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Copyright law generally prohibits copying. Contemporary art has increasingly come to rely on copying. Thus, the two are on a collision course-or so the traditional argument goes. This purported clash between the law and creative practice seemed to reach its apex in the Supreme Court's recently decided Warhol v. Goldsmith, which refused to find that Warhol's famous brand of unlicensed appropriations constituted fair use. The dissent, and much of the commentary published after the decision, largely replicated the traditional argument, warning that the Court's holding will have existential consequences-striking at the very heart of the way in which artists today have been raised to make and understand art. This Article presents qualitative empirical evidence that calls the traditional argument into question for two reasons. First, because the traditional argument overestimates the role of law in artists' day to day practice, and second, because artistic practice may be moving away from the type of wholesale copying (often called "appropriation art") that characterized much of postmodern artistic practice. Through twenty interviews with leading contemporary artists, museum curators, and gallerists, this Article highlights an art world more attuned to the problematic politics and potential inequities in using others' copyrighted works. Artists who engaged in appropriation (incorporating materials from other sources) often sought licenses or informal permissions-not because of any threatened legal consequences, but for ethical or moral reasons. Other artists disavowed appropriative practices altogether, citing the power and capital imbalances that often attend such takings. Where artists did take without asking, it was from corporations rather than individuals, and they did so to comment on how the appropriated image specifically perpetuates systems of unequal power and capital-a form of critical appropriation that Warhol leaves, hopefully, intact. This Article outlines how contemporary artists are developing an ethics of appropriation almost entirely independent from the law-but one that may be more consonant with copyright law than the traditional argument has assumed. [ABSTRACT FROM AUTHOR]

Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation. This Article examines the growing competition problems in the copyright industries and argues that, despite a resurgent interest in antitrust enforcement among policymakers, antitrust alone has not provided adequate solutions. Indeed, in the aftermath of the DOJ's victory against Penguin Random House, the publishing industry is now predicting that Simon & Schuster will simply be stripped and sold for parts, hurting author compensation while doing little to stop industry concentration. Copyright law--including its collection of safe harbors, compulsory licenses, and other industry-regulating regimes--also appears unable to meaningfully address the current reality. The Article argues that antitrust and copyright law cannot work in silos. To find a way forward, we shine a spotlight on an underexplored legal regime: the antitrust consent decrees that continue to regulate certain licensing markets in the music industry by subjecting the organizations ASCAP and BMI to rate setting by the federal courts. We draw on this unusual system--perhaps the only example of antitrust regulation that has directly incorporated a concern with copyright's policy agenda--to propose a new regulatory model based not on discrete, one-off interventions (such as blocking a merger), but rather full regulation of the licensing practices in concentrated content markets. As the consent decree model shows, copyright and competition law can work in tandem, ensuring that antitrust regulation of the creative-content space remains sensitive to copyright's overarching goals of incentivizing creativity and ensuring public access to cultural works. [ABSTRACT FROM AUTHOR]

Government investigations and public scrutiny of Big Tech are at an all-time high. While current legal scholarship and government focus have centered overwhelmingly on whether and how antitrust law and § 230 of the Communications Decency Act can be revised to address platform dominance, scant attention has been paid to another, almost unseen attempt to regulate Big Tech: copyright law. The recent adoption in Europe of Article 17 of the Copyright Directive, which holds internet platforms liable for user-generated creative content unless they obtain costly content licenses, is the most direct example of such regulation--and may serve as precedent for similar changes to U.S. law. Meanwhile, before the courts and in the executive branch, copyright holders are increasingly harnessing anti-Big Tech sentiment to advocate for everything from weakening fair use doctrine to terminating long-standing government oversight of certain concentrated content holders. As recent scholarship laments the role that copyright minimalism played in the meteoric ascent of large technology platforms, this Article argues that increasing copyright protection will not combat monopolies. The seemingly compelling public narrative that laws must be rewritten to combat power by any means necessary ignores the uniqueness of copyright markets as ones dominated not by diffuse, weak licensors bargaining with technology giants, but instead by large, oligopolistic content conglomerates. Changes in copyright laws that increase the cost of content licenses fail to address, and indeed will only enrich, the long-standing dominance of traditional content licensors. They will also entrench and concentrate licensees, creating a bilateral oligopolistic market for copyrighted works. And such changes will, ultimately, hasten the obsolescence of the very content industries that advocated for these reforms, as today's licensees evolve to become tomorrow's licensors. This Article concludes that to fight monopoly, to be truly neo-Brandeisian, one must think beyond copyright law. [ABSTRACT FROM AUTHOR]

