Professor Lawrence Joseph presented a paper,”The Aesthetics of Narrative and Metaphor: Creating a Lawyer Self in Poetry and Prose” at the Stanford Law School’s Symposium “Narrative and Metaphor in the Law” on January 30, 2016. The Symposium, in the words of its sponsors, “brings together scholars in law and related disciplines who have made the most outstanding contributions to the study of narrative or metaphor and the law.” Professor Joseph’s paper will be included as a chapter in a book of the Symposium’s presentations to be published by Cambridge University Press.
This Friday, January 15th, Professor Eva Subotnik will be presenting her paper, Artistic Control After
Death, at the Sixth Annual Tri-State Region IP Workshop at NYU School of Law. Professor Brett Frischmann, of Cardozo School of Law, will serve as the paper’s commentator. An abstract follows:
To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Looked at through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The weakening of the Rule Against Perpetuities, the rise of the honorary trust, and the availability of incentive trusts and conditional bequests all portray a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of works of literature, art, and music seems fundamentally troubling. This article situates the instructions given with respect to authorial works within the constellation of instructions given with respect to—and the policies that govern—other types of bequests. In particular, it considers the enforceability of attempted artistic control through the use of a fiduciary duty. In balancing the competing interests, this article considers the demands of both federal copyright policy and state trust and right of publicity laws. In the end, the article argues that authorial instructions must yield to the needs of the living. In particular, such a view requires that some living person(s) be in a position to make decisions about uses of a work of authorship.
Professor Cheryl L. Wade will present a paper entitled “The African
American Consumer and Predatory Lending” at a conference organized by Indiana Tech Law School and Attorney General Greg Zoeller on November 18, 2015. In her paper, she explores a range of contexts in which African American consumers face economically debilitating discrimination in the mortgage and auto loan contexts.
Professor Anita Krishnakumar presented her work in progress, Reconsidering Substantive Canons, on Monday, November 9, at Cardozo Law School’s faculty workshop series. The paper discusses the Roberts Court’s use of substantive canons over its first six terms and argues that the empirical evidence suggests that many of scholars’ conventional assumptions about this category of interpretive canons are wrong, or at least overstated.
On November 9, 2015, Professor Elayne E. Greenberg presented “Everything You Wanted to Know About Bankruptcy Mediation” to bankruptcy practitioners at the TMA NextGen Leadership Conference. The conference was held at the offices of Weil, Gotshal & Manges.
Professors Marc DeGirolami and Mark Movsesian will present papers later this week as part of the University of Notre Dame Law School’s annual Law Review symposium, which this year commemorates the 50th anniversary of Dignitatis Humanae, Vatican II’s declaration on religious liberty:
The Symposium will begin with an address from Bishop Daniel E. Flores on Thursday, November 5. Bishop Flores currently serves as the Bishop of Brownsville, Texas.
The Symposium panelists will present their works on Friday, November 6. Panelists include
Professors Thomas Berg of the University of St. Thomas School of Law, Paul Horwitz of the University of Alabama School of Law, Christopher Lund of Wayne State University Law School, Mark Movsesian and Marc DeGirolami of St. John’s University School of Law, Brett Scharffs of Brigham Young University Law School, Steven Smith of the University of San Diego School of Law, Anna Su of the University of Toronto Faculty of Law, and Richard Garnett and Phillip Muñoz of Notre Dame Law School. The panels will be moderated by Judge Richard Sullivan of the Southern District of New York.
The Symposium will feature a keynote address from John H. Garvey, President of The Catholic University of America.
Papers will appear in a forthcoming issue of the Notre Dame Law Review. Details about the symposium are here.
Professor Ann Goldweber presented on a panel entitled “Elder Abuse” at New York Law School on October 15, 2015. The Panel was sponsored by the New York Women’s Bar Association and co-sponsored by the NYWBA Criminal Law Committee, NYWBA Elder Law and Disabilities Committee, NYWBA Domestic Violence Committee and NYWBA Matrimonial and Family Law Committee, among others. Professor Goldweber presented on financial abuse of the elderly and civil legal remedies available to victims. Also presenting on the panel were Honorable Deborah Kaplan, Honorable Lori Sattler, Honorable Judy Kluger and Arlene Markarian, Chief Domestic Violence and Elder Abuse Unit, Kings County District Attorney’s Office.
Professor Eva Subotnik will join Professors Jay Dougherty and Jennifer Rothman, both of Loyola
Law School, Los Angeles, today, October 2, for a panel discussion at Columbia Law School’s symposium (information is available here) addressing instances in which concern for the manageability of “the work” augurs a determination that the claimant is not an “author” in the first place. Professor Subotnik will present a talk entitled “The Author Was Not An Author,” forthcoming in the Columbia Journal of Law & the Arts, in which she will look at the early copyright precedents that considered the role of photographer and photographic subject as a way to think about recent disputes over micro-contributions to a work. Specifically, in Burrow-Giles v. Sarony, the author Oscar Wilde was deemed the photographic subject, and not the author—or even co-author—of his celebrated photographic portrait. Sole authorship was reserved for the photographer, Napoleon Sarony. But cases that followed in the wake of Burrow-Giles did touch upon the possibility of authorial contributions by photographic subjects. Judicial discomfort with that possibility, and presumably the need for line drawing, made these claims unsuccessful. Against that backdrop, it is perhaps easier to contextualize the Ninth Circuit’s recent opinion in Garcia v. Google, in which the en banc court determined that an actress was not likely to succeed on a claim that she owned a copyright interest in her own acting performance in a film.
Later this week, Professor Eva Subotnik will be presenting her work-in-progress, Artistic Control
After Death, at a colloquium entitled “The Walking Dead.” The two-day program, hosted by Savannah Law School in Savannah, GA, will bring together legal scholars to discuss an array of topics relating to how death, and the fear of death, affect the law of the living. Professor Subotnik will be speaking on the “Rights of the Dead” Panel, in which she will discuss the extent to which authors and artists should be able to execute enforceable instructions about the uses of their works following their deaths. Information about the program is available here. The abstract follows:
To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Looked at through the lens of general succession law trends, there is some evidence to suggest that strong control is warranted. The weakening of the Rule Against Perpetuities, the rise of the honorary trust, and the availability of conditional bequests all portray a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of works of art,music, and literature seems fundamentally troubling. This article situates the instructions given by authors with respect to literary and artistic works within the types of instructions given by decedents with respect to other bequests. In particular, it considers whether the use of a fiduciary duty to ensure artistic control is an appropriate and enforceable maneuver. Weighing in favor ofsuch enforcement, arguably, are the natural and personhood rights of author-testators as well as the possible up-front incentive effects on them. Weighing against, arguably, are the natural and personhood rights of others as well as the possible long-term effects on cultural development. In balancing these competing interests, this article considers, among other things, the demands of both federal copyright policy and state trust and right of publicity laws. In the end, it argues that authorial instructions must yield to the needs of the development of culture. Such a view requires that some living person(s) be in a position to make decisions about the uses of literary and artistic works.