transformative Fair Use
  • The Expression Protection Question: Reforming the Law of Ideas

Books

Tonya M. Evans, Sampling, Looping and Mashing … Oh My! How Hip Hop is Scratching More than the Surface of Copyrightin Hip Hop and the Law (Bridgewater, cummings, Donald F. Tibbs eds., Carolina Academic Press 2015).This critical and essential anthology is edited by Professors Pamela Bridgewater, andré douglas pond cummings, Donald F. Tibbs and includes an introductory piece, “The Evolution of Hip Hip” by Cornell West.

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Contracts Companion for Writers (Legal Write Publications 2007)*

buy_amazon_orangeCopyright Companion for Writers (Legal Write Publications 2007)*

Literary Law Guide for Authors: Copyright, Trademark and Contracts in buy_amazon_orangePlain Language (Legal Write Publications 2005)*

*Writer’s Digest Book Club selection

 Other Publications

  • Op-Ed Essay: Free Access Equals a Free Ride, published by Wilmington News Journal during its Annual Constitution Day coverage in association with Widener University School of Law’s annual Constitution Day Program (Sept. 14, 2009).
  • A Call to Action: The Time Has Come to Revisit and Reform the Law of Ideas, IP. L. Newsl. (PBA Intellectual Property Law Section) Winter 2008 at 9.
  • Comment, In the Title IX Race Toward Gender Equity, The Black Female Athlete is Left to Finish Last: The Lack of Access for the “Invisible Woman,” 42 How. L.J. 105 (1998).
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