The fair use doctrine balances the public's right to make infringing uses of copyrighted works against the owner's wish to exclude such uses. The effect an infringing use has upon the potential market for the copyrighted work -- otherwise referred to as the market harm factor -- is one of the most important factors in making that determination. Yet just how can this hypothetical, potential harm be determined? This is the question that courts and commentators alike have struggled with for as long as fair use has been a defense -- and a question that has become even more important as recent fair use doctrine begins to move towards market harm as the single most important factor in the fair use analysis. Conventional wisdom says that only the infringer may harm the market -- that is, reduce, supplant, or even destroy the consuming public's demand -- for a plaintiff's copyrighted works. This Article argues, instead, that a copyright holder's own actions provide the best evidence of plausible market harm. In examples of what I term a copyright owner's "negative" uses of her own work -- using copyright to police non-copyright interests, engaging in holdup strategies, failing to update Copyright Office records, failing to mitigate damages, or using a copyright for litigation value rather than copyright value -- there can be no market harm because the copyright holder has either made an efficient market transaction impossible or else actively chosen to forgo a copyright market for her work (opting instead for copyright-as-litigation-damages). By turning the lens away from the infringer's conduct and towards the actions of the copyright holder, this Article hopes to open up a broader question about whether we can set fair use doctrine -- and copyright policy more broadly -- in a way that encourages better, more productive uses of copyrighted works not just by would-be infringers, but rather, by the copyright holder, herself. [ABSTRACT FROM AUTHOR]

Trade dress, as a subset of trademark law, can offer potentially perpetual protection to a product's design or packaging features if they aid consumers in identifying a product's source. Yet these protected design features might be valued by consumers not only because of their source identifying function, but also because consumers find the design or package features beautiful, independent of the goodwill generated by the producer. Thus, under the doctrine of aesthetic functionality, manufacturers who produce red-soled shoes or whiskey with a melted wax seal might gain what courts have called a "non-reputation-related" competitive advantage, ultimately warranting the expropriation of the protected product feature into the public domain. This Article argues that courts, in assessing questions of aesthetic functionality, should give particular weight to surveys asking consumers whether they would be better off if competitors were allowed to use a protected trade dress feature in their own products. Just as, under the doctrine of genericide, consumers are able to expropriate word marks if consumers find it more beneficial to associate the language feature of the trademark with competitors' products, consumers should also be able to expropriate trade dress rights of a particular manufacturer if they find it more beneficial to have these design and packaging features available to the manufacturer's competitors. Creating a genericide analog for cancelation of trade dress can further trademark's central goal of protecting consumer welfare. This Article reports "proof of concept" results of our proposed consumer surveys with regard to seven different forms of existing trade dress--including not only Louboutin's red-soled shoes and Maker's Mark's red-drip wax seal, but also Gucci's famous "diamond motif" and Emeco's Navy chair. We implement our surveys as a between-subject randomized experiment that allows us to causally estimate the intensity of consumer preferences as well as the impact of "guiding" subjects on the likely consequences of forgoing trade dress protection. Our results, while at best suggestive, found that judicial assessments of functionality were often not predictive of consumer protection preferences. For example, a statistically significant majority indicated they would be better off if other manufacturers were allowed to produce Emeco's Navy chair design, notwithstanding a contrary judicial holding. We also found that large consumer majorities chose to protect two iconic Veblen goods: the Louboutin shoe and the Gucci Diamond Motif, even when informed that such protection would likely lead to higher prices--indicating a desire to preserve trade dress' power to sustain social distinction. [ABSTRACT FROM AUTHOR]

The ever-expanding reach of trademark law and the narrowing strictures of trademark law's fair use doctrine demand new ways of thinking about defenses in artistic use cases. Trademark law currently acknowledges two types of expressive use as "fair": works that target or comment upon a trademarked work itself and works that somehow "transform" the original. Defending a claim of infringement on these grounds is lengthy, fact-intensive, and, above all, expensive--thereby chilling protected expression. These defenses also do not adequately capture numerous modes of modern-day artistic expression, many of which do not even recognize a unique "original" to comment upon. This Article argues for increasing the use of genericide or genericness defenses in expressive use cases. Genericide is a doctrine in which a formerly-protectable mark is held to be unprotectable because it no longer signifies the source or producer of the product (e.g., Aspirin as a product made by Bayer) but instead a category or genus of product (aspirin as pain reliever that a generic manufacturer can call their product). Defendants in expressive use cases should argue that the formerly-protectable mark has become generic in a specific market or industry as signifying not the producer but a category or genus of product--for example, that Cristal has become, in the rap industry, generic for champagne. Rather than claiming transformativeness or critical commentary in the hopes of winning a fair use defense, artists should emphasize that they did not, for example, reference Louis Vuitton to target or comment on either the mark itself or its producer--but rather that Louis Vuitton has become generic in the art industry as a general way of signaling a luxury product. This defense would have the advantage of invalidating a trademark once and for all within a specific industry. The law's present focus on forcing every expressive use into the fair use defense does art a disservice by recognizing only one type of expressive use--parody--as "fair." [ABSTRACT FROM AUTHOR]

