As readers of this blog and my book, Unfair to Genius, must know, I am fascinated by the ways in which developments in the law sometimes shape and are sometimes shaped by developments in the arts. They will also know that I have a weakness for a good story about the colorful luminaries and rapscallions that populated the arts and the copyright industries in the early 20th Century. Professor Robert Spoo’s Without Copyrights: Piracy, Publishing and the Public Domain, just published by Oxford University Press, offers a heaping helping of just the stuff I crave.



dosI still have a Proustian experience every time I take my old vinyl copies of The Who Live at Leeds or The Mothers-Fillmore East June 1971 off the shelf.  It is not just fond memories of seeing those bands perform back in the early 70s that come flooding back.  The artless covers and handwritten labels on those official releases were Pete Townsend and Frank Zappa’s ironic acknowledgements of the then-raging market in bootleg concert recordings, and they transport me back to a time when there was no bigger thrill than getting an invitation to listen to the latest genuine, sort of speak, bootleg.  (As a future respectable representative of copyright owners, I, of course, would not have trafficked in such contraband myself.) I had some of the same rush reading Alex  Sayf Cummings’s Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century (Oxford Univ. Press), which places the concert bootleggers of my youth somewhere near the middle of a legal and historical continuum that stretches from jazz buffs of the 1930s who dubbed out-of-print recordings, to the DJs who created hip-hop mix tapes of the 1980s and 90s, to international CD counterfeiting rings of recent years. (more…)


The over-arching economic problem that dogs all of American patent and copyright law is one of demarcation—when is the marginal utility of  an incentive provided to one innovator “to promote progress in science and the useful arts” outweighed by the burden it places on the creativity and economic freedom of everyone else and is therefore counterproductive?  In The Knockoff Economy: How Imitation Sparks Innovation (Oxford Univ. Press), Law Professors Kal Raustiala of UCLA and Christopher Sprigman of the University of Virginia attack this problem from a novel angle, examining  fields of creative endeavor that seemingly flourish in the absence of patent or copyright protection and in the face of rampant and easy copying—fields such as couture fashion, haute cuisine, stand-up comedy, high finance, and professional (and big-time college) football.  Their approach, more anecdotal and even dishy than empirically rigorous, results in a study that is timely, enjoyable, original, and informative, though it falls short of forming a rock-solid foundation for the broad generalizations about IP law and its application to other fields that the authors seek to draw.



For more than a generation, learned monographs have poured forth from constitutional theorists who bring insights from such diverse realms as literary criticism, philosophy, linguistics, and political economy to bear on the problem of finding consistent principles for deciding constitutional disputes.  In Rethinking Patent Law, Professor Robin Feldman of the University of California’s Hastings College of Law applies similar analytic tools to patent law.  Like the constitutional theorists, Professor Feldman succeeds in illuminating aspects of the subject area that are seldom noticed by judges, legislators, and practitioners, and offers  ideas that could be useful in deciding some of the hardest cases. But also like the constitutional theorists, she fails to offer a theory having general applicability over a broad swath of her subject area. (more…)


THIS POST CONTAINS NO SPOILERS!                                                                                                                                      

A flawed, fallen hero seeking redemption, a sultry Cuban femme fatale, a corrupt cop, alternately suave and brutish, a mysterious disappearance, double-crosses, diplomatic intrigue, and the ultimate vindication of authors’ termination rights under Section 304(c)(4) of the Copyright Act—these are the things from which copyright lawyers’ dreams, and Paul Goldstein’s “legal thriller” Havana Requiem (Farrar, Straus and Giroux) , are made.






Under the Copyright Act “copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression.”   This simple formulation is never more problematic than when applied to the highly collaborative, highly derivative, and oftentimes hugely expensive and risky art and craft of film.  Who is the author?  What counts as originality entitled to protection?  What is being expressed?  When does a filmmaker use ideas available to all and when does she infringe the protected expression of another? In his closely argued and engagingly written new book, Hollywood’s Copyright Wars: From Edison to the Internet (Columbia University Press), Peter Decherney—a professor of cinema studies, communications, and English at the University of Pennsylvania—shows that solutions to these and other copyright conundrums have been excruciatingly slow in coming and often unsatisfactory when they have finally arrived, leaving the filmmaking industry (and filmmaking community writ large) to develop its own parallel regime of governance by contract, custom,  and compromise.

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