The article discusses the reported relationship between American copyright law and class stratification, focusing on the legal and cultural concepts of originality and lone artistic creation, as well as information about the U.S. Visual Artists Rights Act of 1990 and legal remedies in America. The concept of cultural capital is addressed in relation to America's fair use legal doctrine and transformativeness. Moral rights and the legal aspects of derivative works and copying are examined.

Public concern over bullying has reached an all-time high. The absence of a sensible criminal charging and sentencing regime for the problem recently reared its head in the highly publicized prosecution of Dharun Ravi, who was convicted of fifteen counts and faced the possibility of ten years in prison. This Essay argues that existing criminal statutes used to address the problem, like bias intimidation and invasion of privacy, do not fit neatly with the specific wrongs of bullying. However, recently-enacted "cyber bullying" laws, which give complete discretion to school administrators, are weak and ineffective. I propose another solution: first, to criminalize the act of bullying itself, thus sending a powerful, expressive message that can flip the high school and teenage norm of meanness as virtue. Then, to reinforce that message, sentence a bully to shaming, not imprisonment, which better serves utilitarian, expressive, rehabilitative, and retributive goals specific to the wrongs of bullying. [ABSTRACT FROM AUTHOR]

The author argues that the guidelines of the Architectural Works Copyright Protection Act 1990 restrict the definition of an architectural work and create complications for legal analysis. She examines the work and architectural theory of architect Michael Grave and states that in her opinion a valid reading of the Act has been presented Southern District of New York court in 2005 in the case of Shine v. Childs. She looks at developments in architectural theory and works as well.

A recent spate of child pornography prosecutions of teenagers engaging in "sexting"--where seductive, partially-nude or fully-nude photographs of one teen are transmitted to a lover, who might in turn send it to friends--lends itself to the tempting conclusion that such prosecutions unconstitutionally contravene the teens' First Amendment rights and are not the intended targets of child pornography statutes. This Article, however, examines both the Supreme Court's child pornography jurisprudence and First Amendment doctrine as it relates to minors and concludes that sexting is, in fact, unprotected by the First Amendment because it presents many of the same problems inherent in child pornography. Yet, threatening teens with lengthy jail sentences and criminal prosecutions under statutes designed for sexual deviants does not seem equitable. Therefore, I propose a compromise that is perfectly in line with the Court's harm-based approach to child pornography: a Romeo-and-Juliet carve-out within child pornography statutes that would exempt teenagers who can legally have consensual sex under applicable state law. By creating a rule that affirmatively reduces a prosecutor's power to press charges, this carve-out nonetheless keeps the possibility of a child pornography charge open at the outer edges of sexting behavior while foreclosing such opportunities for prosecutorial evangelism in the normative range. By refraining the dialogue away from First Amendment rights and keeping some sexting on the books as a crime, this Article aims to send an ageappropriate message to teens about sex--that it is intimate and not to be traded for entertainment value or as social currency. [ABSTRACT FROM AUTHOR]

The Visual Artists Rights Act of 1990 (VARA) controversially recognized artists' "moral rights" by protecting their work from alteration or destruction and by preventing the use of an artist's name on a work he did not create. While moral rights are frequently criticized as antithetical to the traditional economic framework of American intellectual property law, Henry Hansmann and Marina Santilli have suggested that moral rights can be justified economically because they vindicate artists' pecuniary interests. This Note, in contrast, argues that VARA also benefits the purchasing and viewing public, especially in an era of factory-made or assistant- produced art works. Specifically, moral rights, like trademark law, can reduce starch costs, ensure truthful source identification, and increase efficiency in the an market. This comparison between trademark law and moral rights shows that the sort of rights regime established by VARA is neither unique nor unprecedented in American law, and that it is highly economic in character. Thus, this Note hopes to reframe the dialogue surrounding moral rights, shifting it away from the classic "personhood" or anti-commodification" arguments that have undergirded the rhetoric up to this day. [ABSTRACT FROM AUTHOR]

The article discusses the issues related to current copyright doctrine and changes in a series of legislation in the media players. It states that the appropriate question that judges, lawmakers, and scholars should ask is whether having any inquiry of the Copyright Clause is the real meaning of progress related to artistic production and output. Moreover, it notes that defining progress as development and growth implies that there is beyond artistic output.